Attorneys Spar Over Release of Immigrant Who Agreed to Leave US

HOUSTON (CN) – A Mexican woman being held in a Houston immigration jail despite agreeing to return to the country she left with her parents as an infant won a small victory Monday when a federal judge said she should get a bond hearing to lobby for her release.

Jessica Farfan Angel, 34, is a legal permanent resident and single mother of a 16-year-old son. Her family says she changed her life after pleading guilty to misdemeanor attempted possession of less than one gram of cocaine in 2006 and serving a month in Harris County Jail in Houston.

“She’s a great mom. She is mom and dad. That’s the only person I have. She would go to work for me to get me this and that, work Saturdays for me, do anything for me,” her son Junior Martinez said Monday afternoon after her hearing at the federal courthouse in downtown Houston.

Martinez said his mother, who works in the medical field in billing and as a surgical assistant, had picked up a second job and was looking forward to starting it the next day when immigration agents detained her at Bush Intercontinental Airport on a Sunday in February, while mother and son were returning from a short trip to Mexico.

Farfan’s case exemplifies how, under President Donald Trump’s harsh immigration policies, minor crimes that people were convicted of years ago are coming back to haunt  them, even when they are legal permanent residents, also known as green-card holders.

“She’s like any other person. She’s not a criminal. She did something a long time ago and ever since then she’s gotten her life together and didn’t go back to any trouble with the law,” her sister Nancy Farfan said at the courthouse.

Nancy, 30, said there “was like nothing pretty much” in the small baggie that police found in the pocket of her sister’s jeans in 2006 that tested positive for trace amounts of cocaine.

“It was a bag with resin,” said Martinez, a quiet, fresh-faced teen with the deep voice of a full-grown man.

Nancy said that before Trump took office, Farfan traveled to Mexico a couple times and went on some cruises out of the country, and “never had any issues” getting back into the United States. Farfan has lived in the United States since she was 1 year old.

But shortly after his inauguration, Trump made good on the anti-immigrant rhetoric that propelled his presidential campaign. He signed an executive order on Jan. 27 that briefly banned people traveling from seven countries from entering the country before courts blocked it.

Though no Latin American countries were on the list, numerous media reports said Latino green-card holders were also detained by immigration authorities at U.S. airports in the days after Trump signed the order.

Nancy said the confusion about how the government was enforcing the ban did give her sister pause before she went to Mexico.

“She was a little nervous just because of what they were saying in the news. Everybody was pretty much being detained and she didn’t know what would come up,” Nancy said.

Farfan’s fears were realized when authorities at the airport flagged her drug conviction. Green-card holders detained at an airport are considered to be “inadmissible aliens,” treated as if they were stopped at the border, and have less constitutional rights than green-card holders and U.S. citizens detained within the country.

“At the border you’re not entitled to a bond generally speaking,” Farfan’s attorney Anne Kennedy said in an interview.

Farfan has been in a Houston immigration jail run by CoreCivic, one of the nation’s largest private prison contractors, since she was arrested on Feb. 4.

Kennedy said the jail’s rules only allow Farfan to visit with one family member for one hour per week, and she can only have two adults and two kids on her list of visitors.

After unsuccessfully fighting deportation for months and growing weary of life behind bars, Farfan took a different tack. She filed a motion in August to withdraw her request for admission to the United States and voluntarily return to Mexico, asking for her release on bond with an ankle monitor. An immigration judge granted the motion, but the government appealed that ruling to the Board of Immigration Appeals on Sept. 11, which has left Farfan in limbo.

Farfan said in an Oct. 19 federal habeas petition that her prolonged detention has become punitive in violation of the Eighth Amendment’s ban on cruel and unusual punishment.

Kennedy told U.S. District Judge Gray Miller at Monday’s habeas hearing that “there’s no such thing as a speedy appeal” due in part to a backlog in U.S. immigration courts that the Washington Post reported in late September has spiraled to more than 600,000 cases.

“It falls into a queue and it will take anywhere from six months to a year, possibly more than a year, for her to get a decision,” Kennedy said.

Justice Department attorney Eleanor Robinson Gaither told Judge Miller the government appealed the order to let Farfan voluntarily return to Mexico because it’s concerned that without a deportation order, Farfan could keep her lawful resident status and just “slip back into the country.”

But Farfan’s attorney disagreed.

“That’s incorrect. She came in as an [LPR, or lawful permanent resident]. She’s always been an LPR and every time I’ve done a withdrawal in 13 years, they invalidate the visa or they cut up her green card. So what is before the Board of Immigration Appeals is whether she is going under a deportation order,” Kennedy said, citing her 13 years of experience.

Kennedy said a deportation order would bar Farfan from reentering the country for 10 years.

“And she has a U.S. citizen child who is going to graduate from high school and he’s really a wonderful young man and honestly somebody we are proud to have in our community. She ought to be able to come back at least to see him, or to see her family if they are in ill health,” Kennedy said.

Farfan wore a gray long-sleeved shirt at the hearing, her wavy black hair on her shoulders. She stole glances at the 15 family members, friends and co-workers in the gallery and stared at the skylights above the courtroom, lifting her cuffed hands to wipe her tears.

Miller, his gray goatee perfectly trimmed, listened intently to the arguments during the 40-minute hearing while spinning a pen in his fingers. He questioned the need for the technical arguments and said the solution is straightforward.

“We’re at a point where the government wants the petitioner to leave the United States, the petitioner has agreed to leave the United States, so I’m a little unclear why we’re expending all this time and resources on litigating how she leaves the United States,” Miller, a George W. Bush appointee, said.

Both Robinson Gaither and Kennedy agreed that immigration judges have the authority to hold a bond hearing for Farfan, but Kennedy said she wanted to give the immigration judge an order from Miller clarifying that right. Miller gave the order on the record.

“Both lawyers can represent to the immigration judge that I said at the hearing that I think the immigration judge has the authority to hold the bond hearing,” Miller said.

Buoyant after Monday’s hearing about Farfan’s chances of being released on bond, Kennedy said she will try to get a bond hearing set for Nov. 28.

Farfan’s sister Nancy said she doesn’t think Farfan will have trouble finding a job in Mexico because she has a lot of experience, she’s fluent in Spanish and has lots of family there.

“But I definitely think it’s something it will be hard to get used to. It’s not something she’ll just hop right into,” Nancy said.

Nancy blames the Trump administration for her sister’s ordeal.

“They’re not living it so they don’t put themselves in the situation. They don’t care about breaking families apart. It’s a crime she did so long ago and it wasn’t like she was trying to sell it. It was just a stupid simple mistake and apparently it’s catching up with her 10 years later,” she said.

But the bond Farfan has with her son will not be easily broken. Martinez, a junior in high school, said he’s trying to graduate early so he can go live with his mother in Mexico.

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