This morning, undocumented journalist, filmmaker, and activist Jose Antonio Vargas was detained by the Department of Homeland Security at McAllen-Miller International Airport in Texas. He has been in McAllen Texas with a film crew interviewing children and families who have been detained at the border after escaping the drug cartel and gang violence in the Northern Triangle countries of Central America. Via Twitter (@joseiswriting), Vargas compared the Texas border to a militarized zone. He revealed that the city has checkpoints around a certain radius, including a checkpoint at the airport. Those who are undocumented are effectively trapped within a certain radius. The use of the words “militarized” and “checkpoints” reminds me of asylum clients from Myanmar (Burma) and the West Bank describing their countries, not the U.S.
Vargas’s high profile and public support protect him, unlike the average person. It is unknown how the events will play out today. Could he be kept and questioned for a few hours and released on his own recognizance? Will there be phone calls on his behalf from prominent people urging DHS to release him and reminding them of the public relations backlash it can face if it chooses to continue to detain him and prosecute him? No doubt he also has an excellent immigration attorney or team as well. I am hopeful that the government will exercise its discretion and that he will be released.
What normally happens when someone is detained by DHS? Vargas’s scenario is unusual as he has been detained traveling within the U.S. Interstate travel is a fundamental right under the constitution, and that is why there are no checkpoints between U.S. states, for example. People may be detained at the airport after travel abroad, or of course, after an arrest outside of the airport for various reasons. Usually by Immigration and Customs Enforcement, or “ICE” after being processed by Customs and Border Protection (CBP). At the airport, a person who is a lawful permanent resident can be detained because CBP sees that he or she has a conviction for an aggravated felony. Outside of the airport, a person could be at the right place at the wrong time and be detained for being undocumented, or be arrested after a traffic infraction and turned over to ICE.
The average person could face a number of scenarios. He could be released on his own recognizance. Perhaps he has a U.S. citizen spouse and will apply for permanent residence based on that marriage. He may be released after paying bond to ICE. ICE may or may not choose to issue a Notice to Appear (NTA) in the Immigration Court for removal proceedings. He may be detained and issued an NTA, and may then have a bond hearing before an immigration judge. The judge would want to determine that he is not a danger to the community, has ties to the community, is not a flight risk and will appear at all immigration court hearings. If the person is subject to mandatory detention for a particularly violent or serious crime, he may not be released on bond at all.
Once in the Immigration Court, the Respondent, as he will now be called, either himself or through an attorney, will have to inform the judge of the relief that may be available to him. Unlike criminal proceedings, immigration proceedings are under administrative law, and it is not required that the government provide him with an attorney. He will apply for some sort of defensive form of relief such as cancellation of removal, political asylum, a U visa, or adjustment of status. If there is no relief available, he may be able to take an order of voluntary departure rather than an order of removal. The problem with voluntary departure is, how does one return? Will this person face a 10-year bar to returning for being an overstay?
Another option is for the government to exercise prosecutorial discretion and terminate proceedings, which is what the government should do if Vargas’s case were to go that far, for whatever reason (and it shouldn’t, as there would be too much backlash and political pressure in his case). He is not high priority for deportation in the sense that he has no criminal convictions and is not a threat to national security. He has resided in the U.S. for a long time and since he was a minor. His services as a journalist and filmmaker are also important national contributions and are a significant equity. Negative factors are that he doesn’t have any immediate relief available and has previously claimed to be a U.S. citizen, which is unfortunately a huge transgression in U.S. immigration and nationality law for which punishment is severe (including the inability to apply for permanent residence if he ever marries a U.S. citizen in the future). However, the government would weigh the totality of the circumstances and make an individual determination.
For now, I am anxiously awaiting the news of Vargas’s release. Tonight, friends in New York City are holding a vigil for him at Union Square Park. Across the country, people are standing in solidarity with him, and with the refugee children of Central America whose plight he was documenting.
UPDATE: Mr. Vargas was released on his own recognizance and issued a Notice to Appear in immigration court.