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At the center of one Minnesota man’s fight to stay in the U.S.: a program to protect undocumented crime victims from deportation

At issue is whether deferred action related to a pending U-visa — given to those who’ve been victims of a crime — actually defers people from deportation. 

Carolina and Hector Avila with their daughter and son in a vacation photo.
Courtesy of the Avila family

By the time Carolina decided to go with her husband Hector Avila to Dakota County District Court last summer, she had heard enough stories to worry. 

Carolina didn’t want Avila, an undocumented immigrant who needed to appear in court for a DUI case, to be picked up by federal agents for deportation. So she devised a plan to ensure her husband could attend the hearing in Hastings without having to face agents from Immigration and Customs Enforcement.

Carolina would drive to the courthouse alone while Avila would ride with her brother-in-law. Once they reached their destination, Avila would remain in his brother-in-law’s car while Carolina would go inside to make sure ICE agents weren’t there. If things looked clear, she would come out and signal for her husband to enter the court.

On July 17, 2017, Carolina drove to the court as Avila followed. Once in Hastings, Carolina followed the plan, entering the building alone and scanning for signs of ICE agents. When she didn’t see anything suspicious, she headed for Avila to tell him it was okay to come in. Before she could get to her husband, three ICE agents approached the parked vehicle where Avila was waiting. “They put two huge guns on them, one pointing in the front; one in the back, and they asked for Hector,” she said. “They took Hector.”

Getting legal status   

Months months before ICE detained him, in February 2017, Avila celebrated his birthday by getting a drink with a friend. As the two walked back to Avila’s Richfield home, they were assaulted in an armed robbery. “They got badly beat up; they got pepper sprayed; they ended up in the hospital,” said Carolina.

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After the assault, Avila applied to the United States Citizenship and Immigration Services (USCIS) for a U Nonimmigrant Status, or U-visa, which provides legal status to undocumented residents who have fallen victim to criminal violence, sexual assault or human trafficking, and — most importantly — are willing to fully cooperate with law enforcement in order to investigate and prosecute those who perpetrated the crimes.

Avila was a strong candidate for the designation, but the USCIS only grants 10,000 such visas to eligible undocumented victims nationwide in any given year, and it typically takes years until most applicants receive the status.

Still, the agency doesn’t entirely leave applicants in limbo while it decides their fate. It conducts a preliminary review to determine who qualifies and who doesn’t. If the USCIS decides a person is likely to receive the status, it provides them with what’s called deferred status. Though the designation does not give the holder legal resident status, it can indefinitely delay efforts to repatriate them to their country of citizenship.

And that’s what happened with Avila. “As the fiscal year limit is the sole reason you cannot be granted U-1 nonimmigrant status, your petition is being placed on a waiting list,” the USCIS’ letter to Avila stated. “You have been placed in deferred action as permitted by regulation.”  

By the time Avila got the letter, in February of 2018, however, he was sitting in Sherburne County jail, where he’s been detained since being arrested. “Avila has suffered substantial physical and mental abuse,” said his lawyer, Mai Moua. But “instead of being given access to therapy, he’s been locked up and can be deported at any time.” 

The legal battle to stay 

Prior to the July arrest, Avila had lived in Minnesota for almost two decades. It’s where he got married; where he built a career as a truck driver and diesel mechanic; and where he raised two U.S.-born children with Carolina, a naturalized U.S. citizen from Costa Rica.

The couple met in the 1990s, after Avila first entered the U.S. from Mexico legally and ended up in Minnesota. Several years later, Avila returned to his hometown in the state of Morelos in south-central Mexico to visit his dying father. Due to the brewing violence there, he feared for his life, and soon decided to return to the U.S.

So in Jan. 1999, Avila attempted to do just that, unsuccessfully. He was detained and immediately deported to Mexico after presenting immigration officials with a “fraudulent document,” according to court records. Illegal re-entry after removal is a felony offense with a maximum penalty of two years in prison and a $250,000 fine, but Avila was determined to get back the U.S. Just a month after he was first deported, he crossed the border again, this time evading detection.

In Minnesota, he had managed to live in the shadows, avoiding any contact with law enforcement, for the next 18 years. That changed on Feb. 21, 2017, when he was arrested in Dakota County for driving under the influence. “He was out with a friend eating and drinking at a restaurant,” said Moua. “He thought he was okay to drive but wasn’t.”

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According to a court document, Avila was charged with driving under the influence; operating a vehicle with a blood-alcohol concentration of 0.08 percent; failure to drive in a single lane; and careless driving. He was set to appear at a hearing related to the case when ICE took him into custody. 

Because he had a U-visa pending at the time, however, Avila has been engaged in a legal fight to stay in the country ever since. His lawyers are arguing that he shouldn’t be in removal proceedings since he has a pending legal status. 

John Keller, executive director of the Immigrant Law Center of Minnesota, said the deferred action on a U-visa is supposed to protect individuals from deportation, but — as with many aspects of the federal government — things at USCIS have “dramatically” changed during the Trump administration.

“If deferred action has to have any meaning in the world of immigration law, it has to be valid for deferring you from deportation,” said Keller, who isn’t involved in Avila’s case. “If [it’s] cheapened or becomes questionable or meaningless … that’s going to be a problem for regular ongoing interpretation and processing of these kinds of cases.”

Avila’s attorneys are also arguing that he has a credible fear of persecution in Mexico and that deporting him would amount to a death sentence. Further, Avila’s attorneys are challenging the government to release him from detention as immigration judges determine his fate in the United States. 

So far, the government has denied each one of those requests. In fact, in a court document, ICE noted that Avila is a “flight risk” because of his past history of forging a birth certificate and illegally re-entering the country after deportation.

Like many undocumented immigrant petitioners, Avila also filed an appeal with the Board of Immigration Appeals (BIA), a Virginia-based court that’s housed in the Department of Justice, asking for a withholding of removal.

Despite the fact that the BIA is part of the DOJ, which is run by Attorney General Jeff Sessions — known for his hardline stance on immigration — the board may represent Avila’s best chance for getting out of jail. Keller says BIA is considered an independent court system that operates outside the influences of today’s polarized politics. “People will disagree to what extent, but they interpret the law and they do rule against the administration or ICE attorneys,” he said. “I think most immigration attorneys feel like it’s a court process where — depending on the judge — you do have a decent shot under pretty awful laws.”

Meanwhile, ICE is proceeding to deport Avila as soon as the withholding processes are completed, saying that “his removal is likely in the reasonably foreseeable future” in a court document.

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If that happens, Carolina said, she’ll be left alone to juggle two jobs to make ends meet, while also caring for her 14-year-old daughter, 11-year-old son and her aging mother, who’s battling with lung cancer that left her blind. 

“I don’t understand why the government wants to take Hector away from his family,” she added. “He never committed a crime against anyone; he was never involved in drug or gang activities; he was a good father to his kids; he was a good husband to me.”