Euphoria Then Despair as ICE Nixes Bond, and Freedom, for Tribeca Waiter
Luis Fernandez, now held in a Texas immigration detention center, and the Square Diner where he has worked for seven years. Photos: Carl Glassman/Tribeca Trib (diner); Donna Ferrato (Fernandez)
Luis Fernandez was supposed to be home by now.
An immigration court judge on Monday set a $5,000 bond for the release of the popular Tribeca waiter from a Texas ICE lockup, where he has been held for close to two months. Thrilled and relieved by the decision, family and co-workers had expected him to be on a bus the next day, bound for New York City.
Instead, they were stunned to learn Tuesday morning that, despite the judge’s orders, a bond could not be posted. ICE had blocked the decision by appealing it.
The Department of Homeland Security has 10 days to file its appeal with the Board of Immigration Appeals. If the DHS prevails, Fernandez could remain in custody at least until his amnesty hearing, which is set for Jan. 30 at 26 Federal Plaza.
A native of Ecuador, Fernandez has been in the U.S. for 31 years and worked at the Square Diner for seven.
“When they said he was going to get the bond he was excited. I mean we all were,” his daughter Liset, 17, said in a phone interview on Wednesday. “But then the next day when he called me back I had to tell him, like, oh, we can’t do it yet. And you could hear his disappointment.”
“He’s obviously frustrated and more importantly devastated by the fact that he was found not to be a danger, not a flight risk, and yet he can’t be released,” Fernandez’s Westchester-based lawyer Craig Relles said in a phone interview.
Relles said in his 15 years as an immigration lawyer, he has only seen such an appeal once, two months ago.
In arguing for the setting of bond, Relles said he cited Fernandez’s ties to work and his family, which includes Liset and a 10-year-old son, as well as his connection to the Tribeca community.
“He’s not the type of person who should be detained for months on end across the country,” Relles said. “He’s part of the fabric of Tribeca and of where he works, so that’s not somebody to be detained.”
Relles said he is considering filing a writ of habeas corpus, arguing that Fernandez is being held illegally. That case would be heard in a federal district court by an appointed judge, he said, rather than the Board of Immigration Appeals, which is part of the Trump Administration’s Justice Department.
A spokesman for ICE did not respond to a request for comment on the agency’s appeal.
Michael DiRaimondo, an immigration attorney who lives in Battery Park City, has been closely following the Fernandez case. He said in his 40 years of handling immigration cases, and seven years before that as a federal prosecutor, the many cases like Fernandez’s are “new.”
“It’s completely insane,” he said. “The courts are bogged down with three million cases, and they want to add a couple million more? I’m getting cases scheduled for 2029. So what are they going to do with the new ones? 2030? 2031? This administration has no idea what’s going on.”
Fernandez, 50, is being held at the IAH Secure Adult Detention Facility in Livingston, Texas, 75 miles north of Houston. He was arrested by ICE agents on June 24 at an immigration office on Long Island and sent to three different detention centers before, on June 29, ending up in the Texas facility. Immigration authorities say Fernandez entered the U.S. illegally and cited two convictions for driving while intoxicated, in 2003 and 2014, as reasons for his arrest.
Through the Square Diner, a GoFundMe campaign has raised over $21,000 for Fernandez and his family. “My father wants people to know that he has immense gratitude towards everybody who’s been donating or trying to help in any way,” said Liset, who gets a call daily from her dad. “Me and my family are very grateful for everything that everyone is doing.”
News on Tuesday that Fernandez would have to remain in custody followed a day of tension, then euphoria at Square Diner, when a judge granted bond for the waiter. The hearing began at 2 p.m. New York time. With the lunch rush over, manager Fernando Santos and waitress Irma (who asked that only her first name be used) waited and worried. The waitress, who was instrumental in launching the GoFundMe campaign, alternately crossed herself, and crossed her fingers. Santos whiled away part of the time slowly refilling a jar of Tootsie Roll Pops.
“I’m nervous, scared,” he said. “I wish I could do something but what can I do? I’m trying to be positive. I want to think he’s going to be here. He’s going to be back working.”
Soon, Irma got word on her phone.
“Oh, my God. That’s so good,” she said, cupping her hands over a broad smile.
“I’m shaking,” said Santos.
The gleeful mood would be short-lived.
Reached by phone on Wednesday, Santos said he was “very upset” by the reversal of Fernandez’s release.
“We were banking on the guy being back to work, back to his family, making money, paying his taxes like he’s always been doing,” Santos said. “It’s a huge setback.”