Colombian man bought a ticket home, but immigration officials wouldn’t let him leave

A federal judge in New Jersey ordered the release of a Colombian man from U.S. Immigration and Customs Enforcement custody after finding that the agency violated his due process rights by preventing him from leaving under a voluntary departure order, then arguing that the missed deadline justified his continued detention.

Marlon Andres Torres Gomez had received permission from an immigration judge to leave the country by June 11. His attorneys repeatedly contacted immigration officials seeking to coordinate his departure, and Torres Gomez bought a one-way ticket from New York to Colombia for June 10.

But ICE did not permit him to leave. Instead, the agency kept him detained as the deadline passed, then argued that he was subject to mandatory detention because he had failed to depart on time.

Judge Michael Farbiarz of the U.S. District Court for the District of New Jersey ordered Torres Gomez promptly released from federal custody.

“The Petitioner had been ordered to leave and was ready to leave,” Farbiarz wrote. “But in the absence of a structured process, what happened here was not surprising—an ‘error’ was made and the Petitioner was kept in custody after June 11.”

“Due process requires more, and plainly so,” Farbiarz wrote.

Don’t miss the NJ stories that matter. Sign up for our free newsletter  →

The six-page decision was issued Tuesday and released Wednesday. Torres Gomez had filed a petition for a writ of habeas corpus, asking the court to order his release because his continued detention violated his constitutional right to due process.

The ruling comes as the Trump administration encourages immigrants in the country without legal status to leave voluntarily. The decision was a rebuke of the administration’s handling of Torres Gomez’s case. ICE could not prevent him from complying with a voluntary departure order and then use the missed deadline it caused to justify his continued detention.

Voluntary departure allows certain noncitizens to leave the United States on their own rather than being forcibly removed. Once the government grants that option, the U.S. Supreme Court has said, officials generally can detain and remove the person only if the person remains in the country after the voluntary departure period expires.

The government offered three explanations for keeping Torres Gomez in custody after the deadline. Farbiarz rejected all three as “after-the-fact and plainly non-persuasive justifications.”

Federal officials first pointed to previous court injunctions preventing them from deporting Torres Gomez. But those cases were closed before the June 11 deadline, Farbiarz wrote. The injunctions restricted the government from deporting him but did not prevent Torres Gomez from leaving voluntarily.

The government next argued that an immigration court had offered to extend the voluntary departure period. Farbiarz found that the proposed extension did not justify keeping Torres Gomez detained and was not offered until June 12, one day after the original deadline had passed.

Officials also contended that they kept Torres Gomez in custody to protect his right to appeal the immigration judge’s departure order.

“This is at odds with common sense,” Farbiarz wrote.

The government provided no documentation showing that Torres Gomez intended to pursue an appeal, the judge found. The claim also conflicted with emails showing that his attorneys were trying to arrange his departure and evidence that Torres Gomez told an ICE official on June 5 that he did not want to appeal.

After officials prevented Torres Gomez from leaving, they argued that his missed deadline activated a final removal order and authorized his mandatory detention.

Farbiarz rejected that argument as well. Overstaying a voluntary departure period is generally something an immigrant does, he wrote, not something the government causes by detaining the person and preventing him from leaving. Federal officials could not argue that Torres Gomez “remained” in the United States when they were responsible for keeping him there.

An immigration judge had previously found that Torres Gomez was not a danger to the community, according to a footnote in the ruling.

“The Court assumes that, upon release, the Petitioner will take prompt action to voluntarily remove himself from the United States,” the judge wrote.