Man was handed to ICE after traffic stop, advocates question if cops violated NJ policy

Melvin Herrera-Interiano was driving to work one morning in November when he was pulled over by police in Plainfield for making an illegal turn at a traffic light.

A few hours later, Herrera-Interiano, 50, of North Brunswick, was in the custody of federal immigration officials, and he now is at risk for deportation to his native Honduras.

Herrera-Interiano has no criminal history but was issued a final order of removal in 2005 after he failed to show up for an immigration court hearing, according to information provided by U.S. Immigration and Customs Enforcement.

His family and some immigration activists are questioning whether Plainfield police, when they turned Herrera-Interiano over to ICE, violated a directive by New Jersey's attorney general that limits the type of voluntary assistance local law enforcement officers can provide to federal immigration authorities.

“The intent was not for local police who just stopped someone for a driver’s incident to call ICE if they had heard of and not seen a final order of deportation,’’ said Ellen Whitt, a volunteer with DIRE, a community organization in Highland Park that helps immigrants. “They held him even though they had no basis to hold him,” said Whitt, who has visited Herrera-Interiano during his detention.

The directive issued by state Attorney General Gurbir Grewal, went into effect nearly a year ago and states that police cannot stop, question, arrest, search or detain someone based solely on actual or suspected immigration status or ask the immigration status of someone unless doing so is necessary to an ongoing investigation of a serious offense.

It also bars local, county and state police from participating in civil immigration enforcement operations.

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However, the directive does not prevent officers from enforcing valid court orders, including search or arrest warrants signed by state or federal judges. It also does not bar police from notifying ICE if someone has a final removal order.

Herrera-Interiano, a construction worker, is the father of three, including two children, ages 12 and 4, born in the United States and diagnosed with autism. He is the main provider for his household. The mother of his children, Geyde Zapata of Nor Brunswick, said she does not work outside the home because she needs to take care of the children and their special needs.

"I know this is not easy, this situation, but I want them to look at our side of this,'' Zapata said in a phone interview. "We pay taxes in this country."

More than three months after the traffic stop, Herrera-Interiano is still being held at the Elizabeth Contract Detention Facility in Elizabeth.

Hamdan Qudah, the immigration attorney representing Herrera-Interiano, said he filed a brief asking immigration officials to exercise discretion and to release Herrera-Interiano to his family.

“It’s within their power to consider the situation when there is a hardship on U.S. citizen family members,’’ Qudah said. “If he is deported, those two children, their lives will be damaged."

Plainfield police Capt. David Guarino said officers stopped Herrera-Interiano on Nov. 13 for an improper turn at a traffic signal. As in all routine police stops, officers collected Herrera-Interiano’s documents and ran his name in the National Crime Information Center database, Guarino said.

The search turned up an outstanding "warrant" from ICE, he said, which led police to handcuff Herrera-Interiano and later hand him over to federal immigration authorities.

“The warrant was confirmed by ICE, and he was arrested,’’ Guarino said.

Guarino said he didn’t have a copy of the warrant but insisted that it was signed by a judge.

Whitt and Herrera-Interiano’s lawyer said the warrant Guarino is referring to was likely a detainer, which is a written request from ICE to a local jail or other law enforcement agency to hold an individual for an additional 48 hours after his release so that ICE agents can take custody of him.

Under Grewal's Immigrant Trust Directive, police are required to notify individuals if an ICE immigration detainer request has been filed against them. Also, according to the edict, New Jersey jails cannot honor an ICE immigration detainer, unless the detainee has been charged with or convicted of a serious crime or has a pending deportation order from a judge, as Herrera-Interiano did.

Immigrant advocates argue that a paragraph in the Immigrant Trust Directive allows police to hold an individual with a final order of removal lodged with the county jail or state prison where the detainee is being held.

They say Herrera-Interiano was not taken to the county jail, and therefore the removal order was not lodged with the county jail.

“Melvin was never actually processed for an arrest and never went to the county jail,’’ Whitt said. “He was just going to get a ticket. He was never placed under arrest by local police, and he was not fingerprinted. I don’t think it meets the criteria for the directive."

Guarino said that once police handcuffed Herrera-Interiano, he was under arrest. Plainfield police did not charge Herrera-Interiano with a crime but did issue him two summonses. One was for improper turning at a traffic signal and a second was for failure to exhibit his insurance card, Guarino said.

He said Plainfield police followed the state directive appropriately.

Peter Aseltine, a spokesman for the state Attorney General’s Office, said he could not comment on the case because he did not have specifics. He added that anyone who believes an officer violated the directive should file a complaint with the Internal Affairs Unit of the department involved or with the county prosecutor's office.

Aseltine said the Attorney General’s Office is aware of a few alleged violations of the Immigrant Trust Directive by law enforcement.

“Internal Affairs complaints are investigated and, if sustained, may result in discipline, training or policy updates,'' he said.

Grewal's Immigrant Trust Directive faces several court challenges, including a lawsuit filed this month by the U.S. Department of Justice against Gov. Phil Murphy and Grewal asking a federal judge to deem parts of the directive unconstitutional.

The lawsuit challenges the barring of state officials from sharing information with ICE related to the immigration status and release dates of individuals in custody. It also challenges the requirement that state, county and local police officers "promptly notify a detained individual" in writing and in a language the person understands that ICE has filed an immigration detainer request for that person.

Request for prosecutorial discretion

Zapata said Herrera-Interiano has always provided for the family and they have never needed to apply for food assistance for their children. But if he is deported, she said, she may need that type of government assistance.

"The country doesn’t want us to be a public charge, but if they deport him then we may not have another option,'' she said. "I don’t want to do it, because we have been respectful; we have tried to be as least bothersome to the United States as we can."

She said that before Herrera-Interiano's detainment by ICE they had contacted an attorney to reopen his immigration case.

Qudah, the immigration attorney, said he visited Herrera-Interiano this week at the Elizabeth Contract Detention Facility and said he plans to file a second stay of removal in the coming days in a quest to halt Herrera-Interiano's deportation and reopen his immigration case.

Monsy Alvarado is the immigration reporter for NorthJersey.com. To get unlimited access to the latest news about one of the hottest issues in our state and country, please subscribe or activate your digital account today.

Email: alvarado@northjersey.com Twitter: @monsyalvarado