A federal judge ordered the release of the father who, alongside his son, was detained by U.S. Immigration and Customs Enforcement (ICE) early last week in a case that rattled the Island.
During a hearing on Tuesday afternoon in the U.S. District Court of Massachusetts, Judge Indira Talwani ordered the release of Rogerio da Silva, citing that federal immigration officials had not followed the proper protocols after da Silva was initially detained.
“Today, Judge Talwani saw that it’s inappropriate and unconstitutional for ICE [Immigration and Customs Enforcement] to detain people without any constitutional protections any time they want,” Amelia Lynn Ritenour, the attorney from Haven Immigration Law representing da Silva, told The Times.
Da Silva is currently held at Plymouth County Correctional Facility, and Talwani’s order means he will be released by noon of Wednesday.
Last Monday, da Silva and his 15-year-old son, Nycolas de Al Varenga Lima, were taken to Woods Hole by the U.S. Coast Guard of Station Menemsha to be handed over to ICE. The Coast Guard had boarded the boat they were fishing from after noticing a lack of a vessel registration number on the side of the hull and suspicion of possible other violations. After checking the ID of the adults, the Coast Guard found an outstanding warrant on da Silva from a 2023 removal order, which led to his and his son’s transfer to ICE.
A flurry of activity followed, with Island immigration activists banding together to prevent the father and son’s being sent to Texas, which is where ICE has a facility for families. Demonstrations on-Island also followed in support of the detained pair, including a walk out by Martha’s Vineyard Regional High School students, where Nycolas is a student, and a rally in Menemsha, where it was revealed that the son had been released. Nycolas’ case is still ongoing in federal court.
According to the facts shared in the hearing, da Silva, originally from Brazil, had entered the U.S. illegally in 2021. While da Silva was initially detained that year, he was released under recognizance, which allows him to remain in the country as long as he attends his immigration hearings and doesn’t commit any crimes. In 2023, an immigration judge issued a removal order against da Silva, which he unsuccessfully appealed to the U.S. Board of Immigration Appeals under an asylum application.
Talwani said that da Silva was not detained by ICE for 90 days after the removal order was placed on him. The clock would’ve started in Jan. 2024 after his appeal was dismissed. This is a requirement for the process of deporting an individual. Additionally, an order of supervision was not placed on da Silva, which is like probation and places additional protections while a case progresses, like preventing indefinite detention.
Vincent Engingro III, the attorney from the Justice Department’s Defensive Litigation Unit representing ICE and the Department of Homeland Security, argued that the 90-day period begins when a detention occurs.
But Talwani disagreed, saying the proper protocols weren’t followed.
“Why do you get a new bite at the apple?” Talwani said.
Additionally, da Silva was not viewed as a flight risk.
Talwani said the order wasn’t an “open invitation for Mr. da Silva to stay here,” but it won’t be in detention. ICE can still file for an order of supervision on da Silva, which provides certain protections for him even if the agency pursues deportation, like preventing indefinite detention and allowing him to stay in his community.