Editor's note: This story has been updated.
A Mexican reporter and his son who were on the verge of deportation earlier this month after being denied their request for asylum will be able to appeal the decision, their lawyer confirmed on Thursday.
Emilio Gutiérrez and his son Oscar were nearly sent back to Mexico from El Paso on December 7 after fighting to stay in the country since 2008. Their deportation was quickly halted that day after their attorney requested an emergency reprieve and asked the Board of Immigration Appeals to reconsider the case. The appeal was initially rejected after the government said their former attorney, Linda Rivas, didn’t file the request on time.
But in a letter dated December 22, 2017, the board said it would agree to honor the request for appeal after all.
“Upon consideration of the arguments and evidence presented with the motion, we agree that reinstatement of the respondents’ appeal is warranted in the interest of fairness,” the decision reads.
As of Thursday morning, it was unclear if Gutiérrez and his son will remain in detention as the latest round plays out.
Eduardo Beckett, the attorney for both Gutiérrez and his son, said the board now has three options: agree with the immigration judge and deny the asylum, send the case back to the judge to reconsider, or take it upon itself to disagree with the judge and grant the asylum.
“He’s back in the position as if he had appealed on time and the case is pending,” Beckett said. “We’re very happy we were able to reopen this.”
Gutiérrez and his son have been trying to convince U.S. officials that returning to Mexico will be certain death for the pair after the reporter received death threats for his reporting on corruption and violence in the northern state of Chihuahua.
In July, immigration Judge Robert Hough said in his denial that Gutiérrez didn’t prove his life was in danger. That came despite Mexico being considered one of the most violent places for journalists in the world.
“In sum, the respondent has not met his burden to establish that it is more likely than not that he will be tortured by the Mexican government, either by officials acting under the color of the law or through their willful blindness,” the judge wrote. “He has not presented evidence of past torture; the Court finds that relocation is possible for the respondent and his son, and in doing so they both can avoid the harms they fear.”
Since Gutiérrez and his son were detained earlier this month, several organizations and individuals, including the National Press Club and U.S. Rep. Beto O’Rourke, D-El Paso, have called for their release. In October, Gutiérrez accepted the National Press Club’s John Aubuchon Press Freedom Awards on behalf of his Mexican colleagues for their reporting in Mexico.
“We are delighted to hear that Emilio’s case will be reconsidered,” National Press Club President Jeff Ballou said in a statement. “But we must ask why one of our 2017 Press Freedom award winners remains behind bars when an arm of the Justice Department has determined that his case deserves to be adjudicated. Emilio and his son are guilty of no crime and it is costing U.S. taxpayers more than $250 a day to keep these two men confined.”
O'Rourke, who met with Emilio and Oscar last week, added: "We are encouraged to hear that Emilio and his son will have their case heard before a judge. As we continue to monitor their case, we remind ourselves of the commitment we made upon meeting Emilio, that we cannot send a journalist to a country that has not only threatened the man's life because of his work but is one of the most dangerous places for journalists in our hemisphere."
An online petition by Change.org has so far received more than 22,500 signatures from Americans calling for the release of Gutiérrez and his son.
Despite the welcome news on Thursday, Beckett knows the fight ahead will remain tough. Despite the ongoing violence in Mexico, U.S. immigration judges have continued to deny most asylum claims by Mexican nationals.
During the 2016 fiscal year, 12,831 asylum requests from Mexicans were filed. Only 464 – fewer than 4 percent - were granted that year and 2,624 others were denied. Thousands of others were either withdrawn, abandoned or may be pending, according to federal statistics.