The City Council staffer detained by U.S. Immigration and Customs Enforcement last month remains in custody after a federal judge appeared unconvinced by his attorney’s arguments for his release in a Thursday morning hearing.
City Council data analyst Rafael Rubio, originally from Venezuela, was detained at a routine Jan. 12 immigration appointment on Long Island. He first came to the U.S. on a tourist visa, then obtained temporary protected status (TPS) and had authorization to work in the country, his attorney and the City Council have maintained.
“It’s a simple, very straightforward case,” Roger Asmar, Rubio’s attorney, told reporters after the hearing. “My client is protected.”
U.S. District Judge John Cronan of the Southern District of New York didn’t seem to feel the same way. In a heated exchange with Asmar near the end of the hearing, Cronan raised his voice at the attorney, who argued that, because Rubio’s latest TPS application was pending and he’d received government confirmation it had been received, Rubio had legal standing to remain in the country until October of this year, citing information on the federal government’s website about TPS for Venezuelans.
The federal government terminated TPS for Venezuelans in October 2025 (an action being challenged in court), but those who received TPS-related employment authorization documents, like Asmar said Rubio had, with Oct. 2, 2026, expiration dates on or before Feb. 5, 2025 will continue to maintain valid documentation until then, thanks to a May 2025 order from a federal judge in the Northern District of California.
Asmar also cited that California ruling as evidence for Rubio’s legal status and provided documents from the government affirming receipt of Rubio’s TPS application, stating that showed his application was pending.
When Cronan pointed out that that document said “this does not grant you any immigration protections” and “it does not show your case is pending,” Asmar said that was “standard practice” and the application was still pending, saying that if a person filed before the deadline, which Rubio had, they were protected.
“Don’t lose your credibility with me,” the judge shouted. “You’re saying this form that says [the application] isn’t pending is evidence that it’s pending. I think we’ve done enough here.”
“The court didn’t have a clear understanding of [the government’s] normal practices,” Asmar said after the hearing. “It was frustrating trying to explain.”
Assistant U.S. Attorney Chibogu Nneka Nzekwu said it was “misguided” to say Rubio had legal status under TPS and that he would not be included in the subgroup of TPS holders the California court decision applied to.
Asmar pointed out that Hugo Alejandro Caldera Ferrer, another Venezuelan in the United States with TPS whose case had “the same facts” as Rubio’s was detained in New York City, was released on Friday by a different federal judge. Cronan said he believed the legal question in that case was different, but he’d read it before making his ruling.
Ferrer shared a cell with Rubio for nine days at Metropolitan Detention Center in Brooklyn after they bonded over a realization they were from the same city in Venezuela. Ferrer, who attended Thursday’s hearing, said Rubio “was not doing well” in detention and was “very depressed.”
“He’s a beautiful person and a good man … who did the right thing,” Ferrer said. “Our situation is very tragic.”
When Rubio was taken into ICE custody, the federal government released a statement calling him a “criminal” who “had no legal right to be in the United States” a characterization Asmar and City Council Speaker Julie Menin have refuted.
“This is an employee who has done everything right. He complied with the law,” Menin said in a statement. “He has served the people of New York City with integrity and dedication. He is beloved by his colleagues, and his absence has been deeply felt.”
Rubio has had one dismissed arrest on his record, stemming from an altercation with a roommate who allegedly attacked him and a New York Police Department spokesperson said he had a lack of criminal history here, according to reporting from City and State.
Menin said she was “disappointed and outraged” Rubio remained in federal custody after the hearing.
“We will pursue every legal avenue available to secure Rafael’s release,” Menin said. “We will continue to press for transparency and accountability. And we will continue to stand by him and his family during this painful and unacceptable ordeal.”
