Judge questions if Spanish-language journalist can stay in immigration detention without charges

BRUNSWICK, Ga. (AP) — A federal judge on Wednesday questioned whether a Spanish-language journalist who was arrested covering a June protest near Atlanta can remain in immigration detention after charges against him were dropped.

Attorneys for Mario Guevara asked the judge during a hearing to order his immediate release from an immigration detention center in southeast Georgia.

A petition they filed in court last week says the government is violating Guevara’s constitutional rights to free speech and due process. It argues that he is being punished for filming police, which is legal, and that he is being subjected to unlawful prior restraint because he’s unable to report while in custody.

“He is not a danger or a flight risk,” said Scarlet Kim, an American Civil Liberties Union attorney representing Guevara. “The real reason for detaining Mr. Guevara is to silence and punish his speech.”

An attorney for the federal government told U.S. Magistrate Judge Benjamin Cheesbro that U.S. Immigration and Customs Enforcement has broad discretion to detain Guevara, a native of El Salvador who does not have a U.S. visa.

“My question is whether there is still a statutory basis for detention,” Cheesbro told attorneys at the federal courthouse in Brunswick, about 50 miles (80 kilometers) from the detention center where Guevara is being held in Folkston.

Local police in DeKalb County arrested Guevara at a protest he was covering June 14. ICE took custody of him a few days later and has refused to release Guevara even after an immigration judge granted him bond.

DeKalb County prosecutors within days dismissed all charges Guevara faced related to the protest, which included unlawful assembly and obstruction of police. The sheriff’s office in neighboring Gwinnett County then took out warrants charging Guevara with reckless driving and other counts, but the county’s solicitor’s office declined to prosecute the case.

Woelke Leithart, an assistant U.S. attorney arguing for the government, acknowledged that any criminal charges Guevara faced “have fallen away at this point.” But he said ICE’s reasons for keeping Guevara in custody have nothing to do with his work as a journalist.

“Mr. Guevara is not detained for any reason other than his removability” from the U.S., Leithart said.

The judge also questioned whether he has authority to intervene while an immigration appeals board considers whether to uphold a bond granted last month by an immigration judge. Guevara’s lawyers say Cheesbro has jurisdiction because they allege violations of his constitutional rights.

Guevara has worked as a journalist in El Salvador and the U.S.

Guevara, 47, fled his native El Salvador two decades ago after suffering violence and harassment there while working as a journalist.

After arriving in the Atlanta area, Guevara built a large following working for the Spanish-language newspaper Mundo Hispanico. Then he started his own digital news outlet, MG News, about a year ago.

For his job, Guevara frequently goes to scenes where ICE or other law enforcement agencies are active, often acting on community tips. He regularly livestreams what he’s seeing on social media.

Homeland Security officials have said Guevara was placed in deportation proceedings because he is in the U.S. illegally.

His lawyers say Guevara is authorized to work and remain in the U.S. A previous immigration case against him was administratively closed more than a decade ago. He has a pending visa petition and is eligible for a green card, Guevara’s attorneys say.

Guevara was livestreaming video on social media from the June rally protesting President Donald Trump’s administration when local police arrested him. The video showed Guevara wearing a protective vest with “PRESS” printed on it. He told a police officer: “I’m a member of the media, officer.”

An immigration judge last month set a $7,500 bond for Guevara, but that order has been put on hold while the government appeals it.

‘I just want my dad out’

His arrest and continued detention have been decried by journalism and press freedom groups, as well as by some public officials in Georgia. His adult children have been vocal in calling for his release.

Guevara’s lawyers want the judge to order his immediate release pending a decision on their underlying petition alleging constitutional rights violations.

The judge didn’t rule in court Wednesday and gave attorneys on both sides a week to file additional legal briefs.

“That’s not good news or bad news. It’s just more waiting,” Oscar Guevara, the detained journalist’s son, told reporters outside the courthouse. He added: “I just want my dad out.”