Rita Gaither
Abigail Hernandez at a community event.
Abigail Hernandez was elated when it seemed she was about to be released from the Monroe County Jail and reunited with her family. But her hopes soon turned to despair.
On June 27, two vans of Immigration and Customs Enforcement agents pulled up to the jail, on the outskirts of Rochester, New York. Agents entered and came out a short time later with Hernandez in handcuffs. She was taken to an ICE detention facility about forty miles away.
That’s where she remains. The U.S. Citizenship and Immigration Services has revoked Hernandez’s Deferred Action for Childhood Arrivals (DACA) status, paving the way for deportation to Mexico. It’s a country that Hernandez, now twenty-one, left with her mother at age three.
[Update: On July 26, a federal judge ruled that an immigration judge wrongly decided that Hernandez should remain in immigration detention while her appeal is being considered. The judge ordered another bond hearing in immigration court within ten days, and if the government could not prove Hernandez is dangerous, she should be released on bond. The new bond hearing was held but on August 5, Immigration Judge Philip J. Montante, Jr. denied Hernandez bond.]
“She would be taken advantage of. She would not survive,” says Rita Gaither, a teacher who has worked with Hernandez over the past six years in a special education program in the Rochester school district for students with limited cognitive abilities.
The case illuminates broader concerns over how ICE treats those with mental disabilities, a problem that has intensified under the Trump Administration.
“Even the most vulnerable are being swept up,” says Sarah Sherman-Stokes, associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.
Hernandez’s trouble with ICE began in February when she was arrested by Rochester police and charged with making a terrorist threat on the Facebook page of East High School, which she once attended.
‘Even the most vulnerable are being swept up.’
The posting—“I’m coming tomorrow morning and I’m going to shoot all of ya bitches”—was made the day after the February 14 school shooting in Parkland, Florida. Those who know Hernandez say it was not a genuine threat. Rather, says her stepfather, Eufracio Flores, “She needs help.”
East High’s superintendent, Shaun C. Nelms, sent a letter urging the county court and ICE to “consider granting leniency in any actions taken against Abigail Hernandez.” The letter says she “was unaware of the nature and effect of her conduct and is not culpable for her behavior.”
In late June, a plea agreement was worked out that resulted in dropping the felony terrorist threat charges against Hernandez in exchange for her pleading guilty to the misdemeanor of falsely reporting an incident.
But ICE won’t let go of Hernandez and has her in a deportation proceeding.
In February, Hernandez was released from county jail, with her family posting $15,000 bail. But no sooner had the bail been posted than ICE nabbed and detained her at its detention facility in Batavia. Immigration Judge Steven Connelly denied her request for release from Batavia.
On March 22, Hernandez was transferred back to county jail, where she remained until her misdemeanor plea on June 27. After her court appearance that morning, Hernandez was returned to the jail and prepared to be reunited with her family for the first time in four months.
“She was jumping for joy. ‘I’m getting out. I’m getting out,’ ” says Gaither, who was at the jail to help Hernandez pack up.
But the narrative changed when ICE agents arrived at the jail before Hernandez could leave. All Gaither could do as she watched Hernandez being led to a van was to shout, “We love you, Abby,” and “Keep your head up.” Now, says Gaither, who has visited Hernandez three times in Batavia, “She seems to have lost hope.”
Persons with mental disabilities account for at least 15 percent of immigrants in detention, according to a 2010 report by the American Civil Liberties Union and Human Rights Watch.
Some progress toward providing safeguards for immigrants with mental health disorders and disabilities was made during the Obama Administration. It chose not to appeal a 2013 federal district court ruling ordering detainees in California, Washington, and Arizona to be screened for a “serious mental disorder or defect” and provided with legal representation if they are determined to be incompetent to represent themselves. The Justice Department agreed to extend these protections to other states.
Persons with mental disabilities account for at least 15 percent of immigrants in detention.
But there are questions about how effective the court order has been. Sameer Ahmed, a lawyer on this case with the ACLU in Southern California, says he has heard of detainees not being properly screened by ICE for mental disabilities. “I think it happens relatively frequently,” Ahmed says. “If we find out about them, we’ll write to the government lawyers.”
Hernandez’s sentencing for the plea bargain has been delayed until mid-August, after her lawyer in the criminal case, Michael Geraci, asked for additional mental health testing under a provision of New York law. He says being detained by ICE “really took quite a toll on her.”
The perils of ICE’s detention system are highlighted in a new report: “Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention,” a joint effort by Human Rights Watch, the American Civil Liberties Union, the Detention Watch Network, and the National Immigrant Justice Center.
Between March 2010 and June 2018, seventy-four immigrants died in detention, with the twelve deaths in fiscal year 2017 being the highest since fiscal 2009, the report documents. Substandard medical care contributed to the deaths of eight of fifteen detainees whose “Detainee Death Reviews” by ICE were recently examined by independent experts. These deaths occurred between December 2015 and April 2017.
James Goodman
Supporters of Abigail Hernandez write letters to her at a rally on June 30th.
ICE, the report says, “has proven unable or unwilling to provide adequately for the health and safety of those it detains.” It urges Congress to press ICE to decrease its use of detention.
For now, all Hernandez can do is hope that support from the community will turn the tide in her favor. At a June 30 Rochester rally against family separation, 158 letters of support were gathered for her.
“It’s tragic and there is a lot of injustice,” says local school board member Beatriz LeBron. “She doesn’t have the mental capacity to fully understand what’s going on.”