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Is it legal to keep someone detained after they win a court case? The Washington office of Immigration and Customs Enforcement (ICE) admitted the answer to that was no, as the group settled a lawsuit with the American Civil Liberties Union (ACLU). The deal, which involves the Farmville Detention Center as it is connected with the Washington office, both triggered the release of multiple current detainees in ICE custody and sets up a policy that all detention centers in the region have to follow. 

“If you win your immigration case in Virginia, ICE is supposed to let you go – but instead, it’s been unlawfully detaining dozens of people for months in violation of its own policies,” said ACLU of Virginia Attorney Sophia Gregg.

It’s a lawsuit with several local connections. German Fuentes and a man identified as “Mr. Gonzalez” both won their immigration cases, given permission to stay in this country. That part isn’t in dispute. And yet, more than three months after winning that ability to stay, both men were still being held in the Farmville Detention Center, when the ACLU filed its lawsuit. Two weeks after the lawsuit was filed, both Gonzalez and Fuentes were released, along with a third man, Carlos Guzman Lopez, who had been held at the Caroline County ICE facility. 

It doesn’t apply to all detainees. As we mentioned, these were people who won their asylum requests, with judges ruling that they couldn’t return to their home countries without facing persecution. The detention centers managed by the Washington office of ICE, however, kept people detained for months, as the agency looked for alternative countries to deport them to. To be clear, the U.S. can’t just drop a detainee in a random country. That third country has to accept them, which only happens in an estimated less than 3% of cases.

Farmville Detention Center policy established

And in each of the Virginia cases, a judge ruled in the detainee’s favor. In March 2023, an immigration judge ruled that Fuentes would likely face persecution or torture if he was sent home to El Salvador. One month later, the judge found the same for “Mr. Gonzalez” if he returned to Honduras. And the same went for Guzman Lopez in May of 2023, should he return to El Salvador. 

Now ICE and its detention centers have to follow specific guidelines. Unless the agency can show exceptional circumstances warranting their continued detention, ICE will now be required to release all immigrants in its custody in Virginia who have already won their immigration cases. As of June 2024, ICE held more than 34,500 people in its facilities according to Transactional Records Access Clearinghouse. Anyone winning their case has to be “promptly considered for release” rather than held for months. 

The settlement also requires ICE’s Washington office to provide custody reviews for all detainees in Virginia detention centers who have been granted asylum, withholding or other relief. That has to be completed by Dec. 31, 2024. Now as mentioned earlier, some detainees are granted asylum, allowed to live in the U.S. due to fear of persecution in their home country. But there are two other options. And this settlement gives a bit of structure to both. 

Other options beyond asylum

First, they can grant you “withholding of removal” protection. That is what happened with the man named “Mr. Gonzalez” in the lawsuit. 

Withholding of removal is similar to asylum. According to the American Immigration Council (AIC), a person under a “withholding of removal” order is protected from being deported to their home country. That person also receives the right to remain in the United States and work legally. But there is a catch. “An immigration judge (still) enters a deportation order and then tells the government they cannot execute that order,” AIC officials said in a statement on their website. While the person is protected from being deported to their own country, “the government is still allowed to deport that person to a different country, if the other country agrees to accept them,” the council explains. 

In this case, that’s what the ACLU claims happened to “Mr. Gonzalez”. He was held in custody while immigration officials tried to find another country that was willing to take him. 

Now as mentioned before, there’s a second way the judge can rule in a case like this. He or she can grant deferral of removal. That’s what happened to German Fuentes in Farmville. 

This means a judge has put in a deportation order, but tells the government not to enforce it right now. Now the American Immigration Council says a judge issues this, rather than the withholding mentioned above, to people who have a criminal record or could be considered some type of security risk due to other reasons determined by the court.

Basically, yes, they’ve proven returning home would be dangerous. But the judge has some concerns about their stay here.

It’s not quite the same as withholding. Anyone granted deferred removal can be held in detention and aren’t automatically given employment authorization. They can be released and given that approval, however, by order of the regional ICE director. Now existing cases in each of these situations, also have to be reviewed by Dec. 31. 

From now on, the review and final decision has to take place within 10 business days from when the judge’s order is issued.