United Cockpit Suspect's Asylum: What DHS Can Do Next

A passenger accused of a bomb threat on a Newark-to-New Orleans flight now faces state charges, an ICE detainer and, if DHS follows through, a fight over an asylum grant.

United Airlines Flight 2174 from Newark to New Orleans landed safely at Louis Armstrong New Orleans International Airport late Monday, Nov. 9, after what the airline called a disruptive incident involving a passenger. The Jefferson Parish Sheriff’s Office said a man began acting irrationally and allegedly told the crew he had a bomb. Deputies arrested Rony Alexander Gomez-Alberto, 34, a Honduran national, and booked him on state charges that local reports list as terrorizing and communicating false information of a planned arson. He is being held without bond, according to NJ.com and The Epoch Times.

The Department of Homeland Security says he tried to get into the cockpit, has been removed from the United States twice, and lodged an immigration detainer with the jail on Nov. 10. On Nov. 11, DHS went further, telling Fox News that an immigration judge had granted him asylum after a third attempted entry in 2019. Those immigration claims come from DHS alone and have not been tested in court. The allegations about the flight are allegations; no plea or court record has been made public.

What is known about the flight

The flight: United 2174 carried 46 passengers and six crew, according to the Associated Press. The FAA said it landed at 11:10 p.m.
The arrest: made by the Jefferson Parish Sheriff’s Office, not by federal agents, according to the sheriff’s office as quoted by The Epoch Times. No FBI statement or federal charge had been reported as of Nov. 12.
The cockpit claim: DHS says he attempted to enter the cockpit. United has confirmed only a disruptive incident. Fox News reported radio audio in which an officer described a door being breached; what that door was has not been independently confirmed.
Charges: outlets list slightly different state charges, and Fox reported an additional fugitive-from-justice count. No court date or defense statement has been reported.

What DHS says about his immigration history

According to DHS and reporting by ABC and Fox News, Border Patrol apprehended him near El Indio, Texas, in 2011 and near Columbus, New Mexico, in 2014, and he was removed after each entry. DHS says he was apprehended again in 2019 near San Ysidro, California, and released by ICE in January 2020 after an immigration judge’s order, pending removal proceedings. DHS now says that a judge granted him asylum, based on a claimed fear of persecution in Honduras. It has not said when the grant was made.

Those two DHS accounts do not fully line up. A person released pending proceedings and a person already granted asylum are in very different legal positions. The immigration court file is not public, so it is not yet possible to confirm which description fits or how an asylum claim went forward after two prior removals. DHS Secretary Markwayne Mullin used the case to criticize the asylum system as easy to game, according to Fox News.

What an ICE detainer does here

ICE describes a detainer (Form I-247A) as a request asking a jail to notify ICE before releasing someone and to hold the person up to 48 hours past the time they would otherwise go free, so ICE can take custody. ICE’s own guidance calls it only a request. In practice, the state criminal case normally goes first, and the detainer matters at the point the jail would release him. As our earlier report on the Philadelphia ICE detainers ruling explains, how far a local jail must go to honor a detainer is a contested legal question in some jurisdictions.

Can asylum be taken away after a criminal arrest?

Yes, but an arrest alone does not do it. Asylum is not permanent status. Under INA section 208(c)(2), 8 U.S.C. 1158(c)(2), a grant may be terminated on specific grounds, including if the person falls within one of the asylum bars in section 208(b)(2). Two of those bars could come up in a case like this:

Particularly serious crime: the bar applies to someone convicted by final judgment of a particularly serious crime who is a danger to the community. An aggravated felony conviction is automatically treated as a particularly serious crime. This requires a conviction, not a charge.
Danger to security: the bar applies where there are reasonable grounds to regard the person as a danger to U.S. security. It does not require a conviction, but DHS would still have to prove it.
Fraud: under 8 C.F.R. 1208.24, a grant can also be terminated if the original application involved fraud that made the person ineligible.

For a grant made by an immigration judge, 8 C.F.R. 1208.24(f) lets an immigration judge or the Board of Immigration Appeals reopen the case to terminate it. DHS has to prove a termination ground by a preponderance of the evidence. Once asylum ends, section 208(c)(3) makes the person subject to the ordinary grounds of deportability and to removal proceedings. Protection from return to a specific country, such as withholding of removal or protection under the Convention Against Torture, is decided separately. DHS has not said publicly whether it will seek termination.

What it means for other asylees

Policy fallout is possible: DHS has tied this case to criticism of the asylum system, and any new vetting guidance would be worth watching. Earlier coverage of Secretary Mullin’s enforcement claims shows how DHS has used individual cases in its public messaging.

Quick answers

Who is Rony Alexander Gomez-Alberto?
A 34-year-old Honduran national arrested after United Flight 2174 landed in New Orleans on Nov. 9. DHS says he was removed twice before.

What is he charged with?
State charges reported as terrorizing and communicating false information of a planned arson. No federal charge had been reported as of Nov. 12.

Did he really have asylum?
DHS says an immigration judge granted it. The court record is not public and DHS’s earlier statement described a release pending proceedings, so this remains unconfirmed.

Will he be deported?
Not before the state case is resolved, in most cases. If asylum is terminated, DHS can pursue removal in immigration court.

Does an arrest end someone’s asylum?
No. Termination requires a legal ground, such as a qualifying conviction or a security finding, proven by DHS.

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 an LL.M. from California Western School of Law, San Diego 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/

Author's website Author's posts