This past Christmas Eve was supposed to be a very special one for Yimy Aldair Benitez Lopez. A 25-year-old Honduran immigrant who is transgender and gay and has made a mark as a drag performer in Queens, they looked forward to the holiday celebration to mark the completion of their gender transition.
But seven weeks ahead of Christmas, Benitez Lopez, who is undocumented, saw their world thrown into disarray. On November 7, they were apprehended by US Immigration and Customs Enforcement outside of Nassau County criminal court. ICE planned to immediately put Benitez Lopez on a plane to Honduras, but an emergency motion filed by Make the Road New York, a social justice group working on behalf of immigrants, blocked the deportation.
Make the Road NY, in its motion to a Department of Justice immigration court, argued that Benitez Lopez never received notice of a deportation hearing that took place shortly after they arrived in the US, when they were 18 — where they were ordered deported in absentia — and that their case should be reopened. Benitez Lopez has recounted a severe anti-gay attack they suffered as a youth in Honduras, and is now seeking asylum in the US based on their continued fear of their assailant and the general rise in anti-LGBTQ violence in that country.
“The 24th of December was supposed to be the happiest day of my life, the day of the beginning of the new path to live in the world as I am: a transgender woman,” Benitez Lopez said in a written statement provided to Gay City News by Make the Road NY. “It is very difficult for me that this dream was not to be realized on this day. But I know that in the future, I will return to this path and I will live in the world as I am.”
An immigration judge last month rejected Benitez Lopez’s motion but issued no written opinion explaining that decision. Their case is now being appealed to the Board of Immigration Appeals (BIA), but while those proceedings play out Benitez Lopez has been subjected to the harsh conditions of detention in an ICE facility in Hudson County, New Jersey.
For a transgender person, that detention poses more than just the typical hazards of mass incarceration. Benitez Lopez fears violence based on their trans status — several trans women have died in ICE custody in the past several years — and so is presenting as a male and has stopped their hormone treatment.
On January 13, Make the Road NY filed a parole request with ICE to allow Benitez Lopez to be released from detention pending their BIA appeal so they may resume their hormone treatment. A 2015 ICE directive specifically called for broad discretion in considering individual factors in the determination of whether a transgender person’s health needs can be met in detention.
Now, Benitez Lopez must await a parole decision by ICE and then a ruling on their appeal before the BIA, which has not yet heard their case.
Benitez Lopez would not be in the dire situation in which they find themself but for the aggressive tactics used by ICE in the years since Donald Trump became president. In 2016, the last year of the Obama presidency, there were 11 arrests by ICE agents in or near courthouses in New York State, according to the Immigration Defense Project. By 2018, that number had grown to 178, despite the fact that the state court system’s rules now bar arrests on court premises unless agents have a judicial warrant or order.
Benitez Lopez’s appearance in court in November represented their first brush with the law, resulting from a domestic violence arrest. According to Make the Road NY, that case is headed for dismissal, with the complainant not asking for a protective order. The Nassau County criminal court judge released Benitez Lopez on their own recognizance while the case proceeds.
ICE, on the other hand, having failed in its zeal to deport Benitez Lopez immediately, has insisted that they remain in detention as their appeal continues to work its way through the system.
“I want to use my voice to fight for my freedom and the freedom for other trans people in detention, because I know that there are those of us who are silenced and stay in silence in detention centers across the country because of fear of punishment if we speak out about our mistreatment,” Benitez Lopez said in their written statement.
The parole request for Benitez Lopez is part of a larger initiative to ensure better justice for immigrants seeking sanctuary from persecution in their home countries. A statewide coalition of advocates, including Make the Road NY and the Immigration Defense Project, are pushing for enactment of the Protect Our Courts Act, which would broaden and codify in New York law the court system’s ban on ICE arrests without a judicial warrant or order. Drawing on concepts from federal criminal justice guidelines that protect individuals who are traveling to and from courthouses from arbitrary arrest in order to guarantee their access to the justice system, the legislation would create a broader zone of protection than the current court system rules provide. An October study published by Ceres Policy Research found that the threat of detention by ICE has a chilling effect on immigrants and their families participating in criminal, family, and civil court proceedings.
Supporters of the measure will be in Albany on January 14 to lobby legislators. Sponsored by out gay Manhattan State Senator Brad Hoylman and Long Island Assemblymember Michaelle Solages, both Democrats, the bill has an additional 33 co-sponsors in the 63-member Senate and 72 co-sponsors in the 150-member Assembly.
Yaritza Mendez, Make the Road NY’s associate director of organizing, underscored how Benitez Lopez’s case illustrates the necessity of the new legislation.
“Yimy’s case demonstrates exactly why we need to pass the Protect Our Courts Act,” Mendez said. “Yimy has a pending criminal case which is headed towards a dismissal but when they went to court in November, ICE followed them outside of court and arrested them across the street from the courthouse. Despite the fact that Yimy had already been released on their own recognizance by a Nassau County criminal judge, they have now spent the last two months in ICE detention in New Jersey, where they have not been able to attend criminal court or meet with their public defender. The Protect Our Courts Act would prevent this unnecessary detention, make sure that New Yorkers like Yimy have access to the courts, and keep our community members with their loved ones, where they belong.”
Joshua Joseph, a spokesperson for Solages said that the assemblymember is “gung-ho” on getting action on the Protect Our Courts Act in the new legislative session, saying the measure is among her key priorities for 2020.
In a written statement, Hoylman said, “ICE arrests in and around courthouses have skyrocketed by an astonishing 1736% between 2016 and 2018. That has a chilling effect on our judicial system, preventing victims, witnesses, defendants, and family members — especially those who are from marginalized communities — from feeling comfortable participating in our judicial system. I’m proud to sponsor the Protect Our Courts Act with Assemblymember Michaelle Solages which will finally end these disruptions and allow our courts to operate with fairness and due process.”
