A Wayne County farmworker must be brought back to Western New York from an ICE detention facility in Louisiana by May 12, a federal judge ordered Thursday.
But the government wants the go-ahead to deport her first.
Lawyers for 54-year-old Dolores Bustamante had tried to block her transfer out of state after she was detained last month at her scheduled check-in with Immigration and Customs Enforcement in Buffalo.
“She can't stay in the U.S.,” Assistant U.S. Attorney Adam Kahlil argued during a virtual status conference, noting that Bustamante had a removal order from 2018. “Her challenges are up. She has no avenue of relief.”
U.S. District Judge Meredith Vacca ordered Bustamante be returned, and set an evidentiary hearing for May 26 to review her case. Vacca did not immediately rule on the prosecutor’s request that she lift her order blocking Bustamante’s deportation back to Mexico.
Bustamante crossed the border in 2003 and later sought asylum, but lost her case and subsequent appeals. Her removal was not a priority under the Biden administration, and she instead was enrolled in an alternatives-to-detention program.
The farmworkers rights advocate has sought to spotlight the challenges faced by year-round immigrant farmworkers and long-time undocumented residents — drawing the attention of the area's state and federal lawmakers.
“She was taken into custody without any notice, without any prior warning, and despite the fact that she had been reporting to Immigration and Customs Enforcement without incident,” said her attorney Sarah Gillman with the Robert & Ethel Kennedy Human Rights Center. “They knew where she was, and ... I don't think there's any argument that she's a flight risk or a danger to the community.”
Kahlil had argued against her return, saying it was outside the court’s authority — as was blocking her deportation. But also that it would be “a financial and logistical burden on the government” to bring her back, he said.
Gillman said that “strains credulity,” given the government’s vast resources.
“We're not transporting detainees individually,” Kahlil said. “This is chartered flights. This is large amounts of people being moved.”
ICE also does not have a detention facility for women in Western New York, he said, so the agency would have to contract with a local jail or other holding facility. That is about to get more difficult, as the state looks to prohibit localities from renting jail space to ICE.
If Bustamante wants out of detention, Kahlil said, “ICE can grant release to Mexico, in line with the valid removal order that exists.”
“So, I understand about the hearing, about re-detention, and maybe, you know, it’s alleged her rights were violated,” he continued. “But essentially, all of her requests would be vindicated by lifting the stay of removal.”
Gillman noted Bustamante is seeking to reopen her case, as her daughter is soon eligible to apply for citizenship and could then secure her mother legal status. The government's request, if granted, Gillman said, “would result in an end run around her ability to present (her) claim to the court.”
“In the end,” Kahlil said, “she's going to have to be removed -- whether she has an evidentiary hearing and is released and re-detained, or whether she's just removed now. And I don't think anyone can argue with that.”
