Fate of Peruvian woman in Hayward offers window into new Trump administration deportation tactics

HAYWARD, Calif. - The fate of a Peruvian woman seeking asylum offers a window into how the Trump administration is using new tactics to dismiss cases – and deport people -- essentially stripping immigrants of any previous protections traditionally afforded by court hearings. 

"This was a gross violation of her constitutional rights," Abby Sullivan Engen, an attorney at Centro Legal de la Raza in Oakland, told KTVU.

She represents 27-year-old Frescia Anthuane Garro Pinchi, who now lives in Hayward and whose legal status is in question, to be decided by a judge at the end of this month. 

"This is part of a new, nationwide DHS strategy of sweeping up people who attend their immigration hearings, detaining them, and unlawfully seeking to re-route them to fast-track deportations," Sullivan Engen argued in court papers. 

Since mid-May, the Department of Homeland Security has implemented a "coordinated practice" of leveraging immigration detention to strip people like Pinchi of their "substantive and procedural rights and pressure them into deportation," Sullivan Engen said. 

When immigrants are in the process of seeking legal status in the United States, they have the right to be represented by lawyers, present evidence and pursue appeals.

When the DHS dismisses cases, Sullivan Engen argued, the government believes that it can put these immigrants into "expedited removal," where the regular immigration court proceedings do not apply. 

Fleeing Peru 

Pinchi fled Peru and arrived in the United States in April 2023, and was told by federal agents at the time to appear for removal proceedings in immigration court, according to a 23-page court filing that Sullivan Engen filed on her behalf.  

In the last two years, Pinchi has attended two immigration court hearings and filed for asylum, saying she fears persecution in Peru, and has medical issues that required recent surgery. 

Pinchi has no criminal history either in the United States or Peru, Sullivan Engen said. 

New strategy: dismissing the case

On July 3, Pinchi went to the San Francisco immigration court for a routine hearing before Immigration Judge Patrick O'Brien.

The government attorneys orally moved to dismiss her case.

Sullivan Engen alleged they did so because that puts immigrants into "expedited removal" proceedings, which means they are no longer afforded the protections of being a formal asylum seeker.

In this case, O'Brien did not grant that motion to dismiss, and he gave Pinchi until July 31 to respond at a further hearing.

However, O'Brien said ominously: "But I probably won't see you that day." 

Pinchi's arrest

Just minutes after Pinchi left his courtroom, roughly four Department of Homeland Security agents, some of whom were wearing masks, arrested her before she left the courthouse, Sullivan Engen wrote in court papers.

Sullivan Engen said the officers did not present her a warrant or tell her why they were arresting her. 

Government says arrest was legal

The government sees Pinchi's detention and right to deportation in an entirely different way. 

In opposing court documents, U.S. Attorney for the Northern District of California Craig Missakian and Asst. U.S. Attorney Elizabeth Kurlan wrote to U.S. District Court Judge Casey Pitts in San Jose that Pinchi was "lawfully detained."

They cited Ninth Circuit and Supreme Court rulings that have "repeatedly upheld the constitutionality of immigration detention for noncitizens during removal proceedings."

In Pinchi's case, the government attorneys said that she was served with a warrant notifying her of her detention, "which is all that due process requires."

Specifically, the government attorney said that DHS officers served Pinchi a form I-200 warrant for her arrest and they filed a form I-830, notifying the immigration court of her detention. The government attorneys said that a warrant was issued before her arrest and "served on her promptly" after she was moved to a holding room.

Pinchi has also failed to show that "it is in the public interested to prevent the executive from exercising its enforcement authority" under the Immigration and Nationality Act," Missakian and Kurlan wrote.

"For nearly a century," Missakian and Kurlan wrote, "immigration laws have authorized immigration officers to remove immigrants without legal status from the United States, and put them in detention, if warranted… Indeed, removal proceedings would be in vain if those accused could not be held in custody pending the inquiry into their true character."

Also, the government attorneys explained: Congress has authorized ICE to arrest and detain these immigrants without a pre-detention process other than an arrest warrant.

The government did not, however, address the specific "dismissal" strategy, alleged by Sullivan Engen and other immigration attorneys, as a way to circumvent historical immigration proceeding procedures. 

Writs of habeas corpus

To counter these new government tactics, immigration attorneys like Sullivan Engen have been filing writs of habeas corpus – a legal challenge to being imprisoned or detained – which she did for Pinchi, who was first taken to an ICE detention center in Bakersfield.

And on July 4, U.S. District Court Judge Rita Lin in Oakland ordered Pinchi to be released until her next court hearing on Monday in San Jose. 

Pinchi had been taken in handcuffs to the Mesa Detention Center in Bakersfield, but was later let go. 

History of expedited removals

For decades, DHS applied expedited removal exclusively in the border enforcement context, with only narrow exceptions to that general rule. From 1997 until 2002, expedited removal applied only to inadmissible noncitizens arriving at ports of entry, according to a chronology of events provided by Sullivan Engen in her court arguments. 

In 2002, under Republican President George W. Bush, the government, for the first time, invoked its authority to apply expedited removal to people already inside the country, but only for a narrow group of people who arrived by sea, were not admitted or paroled, and were apprehended within two years of entry.

In 2004, still under Bush, the government authorized the application of expedited removal to those who entered by means other than sea, but only if they were apprehended within 100 miles of a land border and were unable to demonstrate that they had been continuously physically present in the United States for 14 days. 

In 2019, at the direction of President Trump, during his first administration, DHS published a "federal register notice' authorizing the application of expedited removal to certain noncitizens arrested anywhere in the country who could not show that they had been continuously present for two years.

 In practice, however, Sullivan Engen noted this expedited removal process was not used very often, and was practically only used when undocumented immigrants were near the border. 

In 2021, Democratic President Joe Biden directed the DHS Secretary to review the rule expanding expedited removal and consider whether it aligned with legal and constitutional requirements, including due process. And in 2022, DHS rescinded the rule. 

On Jan. 20, Trump, on his first day of office in his second term, signed executive order 14159, "Protecting the American People Against Invasion," which ordered the Homeland Security secretary to "ensure the efficient and expedited removal of aliens from the United States." 

And starting in May, DHS has been "targeting" people in routine removal proceedings in immigration court, aimed at accelerating deportations by arresting people at courthouses and placing them in expedited removals, Sullivan Engen wrote. 

These courthouse arrests are a departure from previous practices, Sullivan Engen argued, where these arrests only used to take place in "highly limited circumstances" or if it involved a "national security threat." 

ICE officers are executing these arrests, Sullivan Engen argued, regardless of how immigration judges rule on the government's motion to dismiss.