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Many lives hinge on migrant's court case

Humberto Fernandez-Vargas, now in Cuauhtemoc, Mexico, hopes to return to Ogden to be with his family.
Humberto Fernandez-Vargas, now in Cuauhtemoc, Mexico, hopes to return to Ogden to be with his family.
Tyler Sipe, Deseret Morning News

The future of perhaps hundreds of thousands of longtime illegal immigrants in the United States rides on the court case of a deported Utahn.

A favorable decision for Humberto "Bert" Fernandez-Vargas could pave the way for many to become legal permanent residents and ultimately U.S. citizens. A ruling against him would block that from happening and possibly result in countless deportations.

"I think it matters a lot to a bunch of people," said David M. Gossett, a Washington, D.C., lawyer representing Fernandez-Vargas.

Many of those people would be undocumented immigrants who, like the former Ogden resident, were removed from the country, came back and established productive lives.

The U.S. Supreme Court agreed last month to hear the case to clarify the rights of longtime undocumented immigrants to seek permission to stay in the United States. Oral arguments are anticipated next spring.

In court briefs, Department of Justice lawyers say the question is of "significant practical importance" to the enforcement of immigration laws. Immigration lawyers as well as anti- and pro-immigration groups around the country are watching it closely.

"This case has picked up a lot of attention," said David Leopold, an American Immigration Lawyers Association executive committee member.

At issue is whether a law that provides for the reinstatement of a previous deportation order against a person who illegally re-entered the country applies to those who arrived before its April 1997 effective date.

"It's pretty straightforward," Gossett said. "Why should the government apply a law passed in 1996 to people who are already in the country? It doesn't make sense."

Government lawyers say the reinstatement statute is no different than a new property tax or zoning regulation. "Just as a new property tax is applied on a going-forward basis, (the statute) reflects Congress' intention to apply new rules for the reinstatement of removal orders on a going-forward basis," according to court documents.

The justice department did not return telephone calls seeking comment.

The Federation for American Immigration Reform also finds the issue straightforward.

Fernandez-Vargas came into the country illegally and shouldn't be rewarded for it, said Ira Mehlman, FAIR spokesman.

"Every step of the way, he knew what he was doing was illegal," he said, adding it doesn't matter that he now happens to be caught in between the law.

"You don't benefit from an illegal act," he said.

One of the problems with the reinstatement law is its uneven application across the nation. Federal appeals courts interpret it differently.

The 6th and 9th circuit courts of appeals concluded it does not apply to undocumented immigrants who re-entered the country before April 1997. The 6th Circuit comprises Michigan, Ohio, Kentucky and Tennessee.

Nine states make up the 9th Circuit, including California and Arizona, which are home to nearly 3 million illegal immigrants combined. It handles about 45 percent of the nation's immigration cases in appeals courts, according to the justice department.

Had Fernandez-Vargas, 53, lived in one of those states, he would not have been deported but allowed to obtain a green card.

Eight courts of appeals, including the 10th Circuit in which Utah resides, concluded the law does apply retroactively and those who re-entered the United States without documentation have no standing to become permanent residents.

The disagreement among the federal appeals courts makes it a prime case for the Supreme Court.

"The law shouldn't be one way in Salt Lake City and another way in Cleveland, Ohio," said Leopold, who practices immigration law in Cleveland. "It's not fair. People should not have their federal rights dependent on where they live in the country."

Advancing the case to the top court creates some uncertainty for undocumented immigrants, especially those in the West, who have raised families and established employment over years or decades. A ruling in the government's favor would preclude them from gaining legal status.

"In that sense, it's very risky," Leopold said. "It could substantially change things for people in the 9th and 6th circuits."

According to government estimates, hundreds of thousands of people live in circumstances similar to the man at the center of the Supreme Court case.

Fernandez-Vargas was deported at least three times and last re-entered the United States in 1982. He married an American citizen, has a teenage son and owned a trucking business. He applied for a green card on the basis of his marriage. Immigration agents arrested him during a routine interview in 2003, reinstated a 21-year-old deportation order, held him in jail and a year later sent him back to Mexico.

The separation has taken an emotional toll on him and his family. But the Supreme Court's announcement was welcome news.

"I feel like I'm going to win," Fernandez-Vargas said by telephone from Cuauhtemoc, Mexico. "I feel like I'm going to get the (immigration) papers back."

Should that be the case, Gossett said, he would be permitted to re-apply for a green card and return to the United States. "Unfortunately, there aren't any guarantees," he said.

Leopold said even though Fernandez-Vargas was physically removed from the country, jurisdiction would continue. "It would be kind of a hollow remedy if he won his case and was not allowed back in."