At just 9 years old, Fernando Ochoa is fighting to stop his father's deportation over fears that he may be separated from him a third time even though President Joe Biden has ordered a 100-day moratorium on deportations and created a family reunification task force.
On Wednesday morning, just outside an immigration court, Fernando gave his attorney a letter he wrote to Biden asking him in Spanish "from my heart that you let my dad go free."
Fernando and his father, Ubaldo Ochoa Lopez, fled Guatemala over two years ago to seek asylum in the U.S. Instead, Fernando, who was 6 years old at the time, was separated from his dad by immigration authorities. He was one of at least 2,800 migrant children who were separated from their parents in 2018 as part of President Donald Trump's "zero tolerance" policy, implemented to deter migrants from seeking asylum.
Two months later, Fernando and his father were reunited.
"During the first 35 days of those two months, Ubaldo couldn't even contact Fernando. So those 35 days of zero contact, not knowing what was going on, were very traumatic for both of them," Andani Alcantara, their attorney, said in a news conference Wednesday.
Once they were together, Ochoa Lopez and his son resumed their legal efforts to get asylum, but they were separated for a second time in October, when Immigration and Customs Enforcement, or ICE, detained Ochoa Lopez after he was convicted of driving while intoxicated, Alcantara said.
"It was only a Class B misdemeanor, but ICE has treated it as a huge crime, and it has decided that it is enough reason not to allow Ubaldo to be with his child, who doesn't have another parent in the U.S.," she said.
'Punished twice'
Ochoa Lopez has been in the South Texas Processing Center in Pearsall, Texas for four months.
The Texas immigrant rights advocacy group RAICES has been helping Fernando with his asylum case while urging ICE to reunite him with his father, Erika Andiola, the organization's chief of advocacy, said during the news conference.
Andiola said it's important to note that Ochoa Lopez "went through the criminal justice system" when he was charged and convicted last year.
"If it was someone else, someone who was born in this country, if he was another person, perhaps he would be back with his son, but he's not. He's being punished twice for something that already happened — even after what we, as a country, did to take away his child," Andiola said.
Fernando wrote in his letter to Biden: "I feel very sad for my dad who is not with me. During Christmas, I was sad for my dad who was not with me. It makes me very sad to see other parents playing with their children because I can't play with my dad nor receive a hug from my dad."
Alcantara said she has completed multiple requests to ICE calling for Ochoa Lopez's release, most recently on Monday after the Biden administration announced new guidelines about immigration enforcement priorities. The public safety guidelines say to prioritize those "who have been convicted of an 'aggravated felony.'"
"The reality is that ICE always has the discretion to let anybody out of detention, and they are choosing not to," she said. "That's harming his child, who's 9 years old and cries on the phone with Ubaldo because he hasn't seen his dad in so long.
"They're choosing to keep a parent and child separated that they had already separated before and traumatized," she added.
On Thursday night, an ICE spokesperson told NBC News in an email that Ochoa Lopez is currently "pending immigration proceedings." ICE did not respond to questions around the status of the requests calling for his release or whether the agency considers Ochoa-Lopez’s deportation a priority.
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Biden went into his presidency carrying the weight of Trump's hard-line immigration policies, as well as criticism for the record number of deportations under former President Barack Obama, when he was vice president.
There's been an urgent push by progressive supporters and immigration advocates to do things differently.
An early Biden executive order placing a 100-day moratorium on deportations pending an enforcement review was suspended by a federal judge in response to a Texas lawsuit. But the ruling did not require ICE to schedule the deportations, and the agency, which is part of the Department of Homeland Security, has deported at least 269 people to Guatemala and Honduras in recent days.
More deportation flights are scheduled this week to Jamaica, the Dominican Republic, Haiti, Cameroon and Honduras, in addition to last week's deportation to Mexico of a woman who witnessed the 2019 anti-Latino mass shooting at a Walmart store in El Paso, Texas.
'"If Ubaldo is sent back to Guatemala, Fernando is left here without any parent, which is harmful enough in itself, but given his history of prior forceful separations by the government, it would be really harmful for him," Alcantara said, adding that he would be left "to fight his asylum case on his own."
A group of 120 law professors and legal experts called on the Biden administration to hold ICE officers accountable to executive orders and other directives that reflect "the president's intention to rebuild the immigration system in a way that respects human rights and due process," the group said in a news release Tuesday.
They sent a letter to newly confirmed Homeland Security Secretary Alejandro Mayorkas urging the agency to "use all the tools of prosecutorial discretion at its disposal to comply with the Biden administration's interior enforcement immigration policies and stop ongoing deportations of asylum seekers and families."
They warned that continued practices "will inevitably result in the continuation of enforcement practices that send asylum seekers back to their persecutors and destabilize families and communities."
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