NEWARK, NJ - Daniel Castro put his head on the water bottle he clutched between his shackled hands as he sat on an airplane bound for detention centers, first in Nebraska then Louisiana. He resigned himself to the sobering fact he was being deported back to Nicaragua.

What worried him more than his return to the place he fled as a young teenager to escape poverty and political fighting, was the sobering reality he might never again see his 9-month-old son and fiancé back in Newark.

The 28 year-old construction worker, who never had an issue with the law in the 15 years he has been in the U.S., was scared. As he waited to start the last leg of his expulsion from the U.S., an officer came over to Castro and said, “Come with me, you're not on the list.” Castro received an eleventh-hour reprieve. His attorney filed a motion from an immigration judge to reopen his case.

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However, some city officials and immigration activists say Castro should never have been in this situation in the first place. He never should have been plucked off the streets of Newark, a self-designated Sanctuary City.

They said they believe the police might have overstepped their bounds when taking him into custody, violating Newark’s pledges to protect undocumented residents with no criminal history from being turned over to ICE.
 
What happened to Castro also raises questions by those city officials and immigration activists about whether city police have been properly trained in implementing the city’s sanctuary policy, created by a 10-page executive order signed by Mayor Ras J. Baraka in June 2017.

Castro was in a car, in which his soon to be father-in-law was driving, when police pulled the vehicle over for making an illegal U-turn. The two were returning to the house with bottled water for the family. Castro was the passenger and had no criminal record.

“The fact that Daniel was identified and flagged and then subsequently detained by Newark police for his immigration status issues and that he was turned over to ICE without actually being charged with any crimes is a very clear violation of the sanctuary policy as well as the Newark police directive,” said Chia-Chia Wang, the organizing and advocacy director of the American Friends Service Committee Immigrant Rights Program, which helped draft the policy for the mayor’s executive order as well as the New Jersey State Attorney General. 

The Newark Police Department is reviewing the incident.

Frank Baraff, a spokesman for the City of Newark, said the mayor’s office is waiting for the results of the investigation, but wants the city’s undocumented immigrants to know that  “the fact that this has happened does not represent any kind of a change” in the city’s policy.

“The immigrant community in Newark is an important part of the city,” said Baraff. “They are a part of the community, so to deport people is to rip our community apart.”

American dream interrupted

Castro’s story is not unlike thousands of other undocumented immigrants who now find themselves facing deportation after President Donald Trump’s executive order that expanded the definition of "criminal aliens” and increased its crackdown on those who may have entered this country illegally. 

He came to the United Sates though Mexico when he was 13. With nothing more than $20 in his pocket, Castro crossed the border somewhere in Texas, and walked through the desert for four days with no water, so desperate he was forced to drink his own urine. 

Castro said smugglers brought him first to Maryland, then to New Jersey, where his brother Lester lived. He went to work for Lester and his partner, learning construction. Castro said he also became skilled in laying ceramic tile, painting, and hanging drywall, and found steady work, especially in the busy warm weather months.

He said life in Nicaragua was rough, his family had little money and the country was in political turmoil. When he was in middle school there was pressure to join the Sandinistas, the left-wing Nicaraguan political organization that overthrew the government, but he said he didn't want to fight for a cause he didn't believe in. So he told his father he was leaving, hoping for a better life in the U.S.

Kasandra Serrano, 21, said she and Castro met through some friends in June 2015, and together, they have struggled through setbacks. In 2016, the young couple was planning to get married, but after a fire that started in the apartment above theirs destroyed all their belongings and documents, they put their plans on hold. 

Then Serrano got pregnant and gave birth to a baby boy, Carlos, who was born six-months premature. She said they were experiencing a tremendous amount of stress at the time, and the baby came early. “He only lived three weeks,” she said, wiping away tears. “He went into a coma and his heart stopped.”

She said they were devastated, and the tragedy tested them. “It was horrible, a numb situation,” she said. The couple vowed that every year they would go to Carlos’ gravesite together on his birthday. "This year we couldn't do it because he (Castro) was locked up,” Serrano said. 

Then in September 2017, Serrano was pregnant again, and again the baby was born premature, but Ismael pulled through and appears to be a healthy 9-month old. He looks just like his father, Serrano said.

“I miss my son a lot,” said Castro, who can receive visitors at the detention center in Elizabeth. “The last time I saw them I feel so happy, I see my life come to me. The hard part is when they leave.”

Without Castro’s support, Serrano said she is struggling to get by. Since’s Castro’s arrest, she lost the apartment and moved in with her mother and two sisters. She said she doesn't even have enough money for the 15-minute Uber ride to visit Castro in Elizabeth. Since he was arrested, she’s only seen him three times, instead letting friends and family bring Ismael to him.

“I really I don't know what I will do,” she said. “I don't care about me, just as long as my son has something to eat. I really need him not to get deported. His son and I need him.” 

Castro said he’s optimistic that he can still have a life in America. “I want to see my son grow up in a good way,” said Castro, who’s been in detention since early June.  “My dream is to stay in this country and stay with my family with Kasandra and Ismael, and every year and go visit my Carlos because I'm never going to forget my son.”

Castro said if he gets deported, he’ll return as quickly as he can. “If I get sent back to Nicaragua, the first thing I would do would come back here and ask for asylum, because my country is really bad. Nicaragua is scary, people are angry. I prefer to go to jail than return to my country.”

The incident

On the night of June 3, 2018, Castro’s fiancé Serrano asked him to pick up some bottled water. Ismael, their 9-month old baby needed formula. Castro went in the car with Serrano’s father, Melvin Serrano, 44, who allegedly made an illegal U-turn that caught the attention of a Newark Police officer, who then followed them to the couple’s apartment on N. 3rd Street in Newark. 

The officer turned to Castro, who was a passenger in the car, for identification. He gave them the name he often goes by, Enrique Castro, and explained that he lost his Nicaraguan ID and birth certificate in a recent house fire where he and Kasandra Serrano were living. The officer ran a database check that Castro and Serrano both say came back clean.

A second officer at the scene kept eye-balling the tattoos that cover much of Castro’s arms and neck. Castro said each of his tattoos is an autobiographical depiction of his life, not gang symbols.

Castro said the officer kept asking him if he had any aliases. “She started looking at my tattoos and I don't know what she is thinking,” Castro said. “She asked me so many times, and they see I don't have any (criminal) record.”

Unsure, he then gave them different variations of his name, which he said created confusion because his mother’s last name is the same as his father’s, and it is common practice in Latin countries to use the mother’s name after the father’s, thus his name is Daniel Enrique Castro Castro. 

Using that name, police discovered he had an ICE arrest warrant for deportation from 2011. Castro thought it was all a mistake, because he had no criminal history. Castro said he knew nothing about the warrant.

“One cop said ‘Let him go, he has no record'." said Castro. But the officers then cuffed him and held him for ICE agents. 

Kasandra Serrano came out of the house to see what was happening, she said the questioning went on for about an hour. She said they just told her to stay back. “They didn't even tell me where they were going to take him.”

In 2011, Castro was a passenger in a car driving through Ohio to New Jersey, when that vehicle was stopped by police. At that time, he didn't speak English well, so Customs and Border Patrol was called for translation assistance. He was then put in detention because he did not have immigration status. His employer in New Jersey provided an attorney for him, who then appeared by telephone in Ohio, and the employer allegedly paid his bond to get him out.

The problem for Castro was the employer was the only person who had communicated with his lawyer, so when the employer wanted him to work for little pay for a long time to repay his debt, things turned sour. Castro said he never received any communications from the lawyer, nor about his court date back in Ohio.  

“I never received one paper,” Castro said, “and the person who posted my bond never told me, I never heard a word from him.”

He missed that court date, says Castro’s lawyer Lauren Major, a detention attorney for the Newark chapter of the non-profit American Friends Service Committee, “And if someone doesn't go to immigration court one time, they are automatically given a deportation order.”

She plans to argue Castro is eligible for immigration status here in the United States on several different grounds. 

One is that he didn't get notice of the hearing and a claim on ineffective assistance of counsel.  

“We have the file from the attorney and there's nothing in there to indicate that there was any contact after he was released from detention," Major said.

There is also a recent Supreme Court decision that now makes him eligible for what’s called ‘cancellation of removal, which is an application for legal permanent residence based on being here for 10-years and having a U.S. citizen child who would suffer extreme hardship if he was deported, Major said.

Furthermore, Major said the recent surge of civil unrest and political violence in Nicaragua, “forms the basis of a new asylum claim, particularly since his family has political connections that would cause him and his family to be targeted.” She believes he has a good case.

If the motion is denied, “Then he'll be back to where he was before where he could be deported at any moment,” Major said.

Sanctuary City

Castro’s situation is unique for Newark. This appears to be the first incident where a person with no criminal record was handed over to ICE. “This is kind of an outlier that happened here,” says Baraff, the City of Newark spokesman.

In June 2017, Newark Mayor Ras Baraka signed a sweeping executive order that outlined Newark's Sanctuary City status in great detail. Baraka said the policy was designed to protect undocumented residents against President Trump's immigration policies. 

“The order pledges that the city will not spend local resources aiding federal immigration law unless required by a court order or directive,” Baraka said during the June 19, 2017 press conference.

The mayor’s executive order came with the risk of losing much needed federal grant money, after President Trump barred sanctuary locations from receiving federal grants. Just last month, Baraka and other elected officials demanded federal grant money for policing, calling the federal government's decision to withhold it “extortion.”

But why Castro was turned over to ICE in the first place is still unknown, since he had no criminal record. Captain John Zutic, Special Assistant to Newark’s Public Safety Director confirmed an internal investigation by Internal Affairs is ongoing in the Castro case, which is standard, and that NPD will not comment until the investigation is complete.

Newark Public Safety Director Anthony Ambrose did say, “it’s not the policy of the Newark Police Division to seek out illegals, but when it's brought to our attention, we are bound to take action.”

Why Castro was handed over to ICE might rest with the definition of "warrant." 

There are different types of immigration detainer requests, and an ICE warrant is an Administrative Warrant issued by ICE and not the same as a judiciary warrant, which is an arrest warrant issued by a judge.

Wang, who helped draft the city’s policy, says law enforcement should only honor judicial warrants because it's issued by a judge and has judicial oversight. 

“ICE warrants are not judicial warrants and do not go through the courts,” Wang said. “Basically it's a warrant they issue themselves. So how do we have any kind of oversight?  It has nothing to do with crimes.” 

John Tsoukaris, the Newark Field Office Director of ICE, disagrees. 

While he couldn’t comment specifically on Castro’s case, he said that if a person is in the U.S. illegally, they are subject to removal. 

“What is the difference between the warrants?” Tsoukaris asked rhetorically. “Because it's a warrant for your arrest, whether it's a criminal charge or immigration charge. I don't think it really matters, it's still a warrant for your arrest.”

And, since Castro missed his court appearance in Ohio, in the eyes of ICE, Castro lost his case, Tsoukaris said.

Wang says that when the AFSC met with Newark Police in July, they acknowledged the need to institute better training in order to enforce this policy, and that they are working together with the NPD to supply more training material. 

“If they really want this policy to work, and I think we're all learning from this, is to understand the difference between warrants,” Wang said.

If it's clear that Castro was handed over to ICE because of misunderstanding or lack of training, "then definitely the city's got to up its training a notch. Better training is critical on all police matters,” Baraff said. “That could very well be the outcome of the investigation.”

Thomas E. Franklin is a freelance multimedia journalist and a multiplatform journalism professor at Montclair State University with 30 years in the newspaper business. He’s perhaps best known for his iconic flag-raising photograph taken at Ground Zero. In 2002, he was a Pulitzer Prize finalist for his work on 9/11. He is currently working on series related to immigration. He can be reached at franklinth@montclair.edu or at @tomefran