San Salvador, El Salvador, from the slope of El Boqueron, a volcano that overlooks the Salvadoran capital, on July 24, 2021. A lesbian woman from El Salvador who has been in U.S. Immigration and Customs Enforcement custody since June 2017 has asked a federal court in Louisiana to order her release. (Washington Blade photo by Michael K. Lavers)
The American Civil Liberties Union and the ACLU of Louisiana asked a federal court Sept. 6 to order the release of a lesbian mother from El Salvador who has been in U.S. Immigration and Customs Enforcement custody since June 2017.
The writ for habeas corpus petition the ACLU filed in U.S. District for the Western District of Louisiana in Lafayette on Jessica Patricia Barahona-Martinez’s behalf notes she and her three children entered the U.S. on May 31, 2016, “fleeing persecution she faced in El Salvador as a lesbian, and because the government had falsely identified her as a gang member.”
ICE released her “under conditions of supervision” and she “complied with these conditions for more than a year.”
ACLU Staff Attorney My Khanh Ngo told the Washington Blade during a telephone interview Sept. 7 that Barahona-Martinez, 40, was living with her sister and other family members in Woodbridge, Virginia, when ICE arrested and detained her on June 26, 2017.
“The sole reason for her arrest and detention was an Interpol Red Notice that was based on a Salvadoran warrant related to a charge of aggravated extortion for up to $30 — a charge for which she had initially been acquitted,” reads her petition.
She was at the Virginia Peninsula Regional Jail in Williamsburg, Virginia, before ICE transferred her to the Caroline Detention Facility in Bowling Green, Virginia, in October 2018. Barahona-Martinez arrived at the South Louisiana ICE Processing Center, a privately-run detention center the GEO Group, a Florida-based company, operates in Basile, Louisiana, in October 2020.
Barahona-Martinez’s petition notes an immigration judge has granted her asylum twice, most recently in November 2019, “on the grounds that she faces persecution on account of her sexual orientation.” The government appealed and the Board of Immigration Appeals, which the Justice Department oversees, ruled in their favor.
“In sustaining the government’s appeal of that grant, the Board of Immigration Appeals (‘BIA’ or ‘board’) did not address the merits of her asylum claim,” reads Barahona-Martinez’s petition. “Instead, in a two-to-one decision, over a strong dissent, it held that petitioner was ineligible for asylum under the ‘serious nonpolitical crime’ bar. The majority relied on the then-pending Interpol Red Notice and the Salvadoran warrant to find there were ‘serious reasons’ for believing she had committed such a crime. The dissenting Board member pointed out that petitioner had not only been acquitted of the alleged offense once, but had also submitted credible evidence to back up her claim of innocence.”
Her petition notes she appealed the Board of Immigration Appeals’ decision to the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, “which granted her a stay of removal pending appeal, reflecting it assessment of the likelihood of her success on the merits of her appeal.” Her petition further indicates the Commission for the Control of Interpol’s Files, an independent body that oversees whether Interpol properly processes personal data, in April “permanently deleted the Interpol Red Notice that had been lodged against Ms. Barahona-Martinez” after her new lawyer made the request.
“Her pro bono counsel has since filed a motion to reopen proceedings before the BIA on this ground, as it is relevant to the board’s analysis of whether the serious nonpolitical crime bar applies to petitioner’s case and renders her ineligible for asylum,” reads the petition. “The government has agreed to hold her appeal in abeyance in light of the pending motion to reopen, yet ICE continues to detain Ms. Barahona-Martinez as her removal proceedings continue.”
U.S. Rep. Mike Quigley (D-Ill.) in June 2020 told the Blade that detainees at the South Louisiana ICE Processing Center did not have access to toilet paper or soap for nine days. The Illinois Democrat also said staff were not required to wear masks and they did not implement social distancing policies to mitigate the spread of COVID-19.
Ngo said Barahona-Martinez is at increased risk for COVID-19 because she has asthma.
Ngo said a doctor gave Barahona-Martinez Tylenol when she showed COVID-19 symptoms, “and unsurprisingly she got extremely sick.” Ngo told the Blade that Barahona-Martinez a few weeks ago went to the emergency room because of “excruciating stomach pain.”
“It’s clear that she’s been deteriorating in detention, both physically and mentally,” said Ngo.
Ngo told the Blade that Barahona-Martinez’s asthma has become worse since arrived in Louisiana, and suffers panic attacks nearly every day. Ngo said the only way that Barahona-Martinez can “get back into a mental state that will keep her going” is by talking with her family.
“The food is rotten. She is afraid because she is gay in attention. She’s been harassed and threatened by both officers and other detainees because of her sexual orientation,” said Ngo. “She doesn’t feel safe there at all. She tries to keep to herself.”
Ngo said Barahona-Martinez works up to five hours a day in the facility’s kitchen. She earns around $3 a day.
Transgender woman murdered after US deported her to El Salvador
Discrimination and violence based on sexual orientation and gender identity remains commonplace in El Salvador.
A court in San Salvador, the country’s capital, in 2020 sentenced three police officers to 20 years in prison for the murder of Camila Díaz Córdova, a transgender woman.
Díaz asked for asylum in the U.S. because of violence against LGBTQ and intersex Salvadorans. The U.S. deported her in 2017, and her friend reported her missing at the end of January 2019. Díaz died at a San Salvador hospital on Feb. 3, 2019.
Barahona-Martinez is from San Salvador.
President Nayib Bukele in March 2022 declared a state of emergency that allowed his government to crackdown on rampant gang violence.
The Associated Press in July reported Salvadoran authorities have detained upwards of 70,000 people. Human Rights Watch and other groups say arbitrary arrests, torture of detainees and other human rights abuses have taken place since the crackdown began.
“The situation in El Salvador is much worse,” Ngo told the Blade. “It was bad in 2016 when she [Barahona-Martinez] fled, but with the state of emergency that’s in place right now, there’s been a lot of reporting about how much worse conditions are in the prisons against people who are accused of being with the gangs. There’s a lot of arbitrary detentions and killings and abuses.”
Ngo said Salvadoran authorities tortured Barahona-Martinez after they arrested her. Ngo said her former criminal defense attorney told her that Barahona-Martinez would be “in danger if she were returned” to El Salvador.
“She said, as much as possible, please keep her in the United States,” said Ngo. “She was known as a lesbian back then. It’s clear coming back they would know that she had applied for asylum in the United States and there’s the potential retaliation for that. She’s really risking her life if she’s sent back there.”
Barahona-Martinez’s petition names Homeland Security Secretary Alejandro Mayorkas, U.S. Attorney General Merrick Garland and South Louisiana ICE Processing Center Warden Eleazar Garcia are among those named as defendants.
ICE and the Department of Homeland Security have not responded to the Blade’s request for comment.
Barahona-Martinez, for her part, says she simply wants to be reunited with her children.
“I always think back on that day in 2017 when I was arrested by ICE and taken away from my children. They were so young at that time. I never thought that I would still be in detention six years later. I have missed so many of their birthdays, graduations, and other big life events,” she said in a statement to the ACLU. “Being separated from my children for this long has been so difficult, but I am fighting for a future here with them. All I want is the chance to show a judge why we should be reunited.”
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