How a Mother in Sanctuary Became the Center of ICE’s ‘Crackdown on U Visas’

“People need to be really concerned about this, about the lengths ICE is willing to go to silence a critic or someone fighting back."

[Photo: A migrant woman looks out longingly between gate bars.]
While in sanctuary, Carmela Apolonio Hernandez’s attorney, David Bennion, helped her petition for a U visa based on her experience in Vineland, New Jersey. Univision Noticias / YouTube

Carmela Apolonio Hernandez doesn’t like tension. Any altercation, disagreement, or confrontation makes her “blood run cold,” she said. It’s rooted in a violent past. The asylum seeker fled Mexico in August 2015 after her brother and nephew were murdered by narco-traffickers for refusing to pay “taxes” on their businesses to local gangs. The gang members eventually came for Apolonio Hernandez, prompting her to flee with her four children to the United States, where she would eventually settle in Vineland, New Jersey. But a terrifying interaction with a man less than two years after her migration dashed any hopes Apolonio Hernandez had for safety, and it placed her at the center of what attorneys close to the situation are calling an unprecedented investigation into the federal U visa program.

Apolonio Hernandez, 37, spoke to Rewire.News in May with the help of an interpreter in the Germantown Mennonite Church, the second Philadelphia church she has taken sanctuary in since December 2017. Like other immigrants with final orders of removal, Apolonio Hernandez and her children were forced to take sanctuary under the Trump administration after the Board of Immigration Appeals denied the appeal for her asylum case and Immigration and Customs Enforcement (ICE) gave her a deadline to leave the country.

While in sanctuary, Apolonio Hernandez’s attorney, David Bennion, helped her petition for a U visa based on her experience in Vineland. U visas are for undocumented migrants who assist law enforcement or government officials in the investigation or prosecution of criminal activity, and must be signed by an authorized official who can confirm their cooperation with the case. The law enforcement official who certified Apolonio Hernandez’s U visa was Edwin Alicea, Vineland’s public safety director and the top civilian administrative official for the local police department. This role allows Alicea to certify U visas along with Vineland Police Chief Rudolph Beu.

Everything with Apolonio Hernandez’s application seemed to be going as planned until news broke in February that federal agents with the Department of Homeland Security (DHS) had raided Alicea’s home office as part of a probe into fraudulent U visa certifications. What wasn’t reported at the time: It was Apolonio Hernandez’s certification that put Alicea in DHS’ crosshairs, according to local attorneys who have spoken multiple times to the public safety director about the investigation against him.

Apolonio Hernandez’s ongoing fight for a U visa and the investigation into Alicea have created a domino effect that could have widespread consequences for the federal U visa program, the only hope for many immigrant victims of violence. The U visa program is already facing severe backlogs and processing delays because of current restrictions on the number of applications approved per year: As of March, there are at least 239,933 pending cases.

Immigration attorney Kerry Hartington told Rewire.News she is “100 percent certain ICE is coming down on Alicea like a ton of bricks” because he certified Apolonio Hernandez’s U visa. ICE said it could not comment on an ongoing investigation. But the immigration agency has already targeted migrants in sanctuary through steep fines and collaboration with U.S. Citizenship and Immigration Services (USCIS), as Rewire.News has reported.

Hartington is one of a few immigration attorneys working in Vineland, and her work is directly affected by ICE’s investigation of Alicea. She said she has at least 13 U visa clients who were certified by the director of public safety, and she is concerned their applications may now be called into question.

ICE officials have long criticized the U visa program and warned they would restrict it in some way. Hartington said that in the fall of 2018, ICE authorities told her they were going to “crack down on U visas” at a liaison meeting between the federal agency and the New Jersey chapter of the American Immigration Lawyers Association.

“They expressed great skepticism about the U visa program very openly in front of a room full of lawyers,” Hartington said. “They said most claims were fraudulent. I’m not joking. They really said most claims were ‘a scam’ and they were going to begin looking into them.”

Hartington sees what has happened to Alicea as ICE’s “test case,” and warns of similar investigations occurring in other regions. “There is nothing sketchy or underhanded about him or the way he has handled cases,” she said. “Every one of these cases 100 percent meets the criteria for a U visa.”

What Happened in Vineland

Apolonio Hernandez’s ordeal with the U visa program began in the spring of 2017. She was home alone—a rarity in the house she shared with her children, husband, and another family—when there was a knock on the door. It was a man who couldn’t really speak Spanish, her only language, but managed to communicate that he had found a check and wanted money in exchange for returning it. The check apparently had “blown out of the mailbox” next to her door.

“He gave me [the mail], but I told him—I was very honest with him—I said, ‘Look, I don’t have any money. I can’t give you any money for this,’” Apolonio Hernandez told Rewire.News through an interpreter. “I closed the door and he became very angry, he started to pound on the door. It sounded like the door was going to break. He kept yelling at me to give him the check back because he said … it was his to keep unless I gave him money.”

The man remained outside the home “for a while,” Apolonio Hernandez said, yelling, cursing, and pounding on the door. She took a few pictures of him through a window, but other than that she didn’t know what to do. She was afraid to call the police due to being an enforcement priority as a newly arrived immigrant. She hid behind the couch in the living room and made a video call to her husband, who convinced her to call the police.

The police dispatcher “kept asking all of these questions as the man was banging on the door,” Apolonio Hernandez said. “I finally said, ‘Please just come right away. I’ll tell you everything you want to know when you get here.’”

Apolonio Hernandez told Rewire.News it took the police 20 minutes to get to her home. By the time they arrived, the man had left. Apolonio Hernandez showed the officers the pictures she took and the check addressed to someone at the house. The police wrote up a report and left. But the man returned later that afternoon. The house was full this time, but Apolonio Hernandez said she was still terrified. Her legs cramped up, she said, and she felt like she was going to throw up.

The man began banging on the door again. Apolonio Hernandez called the police, and again they showed up too late.

The man didn’t return, but Apolonio Hernandez lived in a perpetual state of fear. She lectured her young children about what to do if he returned when she wasn’t home, and she called them constantly when they were home while she was at work.

“I would tell my children to look around always, and not to open the door for anyone,” Apolonio Hernandez said. “I was afraid he would hurt my children when they were walking home from the bus stop because he knew where we lived; he knew our address.”

Apolonio Hernandez insisted on walking her son in special education up to his bus, which pulled up in front of the house, but he became annoyed with her. “He said he was too big for me to walk him to the bus. But I was so scared; I needed to make sure he got on the bus.”

Shortly after that experience, Apolonio Hernandez entered sanctuary in Philadelphia. She had outstayed a previous deportation order and was quickly targeted as a priority under the Trump administration.

While in sanctuary, her attorney prepared the lengthy paperwork for her U visa application, as extortion is one of the qualifying criminal activities for the program. Alicea certified Apolonio Hernandez’s U visa application in mid-February 2018, and Bennion sent it off for processing in March, along with a request for expedited processing and prima facie determination from USCIS. Prima facie determination, which Apolonio Hernandez received, essentially means that all of the elements required for the U visa petition are present and USCIS doesn’t need anything else to make its decision. This determination typically allows ICE to grant the U visa applicant a stay of removal.

ICE denied Bennion’s initial request for a stay for Apolonio Hernandez, filed in February. In August 2018, ICE instructed Bennion to file for a new stay of removal, which the attorney took as “a favorable sign,” especially since it would override the removal order against Apolonio Hernandez. He filed it on August 20, but seven days later the federal immigration agency denied the request.

In September, Bennion said he received a call from Apolonio Hernandez’s deportation officer, who asked about Alicea and requested a copy of Apolonio Hernandez’s U visa packet. Bennion did as he was instructed, hoping ICE was requesting additional information to reconsider Apolonio Hernandez’s stay of removal. But he was wrong.

“The Lady in the Church”

When Apolonio Hernandez’s deportation officer contacted Bennion in September 2018 for more information related to her U visa and potential stay, it seems the investigation into Alicea was already building. In October, Hartington said officials from three different agencies sat down for a meeting with Alicea prior to raiding his home in January⁠—and it wasn’t friendly.

Richard Tonetta, Vineland’s solicitor, told Rewire.News that Alicea would not comment on this story. But Hartington and another Vineland immigration attorney, Elizabeth Trinidad, who said they spoke to Alicea around the time of his meeting and after the raid on his home, confirmed that they believe the attacks on the safety director are directly related to Apolonio Hernandez, based on what Alicea told each of them about the details of the meeting.

“When federal officials met with Alicea, they said it was ‘about the lady in the church,’” Trinidad said, referring to Apolonio Hernandez and describing what Alicea told her after the meeting. “They called into question Alicea’s certification, and implied it was fraudulent. They said awful things to him; they asked him if immigration attorneys were paying him or bribing him to sign off on U visa certifications. That is so deeply offensive.”

This was echoed by Hartington, who told Rewire.News that she spoke on the phone with Alicea after federal officials requested the meeting and then after the meeting took place. Alicea told her that three people from different agencies met with him, including an anti-terorrism task force, ICE, and ICE’s Homeland Security Investigations (HSI) arm.

“They told him he should have representation because they were not his friends. They implied he was taking money, and they specifically asked about Carmela. Her name was referenced in the meeting. I know for sure she is what triggered this whole thing,” Hartington said.

“Total Overreach”

A local news outlet broke the story that DHS raided Alicea’s home office on January 31. Federal agents with HSI seized his personal computers and other equipment as part of its investigation into whether Alicea fraudulently certified U visa applications for immigrants. Tonetta told Rewire.News in a statement Wednesday that the Vineland Police Department has not been advised “on what, if anything, ICE HSI is doing or not doing regarding the ‘investigation.’” But Tonetta did report that federal authorities “have almost completed” their review of the content of the electronics removed from Alicea’s possession and have returned “most” to the public safety director.

“The unfortunate circumstance is that if ICE would have requested any item or document, the City would have gladly complied without the need for any ‘raid,’” Tonetta told Rewire.News. “The City’s Administration is transparent and has nothing to hide, especially in light of the fact that all U-Visa certifications are reviewed and approved by ICE HSI and those agencies have the right to reject any U-Visas they believe to be non-compliant. None have ever been rejected.”

The local legal community saw the raid as “a total overreach in authority,” Hartington said, “and it’s something none of us have seen before. Everyone I talk to⁠—advocates, attorneys, law enforcement⁠—is shocked.”

Like Hartingon, Elizabeth Trinidad represents immigrants in Vineland. She too is familiar with Alicea because he certified her immigrant clients’ U visa petitions, some of which are still pending.

Trinidad told Rewire.News it’s important to remember that the U visa was “literally created” to benefit law enforcement and prosecutors. “This is not like DACA, fought for by a grassroots movement of people who came here as children and bleeding-heart liberals,” she said. “By stark contrast, the U visa came about out of the concerns of police chiefs and prosecutors across the country who invested precious time and resources building a case against a perpetrator, only to have it fall apart because the victim or witness was afraid of getting deported.”

This was echoed by Tonetta, who characterized U visas as a “valuable tool” in the investigation and apprehension of criminals who target undocumented immigrants with the assumption they are less likely to cooperate with law enforcement for fear of deportation.

“Assistance from victims is a necessary component in bringing perpetrators to justice, which is one of the primary duties of law enforcement,” Tonetta said. “The Vineland Police Department keeps all of the citizens safe by bringing criminals to justice by any legal means available to them.”

Trinidad said that in her experience, ICE views U visas with disdain and members of the agency routinely characterize U visas as a “loophole” that is being “exploited” in conversations with other agency officials, including ICE attorneys.

“Well before they went after Alicea, I can’t tell you how many conversations I’ve had with ICE officials where they make snarky, cynical comments about U visa clients and U visa laws and protections,” Trinidad said, noting that she began taking U visa cases in 2004, four years after the Victims of Trafficking and Violence Protection Act was signed into law. “There is a history of hostility.”

“All Hell Has Broken Loose”

Attorneys who spoke to Rewire.News worry the investigation into Alicea will have far-reaching implications for their clients, as they have witnessed with previous cases.

For example, a 2013 indictment involving fraudulent Violence Against Women Act (VAWA) cases affected some of Hartington’s clients. According to the complaint, paralegal Maria James began working with New Jersey attorney Jeffery Krain in 2004 to file the fraudulent cases. James found U.S. citizens to marry immigrants and helped concoct fake stories of abuse to get immigrant clients VAWA. It was “100 percent fraud,” Hartington said.

At an April 2011 meeting with HSI officials investigating James and Krain, Hartington was surprised to see HSI had pulled not just the cases of confirmed victims, but all of the VAWA cases filed by Krain over the last several years, including people who had already become U.S. citizens. This is why Hartington said she’s “almost certain” that HSI has reviewed all the files for her clients who have had certifications signed by Alicea. At a minimum, she said, this “sham investigation” into Alicea will delay her clients’ U visa processing times, some of which have already been pending since 2014. The worst-case scenario is that federal authorities will revoke certifications by Alicea that successfully led to clients obtaining U visas. Either way, the attorney believes it will be bad.

The repercussions could extend beyond applicants and affect the number of officers certifying visas. Trinidad, Hartington, and Bennion said this type of investigation will likely discourage law enforcement officers from certifying U visas—not just in New Jersey, but around the country. “This is law enforcement going after their own,” Bennion said.

The chilling effect may be the point. If the immigration attorneys are correct about the investigation into Alicea being an attack on Apolonio Hernandez and U visas more broadly, it’s a perversion of law enforcement for political purposes. It’s also an incredibly effective tactic for scaring small city and county agencies out of certifying U visas. Why would a small law enforcement agency continue certifying U visas if it meant potentially having the full force of the federal government on their backs?

The general consensus among the immigration attorneys is that if ICE could do this to Alicea, the agency could “do it to anyone.” Indeed, Alicea is an unlikely candidate for such an investigation. He has all of the characteristics of a “friend” of federal immigration agencies working under the Trump administration. The staunch Republican is a former Marine, a former police officer, and even now as Vineland’s director of public safety—a position he still holds, since he has not been prosecuted—he is an instructor at a police academy and an adjunct professor at two colleges where he teaches subjects directly related to DHS, including domestic and international terrorism.

Tonetta told Rewire.News that as a “retired Lieutenant from the Glassboro Police Department and United States Marines,” Alicea is “always ready, willing and able to cooperate and assist with any proper law enforcement activity.”

The fact that ICE succeeded at getting a judge or federal magistrate to approve a warrant in this matter is alarming, Trinidad said.

“It seems like a lot of people have come together … to make an example of Edwin Alicea,” Trinidad said. “People need to be really concerned about this, about the lengths ICE is willing to go to silence a critic or someone fighting back. Because let’s not forget, this isn’t really about Alicea. This is about Carmela. She has spoken out, she’s fought back, she’s entered sanctuary, and now all hell has broken loose.”

More of the Same Anti-Immigrant Agenda

Although this story may be about Apolonio Hernandez, it’s also about the deep suspicion with which the Trump administration treats any humanitarian remedy. Administrative officials have gone to great lengths to limit or eliminate humanitarian programs and immigration benefits, including Temporary Protected Status, Deferred Action for Childhood Arrivals, VAWA applications, asylum designations, refugee programs, and now U visas.

In short, Trump’s immigration officials have regularly positioned these benefits as “loopholes” immigrants take advantage of. Raiding churches and dragging immigrant families out of sanctuary would lead to a “public uproar,” Bennion said, so the agency has had to find other ways to target asylum seekers in sanctuary. For Apolonio Hernandez, this has involved ICE blocking her ability to obtain a U visa.

Apolonio Hernandez told Rewire.News she feels bad about what ICE is doing to Alicea, and the ways it may harm his job, his reputation, and his future. She said that if she could talk to Alicea, she would tell him that it’s not his fault he’s being attacked and that he did nothing wrong.

“I understand what he is going through,” she said. “I haven’t done anything wrong either. I have committed no crime. There is nothing to investigate, but that won’t stop them.”