One Immigration System, Two Outcomes for Cuban Couple Seeking Asylum

José Antonio Hernández Viera says he experienced economic and political persecution in Cuba because of his family’s opposition to the Castro government. His wife is on the road to becoming a legal permanent resident in the U.S. He faces deportation Monday

A caress and a kiss.

That’s all Angela Mairielys Lazo Torres had time for before guards escorted her from her husband’s hospital room after less than a minute. It had been seven months since she last traveled to Louisiana to see José Antonio Hernández Viera, 40, in detention, and she wasn’t even given the time to tell him, “I love you.”

“They didn’t let me see him," Lazo Torres, 36, said of the brief interaction. "They didn’t let me speak to him. They didn’t let me do anything."

That was on Wednesday, June 19. Then, radio silence for the next two days. When she and an outreach paralegal from the Southern Poverty Law Center returned to Acadia General Hospital in Louisiana on Thursday, they were told Hernández Viera no longer appeared in the system. Attorneys contacted the hospital and an assistant warden at Pine Prairie ICE Processing Center, but no one gave them any information about his condition after hip replacement surgery.

“I didn’t know how he was, or where he was, or what was happening to him,” Lazo Torres said.

On Friday, Hernández Viera was transported back to Pine Prairie in handcuffs and chains, he said, his body pushed and jostled into a vehicle with no wheelchair ramp. He was then whisked back to the hospital for more drugs, only to return to Pine Prairie in the early hours of the morning, he and an SPLC lawyer said. As he lay across the seat during the roughly hour-long drive, his head painfully bumped into plastic on one of the doors. 

Around 3 a.m. Saturday, June 22, Hernández Viera was finally allowed to call Lazo Torres.

“I told my wife that I felt so bad, in such a bad condition, that I wouldn’t live,” he told NBC.

His suffering was nowhere near over, according to his account. Back at Pine Prairie, he was left in his wheelchair overnight, he said, from 3 a.m. until around 9 a.m. And during the days after his surgery, he tried not to eat much because he feared if he had to use the toilet, no one would help him.

He was treated like an animal, he felt — ”like a person without rights, totally helpless.”

U.S. Immigration and Customs Enforcement spokesperson Bryan Cox told NBC that ICE could not give specifics about the medical treatment of a particular detainee without his or her written consent, but added that “ICE is committed to ensuring the welfare of all those in the agency’s custody, including providing access to necessary and appropriate medical care.”

Hernández Viera is an asylum seeker from Cuba, where he faced economic and political persecution because of his family’s opposition to the Castro government. He says he was detained multiple times there and beaten in front of his family once. He has never been convicted of a crime, according to attorneys from the SPLC, and ICE in a document from December did not designate him as a security risk.

“These are not people who should be looked at as demons,” said Martin High, a Southeast Immigrant Freedom Initiative volunteer attorney. “They’re just regular people that have been in a really bad situation that has nothing to do with their choices in life.”

In May 2018, Hernández Viera applied for admission into the United States in Hidalgo, Texas, at a port of entry— as asylum seekers are supposed to do. During his credible fear interview the following month, a first hurdle in the asylum process, the interviewer checked boxes indicating that he had established a credible fear of persecution based on his "political opinion."

More than a year later, he was still in a facility run by the Florida-based detention company GEO Group — despite the fact that asylum seekers who establish a credible fear are supposed to be eligible for parole, where they await their immigration hearings outside detention. He had a sponsor. Both his wife and 3-year-old daughter were waiting for him. Instead, he was being held in Louisiana, where a hip problem that was once manageable quickly deteriorated so that he could not even walk.

Courtesy of the SPLC

Now, he is staring down deportation. ICE says he is unlawfully present and "received all appropriate legal process" before being ordered removed in December and denied an appeal in May. 

Two weeks after surgery, he was not granted a stay of removal, and Friday he was moved to a detention center in Houston. An attorney from the SPLC said they have confirmed with an ICE official that he will be deported Monday.

ICE does not discuss future operations and did not confirm if or when Hernández Viera would be removed. 

“I think, if he were returned to Cuba right now,” said High, “I think he’d be headed to prison right away and he’d never get out.”

Hernández Viera had two more chances to remain stateside: a petition for review in the fifth circuit court of appeals, where he is represented by High, and a habeas petition. Petitions for review are usually tough to win, said High, who will continue to pursue it even if Hernández Viera is deported so that he might be allowed to return to the U.S.

Then, there was the petition for a writ of habeas corpus claiming that Hernández Viera's detention was unlawful, for which attorneys had requested an emergency hearing. Ironically, one of Hernández Viera's last chances to stay with his family hinged on the facts of the hellish treatment he said he lived through since surgery left him at the discretion of ICE’s care.

But the Louisiana court where the petition was filed no longer has jurisdiction over the case since Hernández Viera was transported to Texas, which one SPLC attorney said was likely the reason why ICE moved him out of state. Now, the SPLC will try to file the petition in Houston — a final effort to keep him in the country. 

Lazo Torres has the same asylum claim as her husband. But though they say they were persecuted together in their home country, America’s immigration system has treated them differently.

She came to the U.S. with her two daughters in February 2018, while her husband lagged behind. When she and the girls arrived here, they were held for 20 days at a family detention center in Texas and then released, she said.

She is now applying for a green card based on a provision in the Cuban Adjustment Act that says Cubans who have lived in the U.S. for at least a year can become lawful permanent residents. Meanwhile, he will likely be deported in the next few days. 

During a recent call with Hernández Viera, Lazo Torres said their 3-year-old daughter “started to cry because she wanted to see him.”

“She asks for him every day,” Lazo Torres said.

Courtesy of the SPLC
José Antonio Hernández Viera sits with his daughter, who is now 3 years old.

In November, after six months in custody, the SPLC submitted a parole request for Hernández Viera (he had previously been denied parole). Attorney Laura Rivera wrote how Hernández Viera’s 7-year-old daughter in Cuba had an often terminal strain of cancer, and how Hernández Viera would be more able to actively communicate with her and help to support her from outside of detention. She also mentioned his toddler in the U.S., who had begun to suffer from asthma and bronchitis that her physician said was due to the “emotional distress from not having her father around.”

Hernández Viera would not begin to accrue time in the U.S. until he was released from detention. To be able to apply for a green card like his wife, he had to be granted parole.

In December, Hernández Viera represented himself in his asylum hearing. It can be difficult to access counsel while detained, especially in more remote facilities such as Pine Prairie, and migrants are not guaranteed representation in civil cases. The judge in his case, who had a recent 83.8% asylum denial rate, compared to 65% nationwide in 2018, ruled that he had not met the burden of proof to establish that he would be persecuted or tortured if he returned to Cuba. Then, ICE denied his parole request — not because he was a flight risk or a danger to the community, but because he had been ordered removed. That meant he was confined at Pine Prairie during his appeal, which was denied months later.

“They’re owners of him and they’re not going to let him leave for any reason,” said Lazo Torres.

Hernández Viera’s experience coincides with other detainees under the purview of the New Orleans ICE field office, which in 2018 approved fewer than 2% of parole requests. “It’s awesome power to deprive people of their physical liberty,” Rivera said, adding that who gets out and who stays in is “arbitrary.”

“I think that José Antonio’s mistreatment and prolonged detention is just an extreme example of what happens to immigrants in ICE custody day in, day out,” she said. 

In Cuba, Hernández Viera had hip problems, but he could still walk. 

Then, he came to the U.S. and was detained by ICE.

Hernández Viera wrote on a GEO Group request for health services dated to January: “I would like to know what they are going to do with me as I can no longer tolerate the pain in my hip and they don’t attend to me. Please I need an answer. Thank you.”

A month later, he again requested health services: “I have problems with the medicine that they’re giving me, it gives me nausea and drowsiness...”

And in March, he wrote this: “I have an unbearable pain, every time that I go to the doctor or the attorney visits me when I get there the pain is stronger… Moreover, I can no longer take the medicine that relieves me some.”

Progress notes from March indicate that Hernández Viera was diagnosed with severe osteoarthritis in his left hip and that he was already waiting for surgery, which would not be performed for three more months. In the meantime, he was doled out a cocktail of drugs — including opioids — that discombobulated him so much he had to clutch the walls to walk.

When asked about Hernández Viera's medical treatment, GEO Group Executive Vice President Pablo E. Paez referred questions to ICE. 

Finally, doctors scheduled Hernández Viera’s surgery for June 19. Lazo Torres flew to Louisiana from Tampa, Florida, for the operation, but she was not allowed to see her husband. The outreach paralegal who went with her, Jaclyn Cole, was also denied access to Hernández Viera at the hospital, even though she needed for him to sign urgent documents.

On June 21, attorneys from the SPLC received a letter from an associate general counsel for the Lafayette General Health System, which includes Acadia General Hospital. The letter claimed that the hospital had been told Hernández Viera was a security risk and could not have any visitors, including counsel. It noted that two guards were posted to his room, and that the hospital had been told not to share any information about him.

“Our hospital is in the middle of an issue between SPLC and ICE. In this situation, we must defer to law enforcement while Mr. Viera is in our hospital for the safety of Mr. Viera, the other patients, our staff and the ICE officers,” the associate general counsel wrote. 

Once Hernández Viera returned to Pine Prairie, the compression socks that were meant to keep him from getting blood clots were taken from him for days, said CJ Sandley, one of the attorneys working on his habeas petition. Both Sandley and Lazo Torres said Hernández Viera had gone for physical therapy only once since his surgery. There were no grab bars for toilets and showers to keep him from further injury, Sandley said, and she heard reports that there were bugs in his infirmary cell.

Dr. Allen Keller, an associate professor of medicine at the New York University School of Medicine and co-founder of the Bellevue/NYU Program for Survivors of Torture, said Hernández Viera is suffering from post-traumatic stress and depression as a result of trauma in Cuba and prolonged detention in the U.S. After visiting Pine Prairie, he was concerned Hernández Viera was not getting adequate physical therapy and said immigrant detention did not lend itself to recovery from hip surgery.

“This is a real important window right now, these next few weeks following the surgery,” Keller said. “In my professional opinion, it’s essential to his physical and mental well-being that he be released immediately.”

It’s these conditions on which Hernández Viera’s second legal option, the habeas petition, relied. His attorneys argued that he should have been released from custody or provided adequate medical care.

On Friday in the early morning, Lazo Torres said she heard her husband was being moved from Pine Prairie and would be returned to Cuba; the SPLC later confirmed that he had been moved to Texas and was being deported Monday. 

“Sending him back to Cuba,” said Keller, “especially as he is recovering from hip replacement, could be the equivalent of a death sentence.”

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