Sitting within the confines of the First and Summerfield United Methodist Church in New Haven, Nelson Pinos could hear the chants getting louder.
“What do we want? Nelson’s freedom! When do we want it? Now!”
Pinos, 43, came to the United States as a teenager. But, now, 26 years later, he is seeking sanctuary from Immigration and Customs Enforcement. For 316 days, he has not left the First and Summerfield Church.
When Pinos was 18 years old, he walked toward downtown Minneapolis while on a monthlong visit with his brother-in-law in Minnesota in 1993.
“We saw something waiting on the streets. We didn’t know what it was,” said Pinos. “It was immigration.”
The immigration officers, working on behalf of former U.S. Immigration and Naturalization Service, took Pinos to their office to be processed. It took over eight hours, Pinos remembers, and they let him go back home in the evening. Pinos, who had immigrated to the United States from Ecuador in 1992, had been in Minnesota for about a month visiting his brother-in-law. Since arriving in the country, Pinos had been living in New York and working at an Italian restaurant.
The same day in 1993 that Pinos was detained in Minneapolis, immigration officials began processing his case.
Typically, when undocumented immigrants are put in removal proceedings, they receive a document that says that they must appear in court — but this first document does not detail the time or place of that appearance, according to one of Pinos’ current attorneys, Tina Colón Williams ’09.
Those details are typically related in a separate document. According to Williams, Pinos traveled back to New York before this document arrived. Pinos said that the documents were sent to an apartment building in Minnesota, and that someone else signed for the papers. Pinos said he does not know who that person was.
The immigration officials in Minnesota proceeded without Pinos. Pinos, having returned to the east coast, was unaware of the proceedings against him. In 1994, the immigration court in Bloomington, Minnesota, issued an order of removal in absentia against Pinos, meaning he was not present at the hearing.
But Pinos did not know that this order existed until years later, Williams said. In the two decades that followed, Pinos had three children who were all born in the Elm City.
In 2012, Pinos voluntarily turned himself into ICE in New York at the advice of a lawyer who was assisting him at the time. Since 2012, Pinos had been taking steps to citizenship. When Pinos first presented himself to ICE in 2012, he was not a “priority for removal,” said Williams. As a father of three U.S. citizens, “he was not the kind of person that they would target their resources to remove from the country. So, he went ahead and turned himself in.”
ICE officials have the power to exercise “prosecutorial discretion,” which means they can opt not to prosecute someone. Williams calls this the law of discretionary authority: “If ICE wants to pursue a case they can, and if they want to drop it, then they can.”
With this authority, ICE decided not to prioritize Pinos’ case of removal and instead kept him under monitoring. For years, they required him to come in for regular check-ins. Pinos’ previous attorney filed a motion to reopen his underlying immigration proceedings — the ones in Minnesota — based on lack of notice.
Over two decades later, Pinos and his legal team continue to fight the same order of removal that he received in Minnesota in 1994. That order is the “sticking point” for Pinos’ current legal case, Williams said. “That removal order is the reason he’s in sanctuary today.”
Pinos looks around at his children gathered around his bedroom in the First and Summerfield Church. Kelly, 16, lies on the checkered bed, while her younger sister Arlly, 13, sits at the bed’s foot. Brandon, who just turned 6, sits cross-legged on the floor eating a plastic cup of Goldfish crackers. He is watching the animated movie “Planes.” Every few minutes, when the screen goes dark, he goes up to his dad and looks away while Pinos re-types the iPad password, willing the screen back to life.
“Thank God I’m able to see them every day,” Pinos says, sighing. Typically, his wife and children come to the church once the kids finish school, eat dinner together and stay until about 8 p.m. before returning to their home only a few minutes’ drive away.
Sometimes when the kids are making noise, Pinos says, they don’t bother him. “Because pretty much during the day I am alone.”
Pinos spends most of his time in this maroon-carpeted room. Downstairs, in the basement of the church, is Trinity Hall, which converts once a week into a Sunday school. During the day he goes there, Pinos said, because there is more room and more air. In the basement, he often cooks and spends time in a small outside area within the church premises, where he planted some plants during the summer. On the other side of the garden is a gate that he chooses not to cross.
So long as the 1994 removal order hangs over Pinos’ head, as soon as he steps out of the church, “ICE is probably going to have to enforce that order,” said Williams. Doing so would mean Pinos would have to return to Ecuador, a country he left over 26 years ago. Hanging over his head, too, is the decision his family would be forced to make: Will he leave his wife and three children, or take them away from their home, the only country his children have ever known?
The reason the church gates protect Pinos comes down to an ICE policy which states that enforcement actions should not occur in “sensitive locations.” Such locations include schools and places of worship, according to the ICE website. There are exemptions to this rule: ICE can enter sensitive locations if “exigent circumstances exist,” if other law enforcement actions have led officers there or if prior approval is obtained from a designated supervisory official, according to the website.
“While there is some weight because it’s on a document, it’s not a law. It’s not clear how it should be enforced,” said Vanesa Suarez, an activist with Unidad Latina en Acción, an organization of immigrants defending human rights in New Haven. Suarez fronts ULA’s organizing action for Pinos which have included rallies and walkouts. ULA organized two major actions in September: the Rally for Nelson and Walk Out for Nelson’s Freedom, each drawing hundreds.
Suarez helps coordinate a rotation of overnight volunteers that sleep in the First and Summerfield Church. They recognize, Suarez says, that “ICE is not by any means a kind entity.” According to Suarez, while the sensitive locations memorandum provides some protection, ICE has violated their own policies in the past.
“Based on how much violence our community have experienced, it would be naive to think that it would not be necessary to have someone here to protect Nelson,” Suarez said.
To get from Ecuador to New York, the then-18-year-old Pinos took a plane from Ecuador to Panama, then traveled from Panama to Guatemala. Crossing the border by foot and by car, he arrived in San Diego, California.
“When you are a teenager, I don’t think you are scared of anything,” Pinos said, “I didn’t care how long it was going to take — I know people that talk about it, that it takes six months, depending on your luck, it takes three months.”
“It took me three weeks to get here,” he said.
Pinos left Ecuador “because of the same thing — like any other person from Latin America.” He said he came to this country looking for a better life, because he “had nothing out there.”
In 2014, Pinos’ attorney at the time challenged the existing two-decade-old order, the one Williams called the “sticking point” in Pinos’ case.
“The argument essentially is that he wasn’t fully notified of the proceedings, and because he didn’t know about them, he didn’t show up,” said Williams. “So he should be given another chance to show up, at least.”
This legal argument was not successful. That same attorney filed a motion to reconsider, which was also denied by the court. The attorney then appealed it to the Board of Immigration Appeals. That appeal was dismissed in April of 2015.
“And then we have a change of administration.” Williams paused. “And in Fall of 2017, ICE officially changes its approach.”
Up until that point, ICE did not have him as a priority for removal, so they would tell him he could stay, as long as they knew what he was up to. Now, Williams said, they would no longer exercise prosecutorial discretion in Pinos’ favor.
The only possible release from that removal order is if the courts grant a stay of removal or if the court vacates the removal order and reopens the case, Williams said.
In 2017, ICE told Pinos that he had to leave the country.
“They told me that I had to buy a one-way plane ticket; they put me on a GPS device. November the second,” Pinos said. He was given until Nov. 30, 2017 to leave the country.
“Deportations are classified as voluntary departures,” said Suarez. “There’s nothing voluntary about that.” She said she finds the term frustrating, noting that the individual with a removal order is under instruction the entire process.
“They make you buy a plane ticket and they make you pack your life in a small little suitcase, she said. “Whatever fits in there … Whatever doesn’t need to breathe — clearly they don’t care about family.”
“That’s still forcibly. Just because you don’t grab and snatch that person, you don’t consider it forcibly?”
Right before Pinos entered sanctuary, Williams and another attorney at the Esperanza Center for Law and Advocacy, Yazmin Rodriguez, immediately filed a request for a stay of removal with ICE in its Hartford office. In a formal legal argument, they explained the hardships that the family would suffer if he had to leave. They explained that Pinos had three U.S. citizen children, and that he participated in the community. ICE denied that request for a stay.
And so, the only way to keep that order from being carried out is to reopen the initial underlying immigration proceedings from decades ago. “It all stems back to the order of removal from 1994,” said Williams.
Pinos went into sanctuary at First and Summerfield United Methodist Church on Nov. 30, 2017, the day he was meant to leave the country.
“Nobody immediately opts for sanctuary, I’ll tell you that,” said Suarez. “It’s a very last-minute decision that is made the night before or the morning of.”
This was the case for Pinos. “At first, I had decided that I was going to leave my family here and go back to the country. But then, talking to the community and family members, even back home, they were like what are you going to do here? Your family is there,” said Pinos. And so, he made the decision to take sanctuary, not knowing how long he’d have to stay.
He remembers the day well. He arrived at 6 a.m.
On the day, it was very cold but not quite snowing, Pinos remembered. “The first few weeks were depressing — much more difficult than now. Now it’s been 10 months and I’ve pretty much gotten used to it.”
On his first day in sanctuary, Pinos and his son stayed at the church while his wife and two daughters went to the Hartford ICE office to seek a last-minute stay. There were a lot of people rallying in front of the ICE building, Pinos said. “They arrived back around 11 o’clock and nothing happened, so we held a press conference that I’d be taking sanctuary, and now I’m here.”
Once Pinos entered sanctuary at First and Summerfield, The Esperanza Center for Law and Advocacy filed a motion to appeal again to the Board of Immigration Appeals. Pinos’ attorneys, Williams and Rodriguez, appealed directly to ICE on their discretionary authority to stay the removal. ICE ultimately denied this appeal in April 2018.
Next, the attorneys filed another motion to reopen, together with a motion to stay, based on the original lack of notice from 1994.
Williams and Rodriguez tried to file the motion directly with the original immigration court in Minnesota, but the court’s administration wouldn’t let them put the case before a judge or even file it.
That left only one option: to file the appeal based on lack of notice with the Board of Immigration Appeals. This appeal was denied last month, in September 2018.
Williams and Rodriguez argued that Pinos’ case should be treated as an emergency stay — according to Williams, the board typically makes a decision within the same day if the person is detained or the removal is imminent. In Pinos’ case, the board did not rule a stay.
Williams said this was because the Board of Immigration Appeals interpreted Pinos’ removal as technically not imminent — “as his date [of deportation] was not in the future, but in the past, which is counterintuitive.”
The board also did not view Pinos as being detained because he is not in formal immigration detention. “Although practically, he is very much detained within the walls of the church,” said Williams.
With the recent denial from the Board of Immigration Appeals, Williams and Rodriguez are planning the next steps of Pinos’ case. Williams said that she is pursuing “whatever legal avenues are available.”
“As long as there’s a final order of removal hanging over his head, that’s going to force him to stay in the church, in order to avoid the alternative of leaving the church, getting detained and getting removed from the country — and then facing long, long bars of re-entering,” said Williams. “It’s a lot harder to fight that case when you’re out of the country,” she said.
“That’s been our task. It takes a lot of thinking and legal research and legal strategy. It’s a lot of figuring out what’s been done before and if it hasn’t been done before, can it be done now?”
Pinos’ room in the First and Summerfield Church used to be an old office of a pastor, but right before he took residence in the church, another undocumented immigrant, Marco Reyes Alvarez, lived there. Reyes, who was also seeking sanctuary at First and Summerfield Church, was not granted stay. However, he was allowed to “fight for his case from the outside,” according to Pinos.
Similar to Williams, Reyes’ attorney Erin O’Neil-Baker said she saw her practice dramatically change following President Donald Trump’s executive orders in February 2017. Following the orders, she said, her firm realized that the fear and threat of deportation would dramatically affect their clients.
Following this shift, individuals who met the previous criteria were no longer granting stays of removal, O’Neil-Baker said.
A stay of removal means that individuals with a removal order were allowed to stay in the country, but under some type of supervision — typically one a year the person would show up to ICE, present paperwork, go through a short procedure and the stay would be granted.
In 2017, another one of her clients’ stays was denied by ICE. ICE detained him, and within two weeks he was deported to Guatemala. After this, O’Neil Baker said, client after client would be denied. “The process became very routine,” she said.
ICE also began to supervise her clients with orders of removal with GPS tracking units. Check-ins became more frequent; sometimes biweekly, O’Neil-Baker said. “And these are the same people who had been granting stays years prior,” she added.
Kica Matos, Director of Immigrant Rights and Racial Justice at the Center for Community Change in New Haven, expressed frustration with the immigration law changes made under the Trump administration. “Under this administration, anyone at any point, no matter how many years they’ve lived here, no matter what their family ties are, no matter what their contributions to society — if you are nabbed by ICE and they find out you are undocumented, then they will move you towards deportation.”
ICE did not respond to request for comment for this story.
On Sept. 20, 2018, hundreds of New Haven high school and college students walked out of class in support of Pinos.
Waves and waves of students turned the corner of Elm St and Temple St, yelling and chanting; they held up multi colored posters reading “FAMILIES HAVE NO BORDERS” in red paint and “TODOS SOMOS HUMANOS” in blue. The crowd of students marched to Old Campus to take on Yale students and then did a round around the Green to City Hall. They all stood at the foot of First and Summerfield Church’s steps, joined by Pinos who stood in the church, overwhelmed.
Suarez, who organized the walkout with ULA, said that it a way to say this is an issue to affects all of us, all of the students in New Haven public schools.
She said that the community should recognize “yes, it’s Nelson, and yes, It’s his kids being affected right now, but throughout the community in New Haven there are so many families that are in the process of deportation, or waiting for a court date, something like that,” she said.
“It’s not just them. Today it’s Nelson, but tomorrow, it could be for anyone else in the community — that’s how bad the violence is.” We wanted to create that conversation for students.
Wilmarys Martinez, a senior from Common Ground High School who walked out for Pinos said she played one of those “what-if moments” in her head. “What if it was my family? What if it was my friends family?”
Kelly, Pinos’ oldest daughter, led the crowd of students in the walkout. “I felt big,” she said.
“I was at the front, I was smack in the middle. I was yelling, screaming, ‘Follow us’ and ‘Why are you going away? No! Come back over here.’”
There were times Pinos got tired, but she would still continue. “It was the best support I’ve ever gotten. I just feel like — we could do another one,” she said.
Pinos, back in his room at First and Summerfield Church, cannot be surrounded by his family all the time. Drawings and stickers cover his walls — a robot drawn in crayon, a sloth, a lion, a dinosaur figure.
He takes a long pause before saying, “I am doing this for them.”
Sammy Westfall | firstname.lastname@example.org