Outcast in Mexico, outlaw in Utah

By all accounts, he has been an upstanding member of the community since he and Rita got together. He worked on a Ogden city maintenance crew and as a truck driver in the metal salvage business until buying his own rigs. He earned as much as $50,000 some years and has consistently filed an income tax return.

"He's not a drain on society and he's not a criminal," said Darnell Fielding, a longtime business associate who was shocked at his friend's arrest. "I just know he's a good citizen."

A citizen he is not. But that desire is what put him in the predicament he faces.

Fernandez-Vargas applied to become a legal permanent resident based on his marriage. The former INS assessed him a $1,000 penalty for re-entering the country illegally in the past. It accepted the payment, and the BCIS issued him a work permit.

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.