ICE Releases SF Resident Fighting Deportation; Had Fled Homophobic Violence In Mexico

SAN FRANCISCO (CBS SF) -- A Bernal Heights resident fighting deportation on the grounds that he fled homophobic violence in Mexico was released from custody Wednesday following a rally outside Immigration and Customs Enforcement offices in San Francisco.

ICE agents removed Heriberto "Beto" Martinez Nolasco, 34, from the Bernal Heights home he shares with Eric Bernackie, his partner of 11 years, early on the morning of June 1.

Bernackie Wednesday described a frightening, tearful scene as Nolasco was taken away in his pajamas. He said that Nolasco had left his home in Mexico City in 2003 after experiencing homophobic violence and attacks there, and had established a stable life with many friends and connections here.

"He left Mexico because he wanted to start a new life," Bernackie said. "He wanted to live here where it was safe, live in freedom."

Nolasco is seeking relief from deportation on the grounds that he faced homophobic violence in Mexico and fears to return, and also because he is a violent crime victim.

Deputy Public Defender Francisco Ugarte, an immigration specialist who is representing Nolasco, says he has very strong claims for relief from deportation.

However, ICE officials had refused to release him while his case was being processed. This was due in part to a prior deportation in 2008, and in part because he has a prior DUI conviction stemming from a 2014 incident in which he was found sleeping in his car.

There is no legal avenue for appealing the decision, but advocates rallied outside the ICE offices Wednesday asking the agency to use its discretion to choose to release Nolasco, Ugarte said.

"You shouldn't lose your livelihood, lose your family and be sent back to a country where you face extreme danger because of a DUI," Ugarte said.

Ugarte said that many immigrants, even those with strong cases, choose to drop their fight against deportation because of the hardship of lengthy incarcerations. Many also lack access to attorneys, because there is no legal right to representation within the immigration court system.

In San Francisco, however, the public defenders office hired Ugarte as an immigration specialist two years ago and has authorized him to represent clients who face deportation as the result of a criminal charge.

ICE officials confirmed Nolasco had been arrested, but Wednesday afternoon said he had been released from custody pending a decision in his case. He is subject to a telephonic reporting requirement as a condition of that release and must appear for all scheduled proceedings.

"As a foreign national whose case history includes a prior removal and a recent conviction for driving under the influence, he falls under the agency's immigration enforcement priorities," the agency said in a statement.  "It will be up to an immigration judge with the Department of Justice's Executive Office for Immigration Review to determine whether he has a legal basis to remain in the U.S."