Tyler Sipe, Deseret Morning News
CUAUHTEMOC, Mexico For the first month or so, Humberto "Bert" Fernandez-Vargas couldn't set foot in the town plaza where as a boy he shined shoes and sold candy bars for a few pesos.
His daily walk down the uneven sidewalk on Avenue Augstin Melgar always ended at the intersection of Avenue Ignacio Allende across the street. He just stood there, sometimes for hours, thinking and watching the striped-shirted cowboys, earnest snack vendors and streetwise shoeshine boys.
He couldn't say why but those people in the park scared him. They weren't his people. Still aren't. Never will be.
"The town is not my town. I don't want it. I don't want to be here. I want to be home," Fernandez-Vargas said, wearing a black USA cap and a T-shirt reading "Mexican-American" on the back, both gifts from his son. "I don't want nothing to do with this place."
He is an outcast here.
Home to him is Utah, the place he lived for more than two decades. Home is the United States, the country that threw him out a year ago to the day of this interview with the Deseret Morning News.
He is an outlaw there.
Fernandez-Vargas eventually mustered the courage to break through the imaginary wall around the park with tall fir trees and bronze plaques of past Mexican presidents. Though he ambles there every day now, his mind wanders northward to another barrier, one that is much more formidable with its barbed-wire fence and armed guards.
He's thinking about busting through it, too. But that would ruin everything. He could be caught. His case pending before the U.S. Supreme Court would fall apart.
Or would it heal everything? He would be back with his wife, Rita, and son, Anthony, and his "babies," the dogs. It's so confusing.
Maybe it's better to wait.
Maybe it's better to go now.Maybe it's better to pull the trigger and end it all here in Mexico, where it began. That would get him back to Utah.
I love you Rita Hernandez. Please do not abandon me because I love you with all the strength of my heart. I need you to be able to continue living this way. Soon my love, my Boo Boo.Letter from Bert Fernandez to his wife. (translated from Spanish)
On the morning Fernandez-Vargas left, an uneasy feeling gnawed at Rita Fernandez. Her husband thought he was going to a routine immigration interview about his request for permanent residency.
Though he had lived in the United States illegally for some 30 years, Fernandez-Vargas assured her everything would be fine. He hugged and kissed her as he did his 14-year-old son, who was getting ready for school.
"I will call you as soon as I get out of that office," he told her.
A truck driver, Fernandez-Vargas climbed into one of the two semis he owns. It rumbled from his Ogden home to the U.S. Bureau of Citizenship and Immigration Services in Salt Lake City on Nov. 7, 2003. He asked for an early morning meeting so he could drive straight to a trucking job at Kennecott Copper.
True to his word, Fernandez-Vargas called his wife at 1 p.m. no longer a free man.
"I'm going to jail," he told her.
Unbeknownst to him, the Department of Homeland Security had reinstated a 1981 deportation order. Agents arrested him on the spot.
Fernandez-Vargas, 53, spent a year in the Utah County Jail while his lawyer argued his case, which the Supreme Court may decide to hear. On Sept. 9, 2004, U.S. Immigration and Customs Enforcement put him on a plane to Mexico. He walked across the Paso Del Norte bridge to the rough border town of Ciudad Juarez, passing fellow Mexicans headed the other direction. He had $97.34 in jail earnings and a plastic bag with personal papers and arthritis medication.His first few weeks were spent milling around the Rio Grande, watching the Border Patrol nab people sneaking across the line.
Honey, I am very sad and inconsolable to clearly discover what I am doing here. My life is another place. I love you with all of my life. Me without you, I do not want to live. Bert Fernandez letter
Rita Fernandez was born in Ogden and has spent most of her life on its industrial west side. She lives in a tiny two-bedroom home on dusty Kershaw Street. Four vehicles are parked in the gravel outside the house, none in running condition. A weathered blue tarp covers a late-model camp trailer the family bought shortly before Fernandez-Vargas was arrested.
Other than a borrowed big-screen TV, there is no living room furniture. A treasured collection of blue glass vases, teapots and wine bottles fill a wall shelf. Except for appliances, the kitchen, too, is empty.
Fernandez, 46, pulls out a stack of brown envelopes.
"This is our little immigration pile," she said, spreading legal documents, jailhouse letters and prepaid phone cards across the freshly vacuumed carpet.
The tears and the story start flowing without prompting.
"It's not easy. It's hard. We don't know anything about immigration. My husband has never lied to me. He always told me the truth. He's never been arrested for anything but being illegal. It was a blow to both of us."
And to Anthony, now 16, who more than ever needs his father. Fernandez-Vargas worries he will fall in with the wrong crowd at school and might turn to drugs."You don't know how much I miss my Anthony," he said, surprised to learn his son is now taller than him. "How is he going to turn out? That's what I got in my head is my son. Nothing else."
You know I don't understand imigration (sic) and guess maybe someday I will. But I don't get mad about what happened to us because I know my dad and I am very proud of him. Letter from Anthony Fernandez to an immigration attorney
Fernandez-Vargas really didn't have much of a father or a mother, for that matter. The sixth of seven children, his parents handed him off to his grandparents shortly after birth. When they died, he returned to his parents. He didn't attend a day of school. He ran the streets of Cuauhtemoc.
His father used to beat him for no reason, including hitting him in the head with a hammer and whipping him with a rope. The welts left him wishing he were dead.
He'd had enough as a teenager and crossed the border for the first time to escape.
Due to some stupid mistakes, Fernandez-Vargas has a somewhat checkered past. He has been deported at least three times. But other than immigration violations he has no criminal record, according to his FBI rap sheet. A computer search of Utah state courts showed three traffic citations, the last one in 1994.
In July 1970, the former INS apprehended him near Nogales, Ariz., driving 13 undocumented immigrants to Boise. He didn't drive them across the border, but he had climbed a border fence to pick up an employer's van at a pre-arranged spot. He then drove it to a hospital where he picked up the others. His employer paid him $100, according to an INS report.
The government deported him in October of that year but did not charge him with a crime related to transporting illegal aliens.
In the early 1970s, he entered into a marriage of convenience with a 40ish woman in Wyoming, believing it would be a path to permanent residency. The former INS denied his visa application because he indicated he had never been incarcerated when, in fact, he had spent 90 days in an Arizona jail for being in the country illegally. The woman later died.
Fernandez-Vargas was last deported in December 1981. He returned to the United States without documentation through El Paso, Texas, in January 1982. He cavorted and drank a lot in those days and didn't think life was worth living. One night in a drunken stupor, he turned a rifle on himself. He bears a scar where the bullet pierced his abdomen.He considers that a turning point in his life that moment and moving in with relatives on Kershaw Street next to the woman he eventually married.
I need your support and your help because I do not have any other help than yours and from my son. I need you (all) more than ever. Bert Fernandez letter
Months behind on the mortgage, Fernandez is about to lose the house she and her husband bought on the street where they met. She has sold off many of its furnishings. Anthony, too, parted with his Nintendo, television, computer and GameBoy at swap meets and yard sales. There weren't new school clothes this year. Anthony, who has asthma, sometimes complains about being hungry.
Last month, Fernandez received a letter terminating her son from the Children's Health Insurance Program.
"People really don't realize who suffers from all this," she said. "We suffer. We have suffered. We are still suffering."
A stay-at-home mom since her son was born, Fernandez has few job skills. The owner of a neighborhood market recently gave her a chance to be a clerk.
As hard as it is making ends meet, the heartache of being apart from her husband is worse.
"I miss this man so much," Fernandez said. "I know if he was here, we wouldn't be going through this."
Anthony Fernandez is quiet and introspective. He obtained a driver's license this year. He joined the ROTC at his high school and has thought about entering the military. He recently found a job busing tables. He had no idea his father was what the government calls an "illegal alien."
All he knows is that his dad adores him and that they did all-American things together. They went on long-haul trucking jobs throughout the West. They camped, fished and hunted together. They watched boxing on TV. They were big Chicago Bulls fans.
Anthony didn't know what to think that November afternoon when his mother told him his father was in jail. He didn't understand. He just cried. He still doesn't understand."I just wish it didn't happen," he said.
I get sad because I watch the news when the government talks about deportation, ilegal (sic) aliens, they are talking about my dad. But you know, sir, what happens to their familys (sic), familys like us? . . . I don't understand about what has happened to us. My dad tells me he didn't apply for papers for himself but for me so this wouldn't happen to our family.Anthony Fernandez letter
Bert and Rita Fernandez have lived together since 1985. A Weber County justice of the peace married the couple in March 2000. Anthony is their only child.
Responsibility and fatherhood straightened out Fernandez-Vargas, that and laying off the booze. For the first time, he felt like a man. "I had a beautiful life, the kind of life I never had."
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.
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
Fernandez-Vargas lives in Cuauhtemoc, a city of 150,000 people about 45 miles southeast of Chihuahua City. Farmland and Mennonite camps surround the town named for the last Aztec emperor.
Work is sporadic. He had a job with a crew renovating a soccer stadium but quit after refusing to climb to the top of a scaffold to paint without safety equipment. His pesos for the week amounted to $3. He parks cars on occasion for an acquaintance. His wife can no longer afford to send him several hundred dollars a month. He's hoping to hire on at an apple orchard during the harvest.
He lives with two women and two girls in a light blue masonry house with concrete floors on land his father once owned. The refrigerator is mostly empty. A rooster, a couple of dogs and a cat with kittens scrounge for scraps in the muddy yard. Fernandez-Vargas does work around the house in exchange for a room. He's lost 20 pounds. His rheumatoid arthritis is acting up, and he is low on medication. His body was bruised when a truck hit him while he was riding a bicycle recently. He cries a lot. He's not sure how he is going to survive long term.
"If you don't have the money, you die here," he said.
Fernandez-Vargas spends many days climbing a sagebrush-covered hill above his house or reading on a broken-down couch in the unkempt yard. He has no friends. People laugh at his Spanish.
Fernandez calls him on her cell phone twice a week, hence the mounting stack of prepaid phone cards. Her husband always expresses his love for her and Anthony.
"I try to make him laugh as much as I can," Fernandez said. "Sometimes it works, sometimes it doesn't."
Fernandez-Vargas often sounds depressed. He tells her he is going to sneak back into the country. She talks him out of it. He says he doesn't want to live anymore, and he's getting a gun. She tells him that is the cowardly way out.
"It's not just your problem," she tells him. "It's our problem."
Somehow, though, Fernandez-Vargas intends to find a road back to the place he considers home."If I die, I don't want to be buried here," he said. "I told my wife I want you to cremate my body and take me back to Utah. That's where I want to be."
The new INS
The alphabet soup of the American immigration system can be confusing. In a nutshell:
There is no longer any agency known as U.S. Immigration and Naturalization Service or INS. In March 2003, INS became part of the Department of Homeland Security and was split into two bureaus.
U.S. Immigration and Customs Enforcement (ICE) handles investigations, detention and deportation operations and federal protective services.
U.S. Citizenship and Immigration Services (USCIS) is responsible for the administration of visa petitions, naturalization petitions and asylum, and refugee applications.
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