By Esteban Fernandez
For Times West Virginian
Fairmont — A federal judge has ruled that a Clarksburg man must remain in confined in immigration detention after being detained by ICE May 28.
A lawsuit filed on behalf of Erick Lionel Cristal Cumes alleges Immigration and Customs Enforcement violated Cumes’ constitutional rights in a habeas petition filed in U.S. District Court May 29. The core of the issue is whether the government detained Cumes, who is undocumented, without going through due process. Cumes sought a bond hearing on his status and release from detention.
Judge Thomas Kleeh of the U.. Northern District of West Virginia granted the motion in part. Kleeh found while Cumes is entitled to a bond hearing, Kleeh declined to release Cumes pending the bond hearing.
“While we are disappointed that Erick remains incarcerated after seven weeks already spent in detention following his unlawful arrest, we are glad that Judge Kleeh recognized that his continued detention will be unlawful if the government fails to establish that he is a flight risk or a danger to the community within five days,” Jonathan Sidney, Cumes’ attorney, said. “We are skeptical of Erick’s ability to get a fair hearing in front of an immigration judge. But Erick is neither a flight risk nor a danger to the community in any way. We maintain hope that he will soon be released.”
Immigration and Customs Enforcement detained Cumes on May 28 at the Don Patron Mexican Grill in Weston. He was transported to the Moshannon Valley Processing Center in Philipsburg, Pennsylvania, where he’s been detained since. Cumes is a Guatemalan native, and is married to an American born citizen. The couple has been together for four years.
Cumes argued his detention violates both the Immigration and Nationality Act and the Due Process Clause of the Fifth Amendment because he was detained with an individualized determination of flight risk, danger to the community or any assessment of the available conditions of release, according to the filing.
The case comes down to two competing laws governing Cumes’ case. Sidney argues Cumes is covered by 8 U.S.C. SS 1226 (a), which applies to immigrants who have already been present in the U.S. and are subject to removal proceedings. Under 1226(a), immigrants like Cumes are entitled to an initial custody determination by an immigration officer and prompt bond hearing.
However, the government argued Cumes falls under SS 1225(b)(2), which requires which requires mandatory detention for all individuals pending removal proceedings who enter the U.S. without inspection and admission. This particular code considers a foreign person who is present in the U.S. who has not been admitted or arrives in the U.S. as an applicant for admission under the code’s umbrella. Under 1225(b)(2), individuals covered by the code are detained for a removal proceeding if an immigration officer determines the individual is not clearly and beyond a doubt entitled to be admitted into the country.
Kleeh cited Jennings v. Rodriguez, a 2018 Immigration Supreme Court Case, to determine which law Cumes fell under. In Jennings, the Supreme Court found the distinction between “aliens seeking admission into the country” versus “aliens already in the country” require the broader context of U.S. immigration law to make sense.
“The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law,” Kleeh wrote. “For those who have already entered the United States, the Court has recognized additional rights and privileges not extended to those in the former category who are merely on the threshold of initial entry.”
Kleeh found “like the vast majority of courts to consider the issue,” 1225(b)(2) does not apply to people like Cumes who have been present in the U.S. for an extended time. Kleeh wrote Cumes is entitled to a bond hearing where the government has a burden of establishing that Cumes poses any kind of danger to the community or that he represents a flight risk.
“Absent this showing, petitioner’s continued detention would be unlawful,” Kleeh wrote.
Over 50 people showed up to support Cumes in Kleeh’s courtroom for a June 25 hearing and argued Cumes was a member of the community in good standing.
Kleeh ordered a bond hearing on or by July 14.
Lauren Cristal, Cumes’ wife, just wants her husband back home. The pair married in April.
“Everyday, I have woken up hoping it would be the day I got the phone call saying he was being released and that I needed to come pick him up,” Cristal said. “I’ve imagined that moment in my head so many times. I’ve been keeping our house clean and his favorite foods in the fridge, just in case he got to come home. It didn’t happen the way I had hoped, and I’m heartbroken. I’m trying to remain hopeful that we’ll be together again soon.”
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