4 years later, Abigail Hernandez is still in ICE custody but 230 miles away

ROCHESTER, N.Y. (WHEC) — Four years after she was arrested by immigration police, Abigail Hernandez is still in custody.

If that name sounds familiar it’s because she was the subject of a big news story here.

Hernandez was 20 years old in special education in the Rochester City School District when she was arrested for posting a threatening note to classmates on Facebook. She pleaded guilty to a misdemeanor and was immediately arrested by Immigration and Customs Enforcement (ICE).

First reported by The Progressive magazine Tuesday, News10NBC confirmed Hernandez is now sitting in a county jail 230 miles away.

She’s in the Rensselear County Jail, just east of Albany.

When immigration released 10 women from the federal jail in Batavia one year ago, Hernandez was kept in custody and moved to Rensselear.

The U.S. government still intends to deport her to Mexico where she hasn’t lived since she was three years old.

"So she’s been in immigrant detention for… actually it’s been so long I’m losing track," Jennifer Connor said.

Connor is the executive director of Justice for Migrant Families in Buffalo.

"Four years," I said.

"Yeah," Connor said. "I can’t believe it’s been that long."

Connor advocates for people like Abigail Hernandez who are locked up on an immigration charge.

"So ICE is looking to deport her to a country she basically does not know," she said.

A day after the mass murder at Stoneman Douglas high school in Florida, Hernandez was accused of sending a threatening post on Facebook.

She pled guilty to reporting a false incident and received a sentence of probation, but that misdemeanor canceled her "dreamer" status, a protection she had since she was brought to the country as a child by her family.

That’s why ICE arrested her. That was in 2018.

"I have to be honest," I said to Connor. "I was surprised when I learned she was still locked up and still in New York."

"Really there’s been so many opportunities for ICE to release her to the care of her family, her community," Connor said. "So this is an active choice. They [ICE] have chosen to continue detaining her."

Last June, the U.S. Court of Appeals for the Second Circuit, granted Hernandez another chance at asylum when it ruled an immigration judge in 2018 did not consider the fact that Hernandez has developmental disabilities and would not have adequate protection in Mexico and she could therefore be in a protected social group.

At 5:15 p.m., ICE spokesman Alvin Phillips emailed writing an immigration judge denied Hernandez’s second attempt for asylum in October 2021. The case is now in front of the Board of Immigration Appeals, which also denied Hernandez’s first attempt in 2019.

Phillips wrote Hernandez is "subject for removal" but there is no deportation date until a final order from an immigration court.

Hernandez is in Rensselear because that’s the only county jail in the state with a special agreement to house ICE immigration detainees. Connor says there are two bills in the state legislature that would cancel that agreement.

When the 10 women were released from the federal facility in Batavia one year ago, Connor says Hernandez was held because of her misdemeanor conviction.

Connor says she contacted Sen. Kirsten Gillibrand’s office last year to alert them to Hernandez’s case.

“Senator Gillibrand has forcefully pressed DHS about conditions at the Batavia facility and the status of ICE detainees. Senator Gillibrand is focused on passing legislation that would ensure access to counsel detainees, including those for people with disabilities.” Gillibrand Spokesman Evan Lukaske wrote in a statement.