What was on track to be a routine deportation hearing in a New York City immigration courtroom Thursday turned into an hours-long administrative battle and a detailed airing of a teenager’s reasons for informing on his gang, MS-13.
Amid a flood of attention brought to the case by a ProPublica and New York magazine report published Monday, Judge Thomas Mulligan declined to issue a ruling. Instead, he gave the teen’s lawyer a list of evidence and testimony he wants to see before deciding the case in May. The judge seemed to be sketching a path to a successful asylum claim, and mentioned an alternative defense if asylum cannot be supported.
Henry, who asked that his last name be withheld, helped police and the FBI arrest his fellow gang members on Long Island. He worked with law enforcement for about a year, until immigration authorities arrested him last August, using his own disclosures about gang membership to justify his deportation. As a known informant, deportation likely means death for Henry, whose cooperation with police is spelled out in an unsealed Immigration and Customs Enforcement memo. After eight months in detention with MS-13 members threatening his life, his case was looking so hopeless that he decided to go public ahead of his final hearing.
The reaction has been intense. On Thursday, Henry’s lawyer, Bryan Johnson, used a rare chance to sit him in front of a computer to show him the wave of help that has come in from readers over the past few days, including $8,000 in donations. Usually reticent to consider his future, Henry started talking about moving to Spain or Los Angeles.
As the hearing began, an issue of New York magazine lay on the table between the ICE attorney and Henry. Several people agreed to testify after the story ran, including a gang expert, Henry’s FBI Gang Task Force handler, and the superintendent of Henry’s high school district. The government opposed each one. ICE contended that the expert did not seem qualified. A Suffolk County lawyer argued that because the handler is an FBI employee, he has to be subpoenaed in a special way. And the ICE attorney said the superintendent’s testimony seemed irrelevant. But the judge wanted to hear from them all.
The ICE lawyer also argued that Henry’s lawyer should recuse himself, because he had become a witness by exchanging text messages with the FBI handler. In those messages, the handler confirmed that Henry helped get fellow MS-13 members arrested. ICE objections took up the first half of the four-hour afternoon hearing, and in the end, only Henry had time to testify.
Henry spoke softly and described under oath how a tattooed MS-13 leader named El Destroyer had recruited him when he was 10 in El Salvador. He told Mulligan about being taken to kill a rival as an initiation rite, and described how the man had screamed and bled out. He talked about leaving for Long Island at 15, trying to make a break from the gang, and being forced to rejoin an MS-13 clique after being recognized in school.
“Once you join the gang, you can’t leave. They watch you day and night,” he said.
Henry, who is now 19, explained how he felt when the gang began killing classmates. As he described the murders and his anguish about whether to go to police, workers in the courtroom stopped what they were doing to listen. An administrator turned away from her computer and rested her chin in her hands as Henry described how he had prevented the murder of a friend.
“They wanted me to lure him to the woods, and they were going to be there waiting,” Henry said. “But I told the boy that the cliques were going to ask him to come talk in the woods, and they didn’t just want to talk, they wanted to kill him.”
Mulligan interrupted Henry again and again with questions about his meetings with law enforcement. He was especially interested in any instance in which a written record might have been created. He stopped Henry short as the courthouse was about to close and made a list of people who he wanted to testify at the next hearing, including school administrators, police officers and Henry’s FBI handler.
“Common sense tells us there’s a lot of people out there with knowledge,” Mulligan said.
He said Henry could finish his testimony at the next hearing, which he scheduled for the morning of May 22.
In a filing this week, ICE indicated its case for deportation will hinge on Henry’s admissions to having joined the gang as a child (in ICE’s words, being a member “for nearly half of his lifetime”), and to having committed a murder. The ICE attorney twice raised objections to the presence of a ProPublica reporter in court, and to the reporter taking notes that might be published. Mulligan dismissed this objection, citing Henry’s right to waive his own privacy protections.
Johnson plans to argue that Henry committed murder under duress, because the gang leader threatened to kill Henry if he refused to wield the machete. Mulligan said there might be ways to overcome the murder admission, but Henry needed to meet a large burden of proof to justify having committed such a serious offense. He wanted to hear the full story of how and why Henry cooperated with law enforcement. If Henry loses his asylum case, his lawyer plans to argue that deporting the teen would violate a United Nations treaty that forbids the U.S. from returning immigrants to places where they will be killed. “Is duress enough to get him out? If not, there’s really only the Convention Against Torture. This is going to take a little more developing,” Mulligan said.
When Mulligan announced his decision to continue the hearing, Henry shook his head in disbelief and seemed to be fighting back tears; he had thought he would be given a deportation order that afternoon. Before he could speak to his lawyer or a reporter, guards hustled him out of the courtroom and back to the same New Jersey jail where he is receiving threats. ICE offered to move Henry to a part of the jail with no known gang members this week, but he declined, reasoning that temporary protection would make MS-13 members even more suspicious.
Johnson plans to petition in the coming days to have Henry released on bail. He could be temporarily relocated ahead of the May hearing using money readers have donated. Johnson has been working pro bono and is hoping some of the legal organizations that have issued statements supporting Henry will pitch in to help prepare the additional evidence the judge requested. He still sees a lot of work ahead but is amazed that a case that seemed unwinnable suddenly looks like it might have a chance.
