A federal judge has ordered Immigration and Customs Enforcement (ICE) to immediately release a gay asylum seeker who worried that he’d be killed if ICE deported him to his home country of Jamaica.
The judge said ICE violated 40-year-old Rickardo Anthony Kelly’s due process rights by detaining him on August while he awaited a routine immigration appointment for asylum in New York City. Kelly’s asylum attorney Peter Schuur then filed a habeas corpus petition challenging the legality of his client’s detention.
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In her ruling issued last Friday, U.S. District Judge Analisa Torres wrote, “In light of the undisputed facts, there is no doubt that [ICE’s] ongoing detention of [Kelly] with no process at all, much less prior notice, no showing of changed circumstances, or an opportunity to respond, violates his due process rights,” Advocate reported.
Kelly said the ICE facility detained him in a room with nearly 100 other people and only three toilets and no toiletries, showers, or ways to maintain basic hygiene. He also said that the detainees only received cold “freeze-dried rice and beans” twice a day and that he was given a substitute medication for his diabetes that caused harmful side effects.
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“The suggestion that government agents may sweep up any person they wish and hold that person in the conditions in which Kelly was held without consideration of dangerousness or flight risk so long as the person will, at some unknown point in time, be allowed to ask some other official for his or her release offends the ordered system of liberty that is the pillar of the Fifth Amendment,” Torres wrote in her ruling.
Kelly was shot 10 times in his home country of Jamaica by attackers who targeted him for being gay. So, after the attack, he fled to the United States and began seeking asylum in May 2021.
But because Kelly has a pending misdemeanor third-degree assault charge from a prior domestic dispute — a charge which is set to expire in a month under its statute of limitations — he was apprehended under the Laken Riley Act, a recently passed bipartisan law allowing the deportation of noncitizens accused of crimes.
Kelly was apprehended in a growing ICE trend of apprehending immigrants when they appear for their legally scheduled immigration and court appointments. The detainments deny undocumented immigrants their legally protected right to due process and also discourage other immigrants from honoring their upcoming legal appointments.
“I told the ICE officers that Mr. Kelly does not pose any risk of danger or flight,” his attorney said. “I explained that he is a hard-working man whose consistent goal since I began representing him in 2021 has been to remain in New York and be a productive member of society…. I believe that, if Mr. Kelly returns to Jamaica, he faces a grave risk of being killed or severely injured because he is gay.”
When asked about Kelly’s case, Department of Homeland Security spokesperson Tricia McLaughlin claimed that Kelly entered the U.S. in 2016 (five years before his lawyer claims) and said, “All his claims will be heard by a judge. Why does the media continue to peddle sob stories of these criminal illegal aliens?”
Equaldex reports that in addition to same-sex marriage being illegal, homosexuality among men remains outlawed in Jamaica and can be punished with up to seven years in prison. Homosexuality among women is not explicitly illegal, but sodomy between any two humans is punishable with up to 10 years in prison. The country also does not legally recognize transgender identities.
A 2023 report found that LGBTQ+ Jamaicans face “horrific violence, discrimination, and persecution and lack the most basic protections under the law” and that the situation is getting worse. Activists have called on the country to repeal its antiquated sodomy laws, saying that even though they are rarely enforced, they contribute to the stigma surrounding LGBTQ+ people.
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