Houston Prosecutor Weighs Assault Charge Against ICE Officer, Says Crash Data Was Driven Away, and Offers U Visa Backing

Harris County District Attorney Sean Teare said Oct. 13 that his office is weighing an aggravated assault charge against the ICE officer whose vehicle struck Miguel Parra-Hernandez outside Houston on Oct. 10, and that an ICE agent drove that vehicle away before investigators could download its crash data. Teare also said his office will back U visa petitions for Parra-Hernandez and two other people in ICE custody who were inside the vehicle, a step that may shape their immigration futures more than any prosecution. ICE has called the allegation that its officer hit Parra-Hernandez on purpose “reckless and false.”

Three days after the crash, the case has moved from a sheriff’s pedestrian-incident report to an independent criminal investigation by the county’s top prosecutor. Teare said Tuesday, according to KPRC 2, that surveillance video appears to show Parra-Hernandez “running in a straight line” while the ICE vehicle swerved into his path, and the Houston Press reported that experienced investigators who reviewed the footage concluded “it is not an accidental strike.” He told KTRK-TV that a charging decision would come “in a relatively short order,” according to the Texas Tribune. No charge had been filed as of Oct. 14.

ICE’s account is unchanged: officers were trying to arrest Jose Mendoza-Cervantes, whom the agency describes as a previously deported felon, when Parra-Hernandez “ran in front of an ICE vehicle and was struck.” Mendoza-Cervantes remains at large. Parra-Hernandez’s lawyer says her client does not know him. A DHS official told NBC News that several officers had body cameras switched on and that the video is part of an internal review, KPRC reported. This site’s first report on the crash explained how it tests ICE’s Sept. 30 ban on vehicle chases.

The missing crash data

Teare’s most pointed claim concerns the vehicle itself. He said investigators tried to tow it, the officers would not consent to a data download, and while his office drafted a search warrant an ICE agent drove the vehicle from the scene. The data, he said, is “in all likelihood” gone even if a warrant is obtained. ICE did not answer KPRC’s questions about that account.

Event data recorders capture speed, braking and steering in the seconds before an impact, which is exactly the question in dispute: whether the driver was trying to cut off a man on foot or could not avoid him. Without that record, any case leans on surveillance video and on body-camera footage that DHS controls. The practical effect is that the dispute over evidence may matter as much as the dispute over intent. A charge would also face a familiar obstacle: a federal officer prosecuted in state court can move the case to federal court under 28 U.S.C. 1442 and claim Supremacy Clause immunity for conduct necessary and proper to federal duties. Teare’s office already presented evidence to a grand jury last month in the July 7 fatal shooting of Lorenzo Salgado Araujo by an ICE officer, the Houston Press reported, and no outcome has been made public.

Why the U visa offer may matter more

The U visa protects victims of listed crimes, including felonious assault, who suffered substantial physical or mental abuse and help law enforcement. A petition on Form I-918 needs a signed certification, Supplement B, from a certifying agency, and federal regulations at 8 CFR 214.14 expressly include prosecutors. No conviction is required. Parra-Hernandez’s family and advocates say he has had surgery for a leg broken in several places, a fractured ankle and a hip injury.

Congress capped U visas for principal petitioners at 10,000 a year. Petitions beyond the cap go on a waiting list, and those USCIS finds bona fide can receive work permits and deferred action while they wait, under the USCIS Policy Manual. A certification does not by itself stop detention or removal; Parra-Hernandez’s lawyer is seeking his release from ICE custody, the Texas Tribune reported. The case also creates an unusual setup: USCIS, a DHS component, would decide whether an alleged crime by an officer of ICE, another DHS component, qualifies its victim for a visa. The certification is evidence, not a guarantee, and USCIS makes its own findings. The plan to certify the two other detainees, which KPRC reported, has not been detailed by any other outlet.This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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