Tough Choices: Immigration laws prove tricky for detainees, officials

When Marco Mancillas was picked up by border patrol for a traffic violation earlier this year he was presented with two options  - he could request a court hearing, which he was told would land him in a Pennsylvania detention facility, or he could voluntarily return to Mexico.

At least in Mexico he would be free and near family, he reasoned.

Intimidated and confused the 17-year-old Mancillas agreed to waive his right to a hearing.

"They could have me on the next bus to Matamoros," Mancillas recalled agents telling him. "I said that was fine."

Mancillas had been living in the country illegally for more than a decade as the son of a legal permanent resident. 

His application for residency was denied in 2006 after failing to meet the federal poverty guidelines, but in court he could have a judge review his petition again.

With the clock ticking Mancillas' father secured the services of an attorney who quickly convinced agents not to return the boy to Mexico.

"If people don't know what their choices are they could lose an opportunity of being here legally," said Jaime Diez, Mancillas' immigration attorney. "That's a pretty big loss when it's your son."

There are a number of options available to people that are not fully explained because immigration laws are so complicated, Diez continued.

"Border Patrol are given a very difficult job," the attorney said. "They are asked to enforce laws that are even difficult to understand by the very best attorneys."

Others are not as lucky as Mancillas.

Hasty Decisions

Under pressure to make a quick decision and unaware of the consequences, thousands of immigrants agree to voluntarily return to Mexico every year.

Through the first 11 months of fiscal year 2008, 43,361 people consented to voluntary return in the Rio Grande Valley sector, which stretches from Falcon Dam to Brownsville, up from 40,851 in fiscal year 2007.

In custody, Customs and Border Patrol agents are supposed to advise people of their rights, according to Dan Doty, border patrol spokesman.

The I-826 form called a notice of rights and disposition is explained to everybody in English and Spanish if necessary, Doty added, though few ask to see a judge and even fewer can afford to consult a lawyer.

"We tell them they can request a hearing with an immigration judge or go back to Mexico without punishment," Doty said. "Generally, a voluntary return will not damage a case."

Lasting Effect

On the surface it appears relatively painless, but voluntary return is potentially more damaging than at first blush.

Immigrant advocates and attorneys argue that the speedy removal of so many people raises serious concerns that immigrants are pressured to forfeit their right to due process.

"It's a huge problem," said Iliana Holguin, executive director of the Diocesan Migrant and Refugee Services in El Paso. "It can potentially have a huge impact on eligibility for immigration benefits."

As a practical matter, Border Patrol couldn't keep everybody it takes into custody in a detention center.

After all, the U.S. Department of Homeland Security houses 31,000 immigrant detainees in a patchwork of jails across the country, 7,900 of them in South Texas.

When immigrants willingly return they ease the government's burden, Holguin said.

"Border Patrol agents aren't going to tell people if they are eligible for relief," she said. "We hear stories that Border Patrol tells people they are going to spend months and months in detention. And that a lawyer will just take their money, so why would you want to be detained?"

Don't expect the dialogue between agents and immigrants to change, Holguin said.

Holguin's organization offers community outreach programs on, among others topics, the pitfalls of waiving the right to a hearing.

"It's really a community education issue," she said. "It's always better to know where you stand."

Voluntary Return

Voluntary return has been around since the early 1950s. For years agents wrote voluntary return orders in the field.

But with the government's stepped up efforts to drive out immigrants, more than 285,000 deported last year alone, removal is inevitable for many, even preferable in some cases to a lengthy and ultimately futile detention.

Still, thousands have a solid legal argument for cancellation, which agreeing to return voluntarily can effectively erase.

"Some people have the unfortunate idea they can come right back," said Chuck Roth, director of litigation for National Immigration Justice Center in Illinois. "Part of the problem is people just don't know what to choose."

The situation could be improved with a few simple questions to determine if a person is eligible for relief, Roth said.

For example, after 10 years in the country illegally an immigrant becomes eligible to apply for cancellation, however, the slate is wiped clean when he waives his right to a judge as though he'd never been here before.

"Maybe there should be some punishment, but really what you want is to push the person to become legal, not make them more illegal," Roth said.

Digging themselves into a deeper hole many will risk illegal entry, Roth added.

Family Ties

Many are forced to leave behind family members who are legal permanent residents or citizens, like Celia Sanchez.

In 2006, while in the company of a friend who filed fraudulent paperwork with a bank, Sanchez, who asked that her last name be changed, was taken by police to Border Patrol. She had entered the country legally 11 years before.

When her son was born a year later with Down Syndrome, Sanchez decided her son would receive better medical attention in the United States.

She pleaded with agents that her three small children, all U.S. citizens, relied on her, but they refused, she said.

"They never even told me I had the right option of seeing a judge," Sanchez said. "They didn't tell me anything. They just laughed and said you're surely going back to Mexico."

At 5:30 in the morning they dropped her off in downtown Matamoros with 10 Mexican pesos. Five days later she crowded into a car headed for Brownsville.

At the border, customs agents waved her car through.

Two years ago Sanchez and her son, who frequently requires medical attention, boarded a bus for Corpus Christi. At a Border Patrol checkpoint she was asked to get off the bus while they checked her status.

Agents discovered that Sanchez had entered illegally, this time, however, she was given a court date and a glimmer of hope.

If she is loses her case she will obey the order return to Mexico with her children, she says.

"But, I want to fight to find out what might happen," she said.

As for the Mancillas family, Antonio Sr. considers what happened to his son that night and his usually pleasant demeanor turns sour.

"I'm convinced," he said, "without a lawyer my son would be other there."

anelsen@brownsvilleherald.com