HOUSTON – The federal government is asking a judge to suspend an order that released a witness to the deadly ICE shooting in Houston earlier this month, a move that could open the door for immigration authorities to seek to take him back into custody.
José Trinidad Rojas Pliego was released from ICE custody on Wednesday after U.S. District Judge Keith Ellison ruled Monday that his continued detention without an individualized bond determination violated his constitutional right to due process.
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The July 27 order required immigration officials to release Rojas Pliego within 48 hours. It also prohibited the government from re-detaining him during his ongoing removal proceedings unless he first receives notice and a hearing before an immigration judge.
At that hearing, the order states, the government would have to prove by clear and convincing evidence that Rojas Pliego is a flight risk or danger to the community.
Rojas Pliego has since been released, according to his attorneys.
However, in a motion filed Wednesday, federal attorneys asked the judge to stay his entire order while the government appeals the ruling.
The filing does not explicitly state that ICE intends to take Rojas Pliego back into custody. But if the judge grants the request in full, it could suspend both the order requiring his release and the protections preventing ICE from re-detaining him without a prior hearing.
Until the judge rules on the government’s request, the July 27 order remains in effect.
Rojas Pliego was one of the passengers inside a vehicle stopped by ICE officers on July 7. During the encounter, officers opened fire, killing the driver, Lorenzo Salgado Araujo.
ICE officials previously said the driver attempted to evade officers and “weaponized” the vehicle. Voluntary statements submitted by Rojas Pliego and another passenger offer a conflicting account of what happened.
Rojas Pliego was taken into ICE custody after the shooting and placed in removal proceedings. According to the court order, he entered the United States without inspection in 1998 and has lived in the country continuously for nearly three decades.
The judge noted that Rojas Pliego has no criminal history, has a common-law marriage to a U.S. citizen and is the father and stepfather of multiple U.S. citizen children and stepchildren.
Rojas Pliego has also applied for a U visa, which is available to certain crime victims who assist law enforcement. His application was certified by the Harris County District Attorney’s Office.
In granting his habeas corpus petition, Judge Ellison acknowledged that federal law subjects Rojas Pliego to mandatory immigration detention. However, the judge ruled that applying the law to him without any individualized justification violated the Fifth Amendment’s Due Process Clause.
The government argues that Judge Ellison’s decision conflicts with a recent published stay issued by the full Fifth Circuit Court of Appeals in a group of similar immigration-detention cases known as Rodriguez v. Ortega.
In those cases, the Fifth Circuit agreed to reconsider the dispute as a full court and temporarily stayed orders granting habeas relief to three detained immigrants.
Federal attorneys contend that the Fifth Circuit’s action is binding on the Houston court because Rojas Pliego’s case also challenges detention under the same federal statute without a bond hearing.
Federal attorneys are asking the judge to suspend his July 27 order for the duration of the appeal. If the request is denied, the government could seek a stay directly from the Fifth Circuit.
Rojas Pliego’s removal case remains pending. His release from detention does not end those proceedings or grant him lawful immigration status.
A Department of Homeland Security spokesperson said:
“ICE complies with all lawful court orders.
“DHS-OIG is leading an investigation into the agent-involved shooting. FBI Houston is leading an investigation into the potential assault on a federal law enforcement officer. We refer you to them for additional questions.”