Trump-appointed judge inclined to keep NYC Council staffer in ICE jail after testy hearing

MANHATTAN (CN) — Jailed New York City Council employee Rafael Rubio will remain in ICE custody for the time being, with a federal judge appearing skeptical to grant the habeas petition of the Venezuelan asylum-seeker.

U.S. District Judge John Cronan, a Donald Trump appointee in Manhattan’s federal court, stopped short of issuing a ruling on Thursday. But following a testy hearing on Rubio’s bid for release, Cronan’s skepticism was palpable from the bench. 

“Don’t lose your credibility with me,” Cronan barked at Rubio’s immigration lawyer Roger Asmar amid a squabble over Rubio’s pending application for temporary protected status.

Rubio was arrested at an asylum appointment on Jan. 12 by federal immigration authorities, who claim that Rubio “had no legal right to be in the United States.” Calling him a “criminal illegal alien,” the Department of Homeland Security justified Rubio’s arrest in part by referencing a past arrest for assault — a case that has since been dismissed and sealed.

Prior to his detention, Rubio had been working for the city council as a data analyst and compliance associate for about 10 months.

Rubio now claims that his pending application for TPS should keep him out of ICE jail, an argument Cronan was hesitant to accept. Rubio was granted that status previously, then lost it and reapplied in early 2025. In the meantime, Trump started his bid to strip Venezuelans of TPS protections, an ongoing effort that is still weaving its way through the courts.

Asmar argued he has personally litigated several similar cases of pending TPS applicants who have since been freed from ICE detention — including one from Hugo Ferrer, a Venezuelan man ordered released by a federal judge in Brooklyn last week. Ferrer attended the hearing to help Asmar make the point.

“It’s a completely different legal issue,” Cronan said of the comparison.

For Asmar, an immigration litigator for over two decades, Cronan’s skepticism was a byproduct of the game of luck habeas petitioners are forced to play in Trump’s second presidential term. 

A vast majority of federal judges around the country have sided against the government’s widespread immigration arrests, with most finding that the nationwide campaign violates detainees’ right to due process. 

But some have been friendlier to the agenda, like U.S. District Judge Mary Kay Vyskocil, another Trump appointee in Manhattan who has rejected habeas petitions from several noncitizens since the start of 2025. In their argument against Rubio, federal prosecutors cited Vyskocil’s dismissal of a habeas petition from another Venezuelan candidate for TPS earlier this month.

“It was a little bit frustrating,” Asmar said after Thursday's hearing, acknowledging that his client may have drawn a tough judge in Cronan.

The New York City Council has been vocal in demanding Rubio’s release, writing to the court that the 45-year-old is “a valued employee of the city council with close ties to our community.”

Prior to his arrest, Rubio had been working for the council in its personnel services division. His colleagues say that Rubio is “widely regarded as a trusted and collaborative colleague” who “goes the extra mile” to help them, according to court filings. 

“His sudden and ‘deeply jarring’ detention has ‘had a profound impact on staff morale,’” the council wrote to the court, quoting Rubio’s colleagues. 

New York City Council Speaker Julie Menin said in a statement the council is “deeply disappointed and outraged” that Rubio remains in federal custody.

“From the very beginning, we have said it clearly: Rafael’s detention was unlawful,” Menin said. “He had legal authorization to remain in this country. There was no judicial warrant. And yet he was taken into custody at what should have been a routine immigration appointment.”

After more than a month behind bars, Rafael is doing “very badly,” according to Ferrer. 

Prior to sharing a lawyer, Ferrer said he shared a jail cell with Rafael for eight days in Brooklyn’s Metropolitan Detention Center, an infamous federal prison that is currently housing ICE detainees.

“Imagine tomorrow being in a federal maximum security prison, being treated as a criminal for doing nothing,” Ferrer told reporters outside of the courtroom. “Do you deserve to be there? Of course not. How would you feel in his position?”

“After you get out, you are not the same person,” he added.

Cronan didn’t provide a precise timeline for his impending ruling, only stating that he hopes to issue one “in the short term.”

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