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Top court to hear deportation case

U.S. court to clarify rights of longtime illegals like ex-Utahn

Humberto "Bert" Fernandez-Vargas
Humberto "Bert" Fernandez-Vargas
Tyler Sipe, Deseret Morning News

A deported Utah man will have his day in the U.S. Supreme Court.

The justices agreed Monday to hear the case of former Ogden resident Humberto "Bert" Fernandez-Vargas to clarify the rights of longtime illegal immigrants to seek permission to stay in the United States.

The news caught his wife, Rita Fernandez, off guard. She said she is both scared and happy.

"I'm glad someone is listening to us," she said. "I just know he's a good person. I just hope this works out. I'm going to stay with this until the end."

Justices will decide if a provision in a 1996 federal law that tightened restrictions on illegal immigrants applies to people who were already in the United States when the law took effect.

The law says that once someone illegally re-enters the country after being deported, they have limited options to become legal residents.

"We're very excited for the opportunity to present our case to the Supreme Court," said Chris Keen, Fernandez-Vargas' Provo-based attorney. "There's a lot of suffering that could be alleviated by a successful outcome."

The court's decision will affect many people — perhaps hundreds of thousands of immigrants, wrote Fernandez-Vargas' Washington lawyer David Gossett in court documents.

Fernandez-Vargas' story was featured in the Deseret Morning News series "Life in the Shadows" in October.

"I have faith I'm going to going to go back home," he said in a September interview at his house Cuauhtemoc, Mexico. "I want to go back legal . . . I don't want to lose my family."

Fernandez-Vargas first came to the United States as a teenager around 1970. He was deported three times, most recently in 1981. He returned in 1982, eventually settling in Ogden where he married Rita, an American citizen, fathered a son who is now a teenager and owned a trucking business. By all accounts, he was an upstanding and tax-paying member of the community.

In 2001, he applied to become a legal and permanent resident based on his marriage. Citing the 1996 law, however, immigration officials arrested him during an interview in Salt Lake City. He spent a year in the Utah County Jail before being deported to Mexico in September 2004.

"It was not right what these people did to me," Fernandez-Vargas said.

Immigration laws are not uniformly applied around the country. Had Fernandez-Vargas lived in Los Angeles, Keen said, he would have received a green card. It is important for the Supreme Court to hear the case so it can make all the courts behave the same way, he said.

While Keen said he believes his client has a good case, it is risky because if the high court rules against him, it could constrain circuits that have acted more favorably toward illegal immigrants.

Solicitor General Paul Clement said that immigrants do not have grounds to complain that the restrictions are unfair, because they broke the law in re-entering the United States.

Fernandez-Vargas' attorneys will file written arguments in December or January and then wait for the government response. Keen said oral arguments could be made next spring.

Contributing: Associated Press