Gay makeup artist now plaintiff in federal case against Trump administration

A gay makeup artist who was extrajudicially removed from the U.S. has now joined a federal lawsuit seeking his return, his attorneys told the Bay Area Reporter May 9. A ruling is expected as early as next week for Andry Jose Hernández Romero, who was sent from a San Diego detention facility to a notorious Salvadoran prison by the Trump administration.

According to his attorneys, Hernández Romero is now one of the plaintiffs in J.G.G., et al. v. Trump, which is currently before the U.S. District Court for the District of Columbia. Hernández Romero is one of 12 plaintiffs who’ve filed a habeas corpus claim. 

His attorneys also acknowledged the support Hernández Romero has received from the LGBTQ community, stating they found solace in it.

As the B.A.R. has been reporting, Hernández Romero, 31, was featured on CBS News’ “60 Minutes” on April 6. He was one of 238 Venezuelan migrants flown to the Counter-Terrorism Confinement Center, or CECOT, in El Salvador several weeks ago after the White House made an agreement with Salvadorian President Nayib Bukele to house them there. 

Human Rights Watch reports that the prison is the site of human rights abuses. Hernández Romero had been detained in a San Diego immigration jail since last year, when he crossed the U.S.-Mexico border to attend a pre-arranged asylum hearing in the Southern California city, the Daily Mail reported.

Federal Judge James E. Boasberg is considering whether Hernández Romero and others are in the actual or constructive (that is, true in the eyes of the court) custody of the U.S., which would mean Article I’s right to habeas corpus – a long-standing legal principle to compel a court appearance and, thus, prevent unlawful detention – applies. He ruled that, “The court believes that some discovery could aid its analysis.”

“Given that habeas jurisdiction can lie when the detainees are in constructive U.S. custody, the question becomes whether such jurisdiction does lie here,” Boasberg stated in a court order allowing the petitioners to seek discovery. “As indicated, petitioners allege that ‘[i]ndividuals detained at CECOT are detained at the behest of the respondents, and respondents are paying El Salvador millions of dollars to detain them.’”

Boasberg ruled that news reports, and statements from El Salvador’s ministry of foreign affairs, Bukele, and U.S. Secretary of State Marco Rubio, are enough to lend credence to the allegation, but “some questions nevertheless remain about the precise nature of the confinement,” and the petitioners’ attorneys, therefore, should be able to seek discovery to determine whether their clients are “being detained in the foreign state to deny [them] an opportunity to assert their rights in a United States tribunal.”

Hernández Romero’s attorneys are hoping to have the court rule that he and the other plaintiffs be returned so they can exercise their constitutional rights to due process in U.S. courts. His attorneys, or anyone from the outside world, have not had contact with him since he got to CECOT.

Gay Congressmember Robert Garcia (D-Long Beach) had flown to El Salvador with other members and attempted to see another detained immigrant, but they were not allowed to. He was, however, able to get a commitment from William Duncan, the U.S. ambassador to El Salvador, that the embassy would look into Hernández Romero’s case. And they sent a letter to Rubio and Duncan demanding access to Hernández Romero.

Hernández Romero’s attorney stated that he should be released.

“When the government unlawfully denied Andry due process, we knew his story had to make its way out of immigration court. Andry recently became a named plaintiff in J.G.G. v Trump, a case led by the ACLU that aims to release him and hundreds of Venezuelan men from detention in El Salvador's notorious CECOT prison,” Lindsay Toczylowski, president and CEO of the Immigrant Defenders Law Center, which is representing Hernández Romero, stated to the B.A.R. “As we await news from the court on whether the 238 Venezuelan men must be returned to the United States, we have found solace in the community's support, both locally and internationally, especially the outpouring of support from the LGBTQ community.”

In the related case of Kilmar Abrego Garcia, who was also extrajudicially removed from the U.S. by the Trump administration, the U.S. Supreme Court ruled 9-0 that the government had to facilitate his return from El Salvador. It has not done so. 

In his last social media post on X before he became the first-ever American selected to lead the Roman Catholic Church Thursday, the former Cardinal Robert Francis Prevost, now Pope Leo XIV, condemned Bukele and Trump’s laughter about the case in the Oval Office.

The Trump administration alleged that the migrants sent to CECOT are members of the Tren de Aragua gang. (CBS News could not find U.S. criminal records in 75% of the cases, when it broadcast the “60 Minutes” story.)

In Hernández Romero’s case, the government argued in court that crown tattoos he had were evidence of gang affiliation. Hernández Romero has a crown tattoo on each wrist, with the words “Mom” and “Dad.” His hometown Capacho, Venezuela is known for its celebration of Epiphany, the Catholic holy day when three wise men visited Jesus Christ.

Time magazine photographer Philip Holsinger told CBS News that he was at the prison site when the migrants arrived, and that he heard a young man say, "I'm not a gang member. I'm gay. I'm a stylist." He was crying for his mother while he was slapped and had his head shaved, Holsinger said.

Hernández Romero left Venezuela in May 2024, citing his political views and homosexuality as reasons to seek asylum. Venezuela is run by a dictator, Nicolás Maduro, whom the U.S. contends illegally claimed the presidency of the country after losing an election.

Cleve Jones, a longtime gay activist who co-founded the National AIDS Memorial Quilt, and Nicole Murray Ramirez, a San Diego-based gay activist who, as the Queen Mother I of the Americas and Nicole the Great, is the titular head of the Imperial Court system, had suggested that U.S. Pride organizations make Hernández Romero an honorary grand marshal this year, to bring attention to his case. 

Pride by the Beach, which will be held June 7 in Oceanside (San Diego County), will be doing so, as the B.A.R. has reported. San Francisco Pride declined, though it will be discussing the matter at its annual human rights summit June 26.

Jones has also been in touch with Hernández Romero’s attorneys.

“To me, the important thing for people to understand is that the case of Andry Romero is right at the intersection of the struggle for immigrant rights, LGBTQ rights, and the effort to preserve due process under law,” he told the B.A.R. May 9. “That’s what this case is about, and we in the LGBTQ community have a special responsibility to step up and fight for his life.”

Toczylowski gave thanks for the Pride organizations that got involved.

“We are humbled by the Pride event organizers who are honoring him in their Pride celebrations,” Toczylowski stated. “We hope that someday soon, Andry will get to see how many people are demanding his immediate return."

Asked by NBC News earlier this week if everyone in the U.S. is entitled to due process, which is stated in the Fifth and 14th Amendments to the U.S. Constitution, Trump said, “I don't know. I'm not, I'm not a lawyer. I don't know.”

White House adviser Stephen Miller said May 9 the administration is looking at suspending habeas corpus. 

"A lot of it depends on whether the courts do the right thing or not," he said.

The legal right, established in English common law in the 12th century, can only be lawfully suspended in times of invasion or rebellion. It was suspended only four times in U.S. history: during the Civil War, to fight the Ku Klux Klan during Reconstruction, during a 1905 rebellion in the Philippines, and in Hawaii shortly after the Japanese attack on Pearl Harbor.