U.S. District Judge Paul A. Crotty’s decision, however, stays Villavicencio’s removal so that he can continue pursuing permanent residency. To deny him that opportunity, Crotty wrote in the order, would violate his rights.
“Although he stayed in the United States unlawfully and is currently subject to a final order of removal, he has otherwise been a model citizen,” Crotty, a George W. Bush appointee, wrote in the order. “Petitioner married . . . a United States citizen. He now has two children, both of whom are United States citizens. He has no criminal history. He has paid his taxes. And he has worked diligently to provide for his family.”
Crotty’s decision came hours after oral arguments in the case Tuesday afternoon, a hearing that drew scores of protesters outside the federal courthouse in Manhattan. The government argued that Villavicencio could continue his bid for a green card in Ecuador — but Crotty, unconvinced by the government’s justification for deporting him, questioned what purpose this would serve in the interest of justice.
“Well, the powerful are doing what they want, and the poor are suffering what they must,” he said, according to multiple media reports of the hearing. “I mean, is there any concept of justice here, or are we just doing this because we want to? Why do we want to enforce the order? It makes no difference in terms of the larger issues facing the country.”
Questioning the purpose of Villavicencio’s continued detention, he asked, “What is the danger to the community for a man who has committed no crime?”
A spokesman for the U.S. Attorney’s Office in the Southern District of New York declined to comment.
Villavicencio entered the United States illegally in 2008 and agreed to voluntarily leave the country at an immigration hearing in 2010, according to Crotty’s order. Instead, he remained in the country, married Sandra Chica, a U.S. citizen, and started a family. In February, Chica helped him submit a “petition for alien relative” asking the government to recognize Villavicencio as her spouse, which is the first step in seeking a green card, according to the order. But before U.S. Citizenship and Immigration Services could process the form, Villavicencio was arrested.
It was a routine delivery, Villavicencio would soon tell the New York Post from behind bars. In fact, he had delivered pizza to the Fort Hamilton Army garrison in the past and had no problems. But that day, June 1, a different security guard working the gate questioned his New York ID card, finding it insufficient.
“He called the NYPD, and the NYPD told him I didn’t have any record, that I was clean,” Villavicencio told the New York Post. “But the man said, ‘I don’t care.’ He said I need to keep waiting, and he called ICE.”
Since then, Villavicencio has missed Father’s Day and his oldest daughter’s birthday, Chica said at a news conference Tuesday. Activists with the immigration rights group Make the Road New York galvanized the community to his defense, attracting the support of city council members and New York Gov. Andrew M. Cuomo (D), who called Villavicencio’s 53-day detention “unconscionable” and a “disgraceful affront to our New York values.” A judge had previously halted his immediate deportation June 10 in a last-minute reprieve as Villavicencio mounted his legal case.
On Tuesday, Chica and Villavicencio’s immigration lawyers, from the Legal Aid Society and the law firm Debevoise & Plimpton, held a news conference pleading a last time for Villavicencio’s release ahead of the hearing. Chica and Villavicencio’s younger daughter had a birthday coming up, Chica said. She and the girls couldn’t bear his absence at another one.
“Pablo’s absence has brought us significant hardship,” Chica said. “It’s not easy to become a single mom in one day. It’s hard, being with two little girls, to be by myself with all the responsibilities I have now. We hope this nightmare is finished tomorrow, and my daughters can be again with their father. We hope the right thing is done tomorrow. Is it really too much for me to ask to keep my family together?”
Crotty said in his order that because USCIS was in the middle of processing Villavicencio’s “petition for alien relative,” deporting him would violate his rights under the Fifth Amendment and the Administrative Procedure Act. USCIS had in fact already scheduled an interview with Villavicencio, according to Crotty’s order. His continued detention served no purpose because “removal is no longer reasonably foreseeable,” Crotty wrote.
Should Villavicencio’s petition be approved, his next step would be to obtain “permission to reapply for admission” into the United States because he entered illegally. Then he would need to obtain a “provisional unlawful presence waiver,” which allows undocumented people to apply for the waiver within the United States before departing for their home countries for an interview at the consulate, shortening the amount of time they are separated from their families while seeking their immigrant visas. Crotty’s order allows Villavicencio to at least try to complete these initial steps, until any of those applications are denied.
Crotty noted that he intends to publish a formal opinion beyond the four-page writ of habeas corpus order granting Villavicencio’s release Tuesday.
Surrounded by supporters, Villavicencio walked out of the Hudson County Correctional Facility in New Jersey about 9 p.m. He embraced his wife, and then he knelt down as his two daughters ran toward him. In Spanish and in a cracking voice, he yelled, “I love you,” and hugged them both.