Federal immigration judge released Oakland father on $5,000 bond after nine months in ICE custody

A federal immigration judge in San Francisco on Wednesday released an Oakland father of three out on $5,000 bond after he had been held in ICE custody for the last nine months.

Immigration Judge Alison E. Daw declared that Ricardo Mercado, 38 – held in the West County Detention Facility in Richmond since July 11, 2017 – was not a danger to society and not a flight risk with the amount of money his wife, Lilia Perez, posted immediately after the hearing. She ran to the bank to get a cashier's check. Eventually, the family will recoup the money.

The ruling means that Mercado can return home when the family pays bail. He'll then be united with his family, including his 1-year-old son and daughters, ages 11 and 9.

"I'm so happy," Perez said outside court. "I haven't even told the girls yet. I wanted to keep it a surprise."

Elias Shewl, who owns an Ethiopian restaurant where Perez cooks, came to support her. "God bless America," he said, tears streaming down his face. "She is like family to me."

Mercado also smiled via video-teleconference from jail. Through the video, he waved at his namesake, Ricky Jr., who shouted, "Hi Papi!" from the public section of the small courtroom. 

Mercado, who is undocumented and had one DUI on Christmas Eve in 2006 when he had three beers, was twice ordered previously to leave the country. But he and his attorney, Kevin Crabtree of Oakland, are seeking for him to stay here on the basis of “withholding of removal,” which is similar to seeking asylum. Crabtree is also seeking for Mercado to stay in the United States on a U-Visa, which is offered to immigrants who have helped law enforcement. Mercado once tipped off Oakland police to alleged child abuse at his daughter's daycare. While Mercado can go home and back to work at the warehouse of Royal Coffee, which has been his employer for 15 years, his permanent U.S. legal status is still in limbo.

Mercado might not have to go back to court again, at least for a while, Crabtree explained, as his fight to stay in the country can be done by filing legal paperwork with various courts.

Mercado is one of the estimated 40,000 undocumented immigrants held in the 112 ICE detention facilities across the country on any given day. He was also caught up in a Supreme Court ruling in February known as "Rodriguez vs. Jennings" where the justices declared that undocumented immigrants do not have the right to periodic bond hearings and can remain in custody indefinitely. 

Some legal experts, including Crabree, say they do not believe holding someone indefinitely will hold up legally upon further review. And they point to a little wiggle room in the ruling, which was sent back to the 9th Circuit Court of Appeals in San Francisco to answer two unresolved questions: First, whether indefinite detention without a chance for bail is constitutional. Second, whether the challenge to that no-bail provision can be brought as a class action, instead of as individual cases.

Since the Supreme Court ruling, however, some judges in the 9th Circuit have ruled that the decision does not have to be interpreted in the most harsh manner. 

The first example was on March 13, when a federal judge in San Francisco ruled that Floricel Liborio Ramos, who also filed a similar writ, should be released from detention under appropriate supervision conditions as she awaits her final deportation hearing. The judge in that case said that the Supreme Court did not rule that detainees must be held without the chance for a bond hearing, the justices ruled that they may be held. And so that judge ruled in a more progressive fashion. Then, on March 30, an immigration judge ruled that Fernando Carillo of San Jose can stay in the United States after he proved it wouldn’t be safe to return to his native Mexico. The Department of Justice, however, is appealing this decision.

San Francisco-based Pangea immigrant rights attorney Jehan Laner Romero explained that the district court judges within the 9th Circuit, are unique with their recent detainee rulings, as a legal precedent in this circuit allowed for more lenient interpretations. Lower court immigration judges across the country, she said, are mostly interpreting the case more conservatively, ruling that detainees in several categories should be denied these bond hearings.

On Wednesday after the hearing, Crabtree acknowledged that Mercado's release is "one of a very few."