Fernandez-Vargas thought he was on his way to legal status, not to jail and back to Mexico. "He's a hard-working guy supporting a family. We send him out and look who's suffering: a bunch of U.S. citizens," his Provo-based lawyer Chris Keen said.
Fernandez-Vargas qualified in every way for a green card he's married to a U.S. citizen, has no criminal record and paid all INS penalties and fees, Keen said. But the "government decided to ignore that eligibility and remove him because he was deported back in 1981."Fernandez-Vargas said he doesn't regret the decision to apply for permanent residency. He did it thinking it would keep his family together.
(The government) don't care about the fact he didn't hurt no one or that he has a son who loves him or that my safe place home is going to be taken away or maybe that I will not see my dad again or how involved my dad was in my life. Anthony Fernandez letter
The Fernandez-Vargas case turns on two laws.
The first allows an illegal immigrant to apply for permanent residence provided certain criteria are met. The second allows the government to reinstate a previous deportation order. It also precludes the right to a hearing before an immigration judge.
Keen argued before the 10th Circuit Court of Appeals Fernandez-Vargas' only recourse that immigration authorities should have ruled on his permanent residency application before imposing the old deportation order. Furthermore, he said that the reinstatement law was applied retroactively because Fernan- dez-Vargas returned long before it took effect in 1997.
The appeals court disagreed, concluding the deportation order could be reinstated because Fernandez-Vargas' marriage and application for permanent residency did not occur until 2001. The reinstatement then rendered him ineligible for a status adjustment.
Keen said other courts have ruled that the adjustment application should be heard first and the deportation order be reinstated only if the person does not qualify for permanent residence.
"If he would have had his application in Los Angeles instead of Salt Lake, he would have his green card and wouldn't have been ripped apart from his family," he said.
Keen has asked the U.S. Supreme Court to hear the case "so they can make all the circuits behave the same way."
Contacted for comment, the U.S. Department of Justice declined. Spokesman Charles S. Miller cited ongoing litigation.
The Justice Department filed a response last week in which it agrees the Supreme Court should hear the case. Keen sees that as a good sign. "We think it means there's a real split in the country and the government wants it to be resolved once and for all," he said.
According to court records, the government did make a decision on Fernandez-Vargas' residency petition before reinstating the 1981 deportation order. U.S. Citizenship and Immigration Services denied his request in an undated and unsigned letter. He questions whether the letter was ever sent, saying he didn't see it until the 10th Circuit reviewed his case.
The government also claims Fernandez-Vargas misrepresented his immigration history on his 2003 permanent residency application, indicating he'd never been deported.
He and his wife don't deny there was misrepresentation but blame it on an Ogden woman they found through a radio ad to do the paperwork. Fernandez-Vargas told her he had been deported, but that information was apparently changed on the form after he signed it, they say. The fee was $2,500."We paid her a lot of money for nothing," Fernandez said.
There needs to be a solution soon, otherwise I will have to go to my house (heaven). I leave this to you written in case something happens to me you do not blame my wife or my son for anything . . . Honey, I have found sadness that seems to be a very great and a sad loneliness. I can't find the door and I think the best thing to do is hold on to the path to my house to meet with my family where it is peaceful and pleasurable. Bert Fernandez letter
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