José Crespo-Cagnant, a Mexican immigrant deported after illegally crossing the border, is now back in the United States and on his way to becoming a permanent resident after winning a long legal battle in Miami federal court, according to his immigration lawyer.
Rebeca Sánchez-Roig, the attorney, recently won the case when U.S. District Judge Ursula Ungaro threw out an immigration agency order against Crespo-Cagnant that sought his expedited removal.
“The court finds defendant’s expedited removal order was invalid,” Ungaro wrote in her Nov. 13 opinion. “Accordingly it is ordered and adjudged that defendant’s motion to dismiss [the removal order] is granted.”
Crespo-Cagnant, 36, won the case because his attorney demonstrated that immigration officials had failed to consider her client’s plea not to be returned to Mexico for fear of persecution because he is gay.
Sign Up and Save
Get six months of free digital access to the Miami Herald
“What this means is that he is free out of any kind of criminal charges,” Sánchez-Roig said. “That hopefully the Border [Patrol] will vacate the expedited removal order that the judge ruled was unconstitutional and José will get an opportunity then to adjust his status.”
Crespo-Cagnant is not as sanguine as his lawyer: “This has been very hard, the harsh treatment, and I don’t know what follows. I’m just waiting. I have confidence in God, in Rebeca, but I don’t yet feel well. I’m still afraid.”
The case began as far back as 2002 when Crespo-Cagnant tried to enter the United States using a false identity, according to court records.
When U.S. officials found Crespo-Cagnant inadmissible, he voluntarily withdrew his application to enter the United States, the records show.
Two years later, in 2004, Crespo-Cagnant succeeded in obtaining a visitor visa valid for 10 years. In 2005, Crespo-Cagnant obtained a student visa that expired in 2008. He also applied for a Treaty NAFTA (TN) non-immigrant visa available to professionals from Mexico and Canada under provisions of the North American Free Trade Agreement (NAFTA).
Crespo-Cagnant then made a fateful decision. He left the United States, as required by the TN application procedure, and made his way back to Mexico City in time to appear for a visa interview at the U.S. Embassy there.
His application for the TN visa was rejected because his employment status did not meet requirements. Also, U.S. officials then revoked his visitor visa when they discovered his failure to report his prior attempt to enter the United States using a false identity.
Crespo-Cagnant was thus stuck in Mexico without a visa to return to the United States legally.
More than a month later, on Jan. 14, 2012, Crespo-Cagnant managed to return illegally to the United States by crossing the Rio Grande — like millions of other undocumented immigrants.
Crespo-Cagnant did not get too far. Soon after crossing the river, border agents detained Crespo-Cagnant near Hidalgo, a Texas town across from Reynosa, Mexico. He was put in expedited removal proceedings, which allow immigration authorities to file a removal order without a hearing or further review.
At the same time, however, during the proceeding an officer must interview the foreign national and determine that he or she has understood the charges and indicate so by signing and initialing each page of a sworn statement. The officer must also provide an interpreter if the foreign national cannot speak English. The officer must also ascertain if the foreign national asks for asylum or expresses a fear of persecution if returned to his home country.
If the foreign national asks for asylum or expresses fear of persecution, the officer must halt expedited removal proceedings and turn over the person to an asylum officer who then determines whether the case should be turned over to an immigration judge.
This is where the case turned in Crespo-Cagnant’s favor.
Though the border officer who interviewed the detainee, Brenton Reveruzzi, claimed that Crespo-Cagnant never expressed fear of persecution if returned to Mexico, Crespo-Cagnant had a different recollection, according to court documents.
“[Crespo-Cagnant] expressed to Reveruzzi and every other Border Patrol agent he encountered during his expedited removal proceeding that he had a well-founded fear to return to Mexico because he is homosexual and feared persecution,” the judge’s order shows.
Crespo-Cagnant also testified that Reverruzzi was not proficient in Spanish and never read back to him the sworn statement that he later initialed and signed. The judge believed Crespo-Cagnant.
Besides Crespo-Cagnant’s testimony that he did fear persecution if returned to Mexico, the judge found that the border agent ignored his explanation for coming back to the United States.
He also ignored information Crespo-Cagnant provided that he owned a home in Miami and that his partner of many years, a U.S. citizen, was ill and desperately needed his care, court records show. Crespo-Cagnant has sought to live in the United States since 2002 when he met his partner, to whom he is now married.
As a foreign national married to a U.S. citizen, Crespo-Cagnant was eligible to seek lawful permanent residence.
Soon after he was caught crossing the border in Texas in January 2012, Crespo-Cagnant was taken to California, then to the Mexican border near Tijuana and then escorted him across to Mexico.
But since Crespo-Cagnant had his ill partner and his home in Miami, he made his way back across the border into the United States again a few weeks later — and was picked up again by the Border Patrol.
Border officials reinstated the expedited removal order, despite pleas by Crespo-Cagnant not to send him back to Mexico where he feared persecution as a gay man.
A few weeks later, Crespo-Cagnant returned across the border into the United States. This time, however, he was not caught by border agents, and he made his way to Miami safely and rejoined his partner.
A year after returning home, in 2013, Crespo-Cagnant and his partner got married. Then they came to see Sánchez-Roig, the immigration attorney so she could help them file a relative petition to enable Crespo-Cagnant to seek residence.
His relative petition was approved, but later immigration officers arrested Crespo-Cagnant. He was indicted for reentering the country after deportation.
It was then that Sánchez-Roig and criminal defense attorney Hugo Rodríguez filed the motion to dismiss the expedited removal order.