Before he was sent to an infamous supermax prison in El Salvador under the Alien Enemies Act, Andry Hernandez Romero was waiting for an immigration judge to decide whether he would be granted asylum in the United States.
And even after his deportation, Hernandez’s lawyers fought to keep his asylum claim open as a way of ensuring he didn’t disappear from the American legal system.
But an immigration judge in San Diego dismissed Hernandez’s asylum claim on Tuesday — one of at least 14 such dismissals in recent weeks. That has immigration attorneys concerned that the dismissals are the Trump administration’s latest tactic in evading due process to ensure those sent away have no means to return.
“It seems the government’s intention in dismissing these cases across the country is to complete the disappearance of people to El Salvador, to end their legal proceedings, and to act as though they weren’t here seeking asylum in the first place,” said Lindsay Toczylowski, executive director of Immigrant Defenders Law Center, a nonprofit representing Hernandez and seven other Venezuelans deported to El Salvador.
Hernandez, 32, is the lead plaintiff in a high-profile lawsuit brought by the American Civil Liberties Union against the Trump administration in Washington, D.C., on behalf of the hundreds of Venezuelans deported to a Salvadoran megaprison under the Alien Enemies Act. That case has been the centerpiece of a legal saga surrounding the deportations — one that some legal analysts say has brought the U.S. to the brink of a constitutional crisis.
Hernandez, a gay man who worked as a makeup artist for a state TV station in Venezuela, told his lawyers that he had suffered persecution for his sexual orientation and opposition to the government. That alleged persecution formed the basis of his asylum claim, which Hernandez pursued for months from inside the Otay Mesa Detention Center in San Diego.
But that process was abruptly cut short on March 15, when President Donald Trump invoked special wartime powers to deport 268 Venezuelan men to El Salvador without court hearings and without notifying their attorneys.
A majority of them, like Hernandez, had pending cases in immigration court. In the weeks after the sudden deportations, immigration lawyers around the country scrambled to attend hearings to make sure their cases weren’t thrown out.
“We don’t want these cases dismissed, because that pulls them out of the court process entirely,” said Michelle Brané, executive director of Together and Free, a nonprofit group coordinating the legal response to the deportations. “If they are returned to the U.S., this would be a shot at due process.”
At first, immigration judges were willing to extend the cases while more information emerged about the removals to El Salvador. But according to attorneys involved in the cases, more immigration judges, including in California and Texas, have been granting the government’s requests to dismiss the cases in the last two to three weeks. Together and Free has tracked at least 14 cases nationwide that have been dismissed since April, Brané said.
Although the Trump administration has not officially confirmed the identity or location of any of the deported Venezuelans, they are presumed to be held at the Terrorism Confinement Center, or CECOT, a supermax prison in El Salvador designed to hold gang members and terrorists. The prison is notorious for human rights abuses: As a matter of policy, inmates at CECOT are not allowed contact with the outside world, including lawyers and loved ones. None of the attorneys representing Venezuelan men held there have been able to establish contact with their clients — even in cases in which federal judges have explicitly ordered the Trump administration to facilitate such contact.
“They’re dismissing this proceeding that exists in the United States while providing absolutely no information on how we can communicate with our clients and under what legal authority they’re being held at U.S. government expense in El Salvador,” Toczylowski said.
Immigration and Customs Enforcement, which presents the government’s side in immigration court proceedings, did not respond to a request for comment.
The Executive Office for Immigration Review, a branch of the Justice Department that employs immigration judges and runs the immigration court system, also did not respond to a request for comment.
Attorneys in Hernandez’s case and others stress that the dismissals do not signify the end of the road for the Venezuelans deported to CECOT. Many plan to appeal them to the Board of Immigration Appeals. The immigration judge who dismissed Hernandez’s asylum claim allowed for the possibility that the case be reopened if Hernandez returns to the U.S., according to a copy of the dismissal order reviewed by NBC News.
Hernandez’s loved ones reacted with distress to the news that his asylum case had been dismissed.
“For us, keeping the case open was a beacon of hope that he could return to the U.S.,” Reina Cardenas, Hernandez’s childhood friend who has taken the lead in advocating for his release, said in Spanish. “He didn’t leave voluntarily — he was practically kidnapped. And he never got a chance to defend himself.”
