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November 26, 2014

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Marooned in Mexico: Did the U.S. government deport an American citizen — three times?

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Steve Marcus

Francisco Diaz Jr. is recuperating from injuries in Mexicali, Baja California. He was born in Mexico but grew up in Las Vegas with a green card. He was beaten and robbed after he was deported to Mexicali.

Francisco Diaz in Mexicali

Francisco Diaz, center, looks over a photo album with family members in Mexicali, Mexico Saturday, Jan. 25, 2014. Diaz was born in Mexico but grew up in Las Vegas with a green card. Launch slideshow »

MEXICALI, Baja California — Francisco Diaz Jr. slowly thumbs through a binder of photos in an attempt to plaster over holes in his memory. He runs his finger along the side of the photo showing his swollen body lying limp in a hospital bed, a ventilator tube snaking down his throat.

The binder is going home with his family so they can add more pictures from his recovery. They came to this bustling border town to visit Junior, as everyone calls him, because he is trapped here — not by the damage done by the golf-club wielding thugs who attacked him, but because the U.S. government deported him, despite his claims to be a U.S. citizen.

The Diaz family has made regular trips from Las Vegas to see Junior ever since he was brutally beaten in November, left for dead with a fractured skull and a rearranged spine. Initially, doctors thought he was brain dead, before he awoke from a three-week coma.

Junior, 40, sits in his wheelchair outside an elderly care home, where he is the youngest resident by at least 30 years, wearing a navy blue Dallas Cowboys sweatshirt. Relinquishing the photos, he accepts hugs from his departing family.

Adela Espana, Junior’s mother, rubs moisturizing lotion on her son’s left arm, which lays motionless when it’s not shaking uncontrollably. With a furrow forged by guilt and worry fixed in her brow, she keeps a tissue bunched in one hand for dabbing her tears away.

His sister Jacqueline, who made the binder, removes an oversized UFC baseball cap from her big brother’s head, revealing a massive scar on the right side of his skull. She kisses his forehead, hoping the next time they are in Mexicali will be when they get to bring Junior back.

Junior, like his six siblings, was raised in Las Vegas, speaks English as his primary language and considers himself American. Unlike his six siblings, Junior is not officially a U.S. citizen.

According to immigration law, Junior should have been a U.S. citizen from the moment his mother, a U.S. citizen, gave birth to him in Mexico.

Instead, after several rounds of misguided legal advice and apparent misapplications of the law, he is barred from the United States.

Junior was most recently deported in March 2013, deposited in Mexicali, which received more deported Mexicans last year than any other city.

He admits that his current predicament is partly his own doing. More than once he has been convicted of drug possession and stealing cars. But after serving time in prison, Junior fell prey to the wickedly complicated laws that define U.S. citizenship.

The government was wrong, he says. “I am a U.S. citizen.”

For years, judges, government officials, even his own attorneys didn’t believe him. Until now.

•••

The Diazes blame themselves for allowing this tragedy to happen, but somewhere along the line, they say, someone in the government should have given them proper counsel.

The crux of Junior’s claim to citizenship lies with his mother, Adela, who was born in Texas in 1958.

Adela’s father died when she was 10, and her mother, a migrant farm worker in California, sent her to live with her aunt.

While living in a boarding house in Los Angeles, Adela, all of 13 at the time, met and fell in love with Francisco Diaz Sr., 10 years her elder. Adela got pregnant and was due in July 1973. The couple were on vacation in Mexicali for Mother’s Day when Junior was born two months prematurely.

Unknown to Adela at the time, U.S. law says a child born out of wedlock outside of the United States acquires the mother’s citizenship at birth, provided the mother has been in the U.S. a year prior to giving birth.

The new parents moved to Las Vegas, where Francisco Sr. had found work. Adela says they declared their desire for Junior to be a U.S. citizen, but were informed by Immigration and Naturalization Services (later split into Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services) that she should apply for permanent residency for both senior and junior instead.

Both received green cards, but Adela, who was just 14 years old when Junior was born, assumed her son was a U.S. citizen.

Adela and Francisco Sr. married in December 1973, going on to have six more children, all born in the United States.

The relationship was rocky. Francisco Sr. worked construction and traveled out of state for jobs. When he wasn’t working for the cement finishing company, he often stayed out drinking, Adela and Jacqueline said.

When Junior was 13 years old, Adela and Francisco Sr. divorced. Adela worked multiple jobs, primarily home and office cleaning, and relied on her own mother to care for the children.

“There wasn’t much supervision, and the separation was hard on the children,” Adela said. “Junior fell in the with the wrong crowd, and his father did not offer much help.”

By age 16, Junior had a juvenile record that included driving without a license and trespassing. Two years into Las Vegas High School, he got his girlfriend pregnant and dropped out.

His behavior only got worse. In 1995, when he was 22, Junior was charged with drug possession and possession of a stolen vehicle. Probation violations followed and he fell into a pattern of drug use and theft, according to court records.

In November 1998, while doing time at Nevada’s Southern Desert Correctional Center on convictions of cocaine possession and auto theft, Junior discovered there was an immigration hold against him, which barred him from certain rehabilitation programs. He wrote a letter to INS after learning of their plans to deport him.

He was fundamentally confused. “I have been a U.S. citizen for 25 years,” he argued.

He was told otherwise at a 1999 court hearing. An immigration judge, citing Junior’s status as a registered permanent resident with multiple felony convictions, ordered him deported. The judge would be the first of three over the next decade to deny his citizenship claim.

“When I was deported, I still felt like I was a citizen,” Junior said. “I just thought I didn’t do enough to show the court.”

By early 2002, he had returned to the United States. This time the federal government charged him with defying a deportation order, a felony.

His lawyer argued for leniency, saying that Diaz still believed he was a citizen and returned to the United States not simply for work, but because he was culturally American, had virtually no ties to Mexico, and wanted to rejoin his family.

While in custody, he took classes for the high school equivalency exam, taught English to other inmates and secured several letters describing him as a model inmate.

But the public defender agreed with the previous court’s decision that the law was not on Diaz’s side.

She pointed to a law saying a child born outside the United States to one U.S. citizen parent acquires citizenship if that parent lived in the country or its territories for 10 years — five of which were after age 14. Since Adela was only 14 when she gave birth, they rejected Junior’s claims — overlooking the special stipulation for children born out of wedlock.

The judge denied the request for leniency, and Junior was deported for the second time on March 7, 2003.

Again, Junior returned.

During the course of his staccato stays in Las Vegas, Junior worked for his father’s construction crew, his mother’s cleaning business and several restaurants.

He lived with Jacqueline and helped raise her children, but he also fell back into crime. In 2008, Junior was arrested for methamphetamine possession and possession of a stolen vehicle.

His new public defender revisited his immigration status, arguing that Junior could have derived citizenship through his mother if he had simply applied before his 18th birthday, while he was still a permanent resident. Had the government recognized the newborn’s citizenship at the time, rather than steering Adela toward a green card, there would be no issue today.

The judge rejected the notion that the government was responsible for the family’s error. Now that Junior was over 18, there was nothing that could be done, the court decided.

On March 15, 2013, Junior finished a three-year federal prison term and was deported to Mexico for the third time.

•••

The monthly reunions in Mexicali all start the same way, in Henderson after midnight. Six to eight members of the Diaz clan pile into Jacqueline’s white Ford Excursion.

Through the dark, quiet desert, the SUV dips and creeks over rolling freeway, past sand dunes and cactus-spotted terrain that gives way to endless acres of cow pasture.

Just as Mexicali is waking up on Saturday, the Diazes cross the border from Calexico, Calif., drive past the shelter for recently deported migrants, past factories and giant box-store shopping centers, and the traffic-light beggars — many also recently deported — until they turn left on the dirt road to Junior’s assisted living home.

After arriving in Mexicali last March, Junior says he is resigned to life across the border.

“I met guys in prison who spent $40,000 on their immigration cases and they still lost,” he said.

Adela was wiring him $300 a month, and Junior was living in the garage of a boarding house, renting a cold square of concrete to pile his belongings and lay his head.

In the fall, after a few months in Mexicali, Junior called Jacqueline after midnight.

“He was crying, and he told me: ‘A lot of (stuff) is going down here. I don’t want to be here anymore. I want to be home. I miss my family.’ ”

Locals were harassing him. A group of guys had assaulted him, yelling “pocho,” a derogatory term for an Americanized Mexican.

On Nov. 20, after picking up a wire transfer from his mother, Junior turned down a small street and was attacked from behind. A golf club came down on him repeatedly, obliterating pieces of his skull, jolting three vertebrae out of alignment and dislocating his elbow. Doctors say he had a stroke before going into a coma.

Children found him lying in puddles of his own blood.

Diaz doesn’t recall the attack or being taken to the hospital, but suspects the attackers were the same people who harassed him, now after his cash.

Tensions between migrants and locals can run high in Mexicali. Thousands of deported Mexicans and migrants from Central America on their way north come through the border town every year. Last year, according to government figures, 47,000 Mexicans were deported to Mexicali, more than to anywhere else.

Sergio Tamai runs the Hotel de Migrante just blocks from the border where the deportees, many of whom have never been to Mexicali, are dropped off on buses in the middle of the night with no food or transportation to their actual hometowns. Gangs prey on the new arrivals, kidnapping and holding them for ransom from family members in the United States.

“There is a huge number of people coming in, and the services are strained,” Tamai said. “They can find temporary work like cleaning the streets, but there isn’t much for them. People resent the migrants and do not trust them. Some arrive speaking English, and some residents think they bring nothing but problems to the city.”

After Junior was in a coma for two weeks, doctors told the family that he would not recover; the CAT scans showed no brain activity. They begged for more time, and on day 22, Dec. 11, Junior woke up.

His body was swollen from the beating, he was completely paralyzed on his left side, could barely talk and had memory problems, but he was awake.

Junior is improving, but will probably need more brain surgery. He still cannot walk, and needs assistance to get dressed or go to the bathroom.

The Diaz family skipped Thanksgiving and Christmas celebrations last year, pouring all of their resources, money and time into getting Junior back to the United States.

Jacqueline says she has made it clear to Junior that there will be no more tolerance for his old lawbreaking habits and friends.

“I do see some positives coming out of this. If not, I wouldn’t be wasting my time trying to get him back over here,” Jacqueline said. “I told him: ‘This is it. You’re the big brother and you have to set an example for all of our nieces and nephews.’ ”

For now, he is starting with his daughter, Ruby, whom he has not seen in 20 years. She is the subject of his first tattoo, now one of many running up and down his arms. They reconnected through letters before this visit, and Junior bonds with Ruby over her own ink, and their mutual love of drawing and painting.

“It’s hard to have a relationship with him here and we are trying to reconnect,” Ruby, 23, said. “I think the immigration system contributed to taking away my time with my dad.”

Junior and his doctors hope he can return to Las Vegas to be close to family and receive more advanced medical care. For now, he focuses on his rehabilitation, and piecing together the attack and its aftermath.

The back of his head, sprouting with stubble after being shaved clean for surgery, is a tactile reminder. A virtual lunar landscape, a series of silver dollar-sized craters dot the right side and back of his skull. A raised scar zigzags from just above his right ear up to his forehead.

Junior has lost at least 60 pounds since the attack, and gets tired easily. While lying in his bed on a Sunday afternoon, he considered his situation.

“In federal prison there were a lot more programs, and it helped me. I got into my art, and I thought about priorities,” he said, crying. “I want to be a father, and I think with my family’s support, I’ll be in a good environment and turn things around. Sometimes it takes stuff like this to realize who your friends are and what’s important in life.”

•••

It wasn’t until Junior almost died that someone finally backed what he had always felt instinctively — he is a U.S. citizen.

Las Vegas immigration attorney Rex Velasquez, who knew Jacqueline through a previous employer, took Junior’s case pro bono after the attack.

“A case like this is one of those things that gets my adrenaline pumping, because everyone else has missed it, and I can’t believe that,” Velasquez said. “It’s just a shame, because it never should’ve happened in the first place.”

Velasquez concluded that the judges, INS officials and public defenders had all been looking at the wrong part of the law, citizenship granted after birth, and it was clear Junior was a U.S. citizen at birth.

Junior never needed the green card that created the illusion that he lacked citizenship.

Officials from both U.S. Citizenship and Immigration Services and ICE say that because Junior has been deported, the case is in the hands of the State Department.

“The burden of proof is always on the applicant,” a USCIS spokeswoman said.

Velasquez, a former federal immigration prosecutor, says immigration officers and judges are charged with knowing all of the laws, and have a responsibility to see “justice is done.”

“Working in the government, we were deathly afraid of claims of U.S. citizenship” Velasquez said. “Because, if it turns out the government was participating in the deportation of a U.S. citizen, and we knew it, or should’ve known better, not only was the government liable, but we were individually liable.

“I think we all understand, if somebody makes a mistake, of course they should be punished,” Velasquez said of Junior’s criminal history. “He has gone through the criminal system several times, and has been punished for his crimes. The thing is, he never should have suffered the immigration punishment on top of everything else. That’s where I think the really big crime has taken place — that the U.S. government deported a citizen when it really shouldn’t have.”

Now, a fresh start and improved medical care are all dependent on the passport application, complete with his lawyer’s argument, that Junior filed at the U.S. Consulate in Tijuana this past Friday. The passport would signify the State Department’s acknowledgment of his citizenship.

•••

The return trip from Mexicali is a mostly quiet, late-night drive as the Diaz family internalizes the latest developments and wonders if and when Junior will come home.

Adela ponders the guilt she feels as the car creeps toward the border gates, a 20-foot tall metal fence running parallel to the cars, U.S. border patrol agents watching from the other side. In between the queuing cars, vendors sell ice cream, sodas, churros, blankets, hats and anything else that border crossers disposing of their last pesos may want. Friends and family, separated by the fence, gather at certain spots to chat through the gaps in the posts.

“I was young and we made mistakes. I suppose I was ignorant,” Adela says. “We should have fixed things much sooner, but I had my own health problems and it did not get done when it would’ve been easier. All we can do is try and make it right now. I just want this nightmare to go away, and I think it is barely the beginning.”

As the car approaches the border station, in a dark corner where the fence meets the building, an older man is helping a younger one climb a rope ladder over the fence. The young man slides down on the U.S. side, and runs. With a flick of the wrist, the older man takes down the rope and walks off on the Mexican side.

Adela pulls out a fist full of change from her purse and hands it out the window to the last beggar before the border crossing, who stands on crutches, missing his right leg.

“I always give him whatever change I have before I leave, every time,” she says.

“You gave him a lot?” her granddaughter asks.

“Maybe it will be enough for him to go home,” Adela replies.

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