Taxpayer-funded lawyers and a panel of Biden-appointed judges helped a migrant repeatedly arrested for publicly exposing his genitals avoid deportation.
Lucio Tomar — a Cape Verdean national who has been arrested at least 19 times on open and gross lewdness and indecent exposure charges since 2006 — is no longer being held in Immigration and Customs Enforcement (ICE) custody following a ruling by the U.S. Court of Appeals for the First Circuit. The exhibitionist was ordered removed by an immigration judge in July 2024, but the appeals court effectively halted his deportation in January, finding that his conduct wasn’t necessarily sexually motivated.
“[Would] you want this perp convicted of serial sexual misconduct around your children or family?” Assistant Homeland Security Secretary for Public Affairs Tricia McLaughlin told the Daily Caller News Foundation. “No.”
“These convictions nullified his green card,” McLaughlin continued. “He was arrested by ICE in 2024, but due to activist judges, this criminal alien’s legal status has been restored, and he is now allowed to roam free and terrorize more innocent Americans.”
Lucio Tomar. Image courtesy of U.S. Citizenship and Immigration Services.
Since legally entering the U.S. in 2003, Tomar has been arrested at least 17 times in Massachusetts for “open and gross lewdness,” three times specifically for “indecent exposure” and another two times for “lewd wanton lascivious conduct,” according to information the DCNF obtained from U.S. Citizenship and Immigration Services (USCIS). He was also arrested twice for failing to register as a sex offender.
Not all of Tomar’s alleged crimes explicitly involved his genitals, with the Boston Police Department arresting him in May 2007 for possession of Class D drugs and again in May 2020 for disorderly conduct and attempted breaking and entering a residence at night, according to USCIS information.
The 41-year-old was convicted of open and gross lewdness in April 2021 and again in January 2022, according to court records. Under federal law, any alien convicted two or more times of a crime involving moral turpitude (CIMT) is deemed deportable. Considering these two convictions under the umbrella of CIMT, federal immigration authorities revoked Tomar’s lawful permanent status and ICE agents arrested him in a Boston neighborhood on April 24, 2024.
Agreeing with the federal government that open and gross lewdness is a CIMT, an immigration judge ordered Tomar removed from the country in July 2024, according to court documents. The repeat sex offender lodged an appeal, but the Board of Immigration Appeals (BIA) affirmed the judge’s decision in November 2024.
Tomar then petitioned the BIA’s decision with the U.S. Court of Appeals for the First Circuit. In a ruling handed down in January, a three-judge panel ultimately sided with Tomar, concluding that Massachusetts courts have convicted individuals for open and gross lewdness absent of sexual motivations, meaning Tomar’s crimes were not necessarily CIMT and thus not deportable offenses.
In their 19-page opinion, the judges noted that it’s possible for individuals to be convicted in Massachusetts of open and gross lewdness for actions that are not always triggered by sexual inhibitions, such as mooning oncoming traffic or nude sunbathing. The judges also cited a past case in which a defendant claimed that, what appeared to be public masturbation to unsuspecting victims, was in actuality a “medical issue.”
“Because the judicially construed elements of [open and gross lewdness] on their face do not necessitate a finding of lewd intent, the offense is not a categorical match with the immigration‑law definition of a CIMT,” the judges concluded. “The petition for review is therefore granted, the order of the BIA is reversed, and the matter is remanded (emphasis theirs) to the agency for further proceedings consistent with this opinion.”
Tomar was released from ICE custody on Jan. 26 and is no longer undergoing deportation proceedings, an ICE source confirmed to the DCNF. Federal immigration authorities confirmed that he is once again considered a lawful permanent resident.
The court decision was penned by Judge Samantha Elliott of the U.S. District Court for the District of New Hampshire, appointed to the bench by former President Joe Biden in 2021. The other two judges on the panel, Julie Rikelman and Seth Aframe, were also appointed to the U.S. Court of Appeals for the First Circuit by Biden.
After touching down at the John F. Kennedy International Airport for the first time in 2003, Tomar became well-known among Boston law enforcement for repeatedly touching himself in public spaces.
A Boston woman on Oct. 6, 2023, called police when she noticed a BMW parked in front of her with Tomar in the driver’s seat allegedly exposing his penis and touching himself. Just three days later, Boston police responded to a call about a man in a black-hooded sweatshirt “pleasuring himself,” later finding Tomar in a black-hooded sweatshirt and driving with a shattered windshield that had been smashed by the woman’s son.
Tomar was also caught whipping out his penis in plain sight of cops. Assigned to the Dorchester neighborhood and operating in civilian clothing in November 2019, officers observed the Cape Verdean national allegedly exposing himself and committing “a lewd act” roughly seven yards away from them, according to a press release by the Boston Police Department.
Tomar was classified as a level 3 sex offender — the highest level in the state, meaning he was at major risk of reoffending and a danger to the public, according to past records on the Massachusetts Sex Offender Registry Board. The registry board previously listed Tomar as being convicted of “open and gross lewdness and lascivious behavior” in 2009, 2010, 2015, 2021 and 2022.
When questioned as to why Tomar was continually released back into the public despite so many arrests and convictions over the years, local law enforcement said prosecution can be complicated when it involves an individual who does not commit physical violence against another person.
“The charge of open & gross lewdness in Massachusetts carries a maximum of 2.5 years in the House of Correction, or three years in state prison if indicted as a repeat offender, “James Borghesani, chief of communications for the Suffolk County District Attorney’s Office, told the DCNF in May 2024. “Our prosecutors have often sought strong sentences for Tomar and the courts have sometimes agreed, sometimes not, since the crime does not involve actual violence against a person.”
ICE kept Tomar detained at the Caroline Detention Facility in eastern Virginia for nearly two years while he worked to erase his deportation order, detainee records showed.
The Cape Verdean’s successful court battle was aided by taxpayer-funded legal services. Maria Hwang, a member of the Massachusetts Committee for Public Counsel Services, a state agency that provides legal services to indigent individuals who cannot afford to hire an attorney, was listed in court documents as Tomar’s attorney.
Massachusetts taxpayers provide millions in funding to the agency every single year, according to an online budget breakdown published by the governor’s office. Hwang specifically works within the agency’s immigration impact unit.
The Massachusetts Committee for Public Counsel Services did not respond to a request for comment from the DCNF. Tomar also did not respond to a request for comment.
“We will continue to fight for the arrest, detention, and removal of aliens who have no right to be in this country,” McLaughlin told the DCNF. “A green card is a privilege, not a right, and under our nation’s laws, our government has the authority to revoke a green card if our laws are broken and abused.”
Echoing language similar to the Trump administration, immigration hardliners blamed the restoration of Tomar’s lawful status to activists within the judicial system.
“This pervert belongs on the sex offender registry and on an ICE Air flight back to his native country — where he’d likely be subject to severe punishment for this kind of crime,” Matt O’Brien, deputy executive director of the Federation for American Immigration Reform, a conservative immigration group, stated to the DCNF. “Instead, an activist court has given him a free pass to continue fondling himself in public.”
“What benefit is the U.S. gaining from the presence of this man?” O’Brien asked.
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