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Deported Father 

Deported six months ago, Cesar Leyva is not giving up the fight to return to Tucson and his son

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Maria Inés Taracena

click to enlarge Cesar and his 6-year-old son. - COURTESY OF CESAR LEYVA
  • Courtesy of Cesar Leyva
  • Cesar and his 6-year-old son.

Cesar Leyva is holding on to a very thin thread of hope that he'll be able to return to the United States to be close to his 6-year-old son. He hasn't seen his boy in six months.

In April, Immigration and Customs Enforcement officials apprehended Leyva in Tucson at approximately 3 p.m. By 6 p.m., he was turned over to Mexican authorities in Nogales, Sonora. He hadn't been to his native country in more than a decade.

"Imagine heading to the bank to cash a check, I get pulled over, three hours later I am in Mexico," he says in Spanish, sitting at a coffee shop in Sonoyta, Sonora, across the border from Lukeville, Arizona, which is as close as he can get to his past life at the moment. "I hadn't been in Mexico in 13 years. It was a terrible shock."

He stayed in Nogales for a week, while his brothers dropped off a few belongings, before heading to Puerto Peñasco. Leyva says he had never visited the small beach town, but a cousin he is close with lived there, so it seemed like a good choice for a temporary home.

Half a year later, it still doesn't feel real. He hasn't explored his new surroundings much, or gotten to know any of the locals, because he's so determined to come back to the life he built since immigrating to the U.S. in 2002.

The 37-year-old was born in Naucalpan de Juárez, a town just outside Mexico City. He ended up living in Mexico City through his teen years. His parents, who were extremely poor, sent Leyva to the country's capital to live with his aunt, who offered to pay for his schooling.

That only worked out for about a year, so by age 17, Leyva was out on his own, working at a print business sweeping the floors at night to later become a sales representative for the company. At 19, he moved to Cancun, and four years later, in October 2002, he migrated here with a 10-year tourist visa. His two younger siblings and older brother (who are all by now legal residents of the U.S.) were living in the Old Pueblo already. It was the first time ever the three brothers and sister were together.

Within a year of living here, Leyva learned English—mostly thanks to newspapers, the radio and TV—and moved out from simultaneously working three jobs to starting a small landscaping and moving business that eventually grew to home remodeling. Despite being here undocumented, before being deported, Leyva was truly making it.

He felt his economic success was a sign that he was ready to become a father. Six years ago, he and his now ex-wife had a son. Leyva's father wasn't in the picture much, and he doesn't want the same for his son. From Puerto Peñasco, Leyva continues to provide for his kid, working minor jobs here and there. He rented out the home he owns in Tucson and sold his truck. Two workers of his continue to run Leyva's business.

He can't think about anything but returning to the U.S. to be with his son.

"I talk to him on the phone every single day," Leyva says, about his boy, adding that his ex-wife is concerned for her and their son's safety driving to Mexico, so they haven't visited. "It hurts. My son and I are very close, and I feel he's getting used to my absence. I don't want to be just a memory for him. All I want to do is work and provide for him."

Citing issues with his legal representation in Tucson, Leyva hopes ICE will consider reopening his case and allow him to fight it within the U.S. Another positive he feels he has on his side is the long American ancestry that runs through his veins. No matter what the outcome, Leyva just wants another chance.

Legal Woes

In 2003, Leyva flew from Phoenix to Mexico City to visit his father. It was the last time he saw his father before he passed away in 2011. His plan was to return to Tucson by car and cross—using the tourist visa—through the Nogales Port of Entry.

At Nogales, immigration officials didn't let him back in because the tourist visa didn't allow him to travel outside the U.S. from a city too far from the border. If he hadn't left the country from Phoenix, he wouldn't have had an issue coming back.

He tried reentering twice after that, but by the second time, a friend suggested Leyva say he was a U.S. citizen. He also gave a fake name, "in the hope that I would be allowed into the country," Leyva says in a statement he submitted to immigration court. "I quickly admitted that I was not a U.S. citizen and they returned me to Mexico. I fully regret having lied. I now know that it was wrong and I wish I had never lied."

click to enlarge Cesar in Sonoyta, Sonora, near the Lukeville, Arizona border—as close as he can get to the United States. - MARIA INÉS TARACENA
  • Maria Inés Taracena
  • Cesar in Sonoyta, Sonora, near the Lukeville, Arizona border—as close as he can get to the United States.

A few days later, he crossed through the desert near the Sonoyta-Lukeville borderlands.

The following years were equally tumultuous. In 2004 and 2005, Leyva was arrested for driving under the influence twice. He plead guilty to both charges, completed probation and paid all fines. In April and May of this year, a criminal court judge "was satisfied that I completed the court's requirements and set aside both of my DUI convictions," Leyva's statement says. No immigration troubles came from that, though, and Leyva's record has remained clean.

A minor traffic infraction in 2006 (his U.S.-citizen cousin was driving the car, but Leyva says police officers still asked for his ID), revealed Leyva's immigration status. The officers contacted Border Patrol. He was detained, and voluntarily went back to Mexico. Again, he crossed back into the U.S. through the Sonoyta-Lukeville desert. The following year, Leyva had another traffic incident—the tire in a truck trailer he was towing came off and the metal axis caused a fire on the freeway. After the mess, he was apprehended. This time he refused to sign another voluntary departure, so he was sent to the Eloy Detention Center, where he was released on bond after three weeks.

Shortly after, he met Tucson-based attorney Patricia Mejia, who represented Leyva for about eight years. "I focused on working and I focused on my family. I entrusted my legal fate in her. I always trusted her. She'd say, 'Fill out this form, bring me this money, and everything will be fine.' And I would do it," he says.

The Downward Spiral

Recently, Leyva and his current lawyers in San Diego, Calif., Ginger Jacobs and Maria Chavez, filed a near-200-page complaint against Mejia with the State Bar of Arizona, and another with the U.S. Immigration Court, where they accuse Mejia of being unethical, mishandling Leyva's case to the point that he was deported, and several other code of conduct violations.

They hope the complaints against Mejia's alleged incompetent representation will help re-open Leyva's case. Leyva feels he didn't get a fair fight.

Both the Arizona Bar and the immigration court have responded to the trio's complaints against Mejia, and all are currently being reviewed.

Essentially, there are two parts to his case—the first, is the legal strategy to reopen the case before the Board of Immigration Appeals, because of the alleged mistakes by his previous attorney. The second is pleading ICE to re-open the case, and let Leyva return while this second chance plays out in the legal system.

In terms of Mejia, according to Leyva's new attorneys, the most detrimental issues are the following allegations: filing Leyva's deportation petition for review with the 9th Circuit Court of Appeals late; forging his signature on the petition for review; filing said review in a way it looked like Leyva was representing himself; not advising Leyva that if he filed a petition for review with the 9th Circuit, he would "forfeit his voluntary departure and would receive a removal order if the 9th Circuit denied the petition," the complaint says.

Back in 2012, the immigration judge in Leyva's removal proceedings ruled that the process had gone on too long. Mejia unsuccessfully appealed, and told Leyva in March 2014 that he should file for a petition for review with the 9th Circuit—as sort of the final straw.

"Because Mr. Leyva was unaware of the consequences and he wanted to remain in the United States, he proceeded with the petition for review. This petition was due within 30 days of the (Board of Immigration Appeals') denial on April 25, 2014. Late in the day on April 24, 2014, Mejia emailed Mr. Leyva asking to verify his address and explaining that she received the appeal dismissal from the BIA ... She reassured Mr. Leyva not to worry," the complaint says.

Mejia ended up mailing the petition for review the day of the deadline, April 25, "After which receipt of a petition for review would be untimely, therefore, jurisdictionally barred from consideration." On top of it all, Mejia gave Leyva the wrong amount for the money order that was supposed to be filed along with the petition for review, Leyva says.

Because this happened, he didn't have the option of voluntarily leaving anymore. Instead, an order for removal emerged.

The day he was taken into custody this year, ICE said he was a fugitive. Turns out, after the petition for review failed, a letter telling him when and where to turn himself in was supposed to arrive. It never did, he says. Mejia confirms that she didn't get an order either, and neither did the person who paid for Leyva's bond to get him out of Eloy. "If I had received a letter or other instruction to turn myself into ICE officials, I would have complied," Leyva says, adding he always obeyed the court's requests.

Even though the previous bad news seemed like a dead end, Chavez says Mejia could have filed for a request for stay of removal with ICE, which, if granted, could have given him another year and a chance to possibly renew that permission on an annual basis.

Among the pile of accusations, there are also claims that Mejia mismanaged the thousands of dollars Leyva paid for her services. In the complaint filed to the Arizona Bar, there are pages and pages of emails, account statements, and other evidence submitted. Leyva says that more wrongdoings took place throughout those eight years, but that he chose to focus on what he is able to prove.

"Mr. Leyva did not discover Mejia's late-filing error until July 3, 2015, when our office reviewed his file and informed him of the mistake," Chavez says in the complaint. "Her actions are in violation of the Arizona Rules of Professional Conduct and because of her, Mr. Leyva's life has been turned upside down."

Chavez also says Mejia did wrong in not formally requesting ICE for prosecutorial discretion (in 2011 and 2014, the Department of Homeland Security, and other agencies under its umbrella, issued memoranda that dictated who is a priority for removal).

Leyva and Chavez say Mejia never discussed the possibility of requesting the relief. But, in an interview with the Weekly, Mejia says she believed the two DUIs from 10 years ago, and lying about being a U.S. citizen, were the "kiss of death" in Leyva's case, and that he wouldn't have qualified for prosecutorial discretion. According to ICE, the agency "exercises prosecutorial discretion ... considering the totality of an individual's case, including but not limited to criminal history, immigration history, family and community ties, humanitarian issues and whether he or she is likely to receive temporary or permanent status or other relief from removal."

Chavez says that the convictions that happened a decade ago, and all other mistakes Leyva could have made, "is not a bar to requesting prosecutorial discretion or a stay of removal with ICE—two remedies (Mejia) denied Mr. Leyva due to her incompetence."

Mejia, who is already on probation with the State Bar of Arizona over a separate case, assures she did everything she could—that everything else was out of her control.

In 2007, she filed for a "claim of derivative citizenship," because of Leyva's American ancestry. His paternal grandmother, Carmen Watson, was born and raised in Nogales, Arizona. Leyva's father could have requested the U.S. citizenship, even though he wasn't born here, but he never lived in the U.S. Any other options down that route died after Leyva's father passed away in 2011.

Mejia also hoped to get him a U-visa, which is granted to immigrants who are victims of certain crimes on U.S. soil. Four years ago, Leyva's ex-wife and son were home when a burglary happened, but because Leyva wasn't present, he didn't qualify for the special visa. Mejia says all doors closed in Leyva's face. Mejia says she wishes that hadn't been the case.

In terms of ICE allowing Leyva back into the country, the agency has done so in the past, but under different circumstances, such as the agency realizing they messed up on a person's removal documents for example.

ICE could facilitate a person's return to the U.S. if an immigration court's decision in a person's case results in "a restoration of the individual's lawful permanent resident status," or if the person's presence is absolutely necessary for "continued administrative removal proceedings, including instances when the individual's case is remanded back to the immigration judge. However, ICE will not facilitate the individual's return to the United States if his or her presence is not necessary to resolve the administrative proceedings," says an ICE statement sent to the Weekly.

"Individuals who petition the circuit courts of appeals for review of their administrative removal orders may continue to litigate their petitions even after their removal from the United States. Absent a court-ordered stay of removal, ICE may lawfully remove individuals while their petitions for review are pending," the statement says.

Chavez says it will be difficult, but they are willing to fight and move forward.

The Now

Throughout this odyssey, Leyva wonders about what truly makes a person an American.

He has family members who were born in the U.S.—many fought in the Civil War; his paternal great-grandfather, who was born in Pennsylvania, served in World War I and was a chemist for the Manhattan Project during World War II. According to research by his current attorneys, his ties to the U.S. date as far back as the 1700s. As of now, he has three siblings who are legal residents, a handful of nephews who are U.S. citizens, and his son who is also a citizen.

Yet, because he was born on the "wrong" side of the border, he doesn't have a piece of paper that labels him an American, much less have the legal permission to be here.

"My ancestors fought for the right of their children and grandchildren to live in the United States in peace and freedom," Leyva says in a statement. "I can't imagine that my great-grandfather would ever have thought, as he was fighting for the U.S. in World War I, that his own great-grandson would not be born a U.S. citizen and would be deported from the U.S. My ancestors helped build the United States."

As he finishes his traditional Sonoran breakfast and gets ready to drive back to Puerto Peñasco—his new home that doesn't feel like home—Leyva realizes that he will soon be all alone. His only family member there is moving to Cancun. He'll have to rely on his siblings visiting when they can, and try to keep the hope alive that his ex-wife and boy will drive down to visit one day.

If things don't go as expected, and his son is not able to visit until he is 18, Leyva plans to keep every piece of paper that proves he did what he could to come back to his child.

"I want the opportunity to get a just and fair representation, an efficient representation. The mess I am in right now is because I want my day in court. I just want to go back ... work and reunite with my son," he says.

click to enlarge MARIA INÉS TARACENA
  • Maria Inés Taracena

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