A federal immigration judge told a Teton County man in October that he had 24 hours to leave the country, causing a unique dilemma in 9th District Court — and in the lives of several valley residents.
When Miguel Cortes Hernandez, the defendant in a felony criminal case, was ordered by an immigration judge to voluntarily depart — an option for undocumented immigrants to leave and avoid forced deportation — he obeyed federal law. But because he returned to Mexico he is now in violation of a Wyoming district judge’s order: failing to appear on a count of second-degree abuse of a minor.
It’s a case unlike any other in Teton County. But attorneys don’t expect it will be the last.
Under the Trump administration more defendants are being deported before they are convicted.
“It’s an interesting issue,” 9th District Judge Timothy Day said during Hernandez’s Feb. 6 pretrial conference, just before the trial was vacated. “It’s not ripe for any decision by me right now. We’ve reset this matter three times.”
With friends and family members in the courtroom, Hernandez appeared by speakerphone, answering the judge in fluent English with “yes, your honor” when called upon.
Hernandez has appeared by phone three times during court hearings since he left the country Oct. 18.
“Mr. Cortes Hernandez has every desire to be here,” his attorney Elisabeth Trefonas said in court. “The government can’t have it both ways.”
Trefonas argued that the prosecutor assigned to the case could have prevented the Catch-22 had he told Immigration and Customs Enforcement not to deport the defendant before the Teton County case was resolved.
But Teton County Deputy Prosecutor Becket Hinckley said he has never worked on a case where that was an issue.
“I couldn’t find any cases in Wyoming to give me any direction on what to do,” Hinckley told the court. “I found out he [voluntarily departed] through a Facebook post the night before. It caught us all by surprise.”
How it unfolded
The timeline of events before Hernandez agreed to the voluntary departure is complicated.
The now 21-year-old was brought to Jackson when he was 8 years old by his mother, later earning Deferred Action for Childhood Arrivals, or DACA status. He attended local schools, graduated from Summit High School, was an organizer of a 2017 protest march in support of DACA and co-founded the nonprofit Community Soccer Camp, which aims to connect Jackson Hole youth of all backgrounds to soccer and each other.
But Hernandez was arrested Oct. 17, 2016, after an hour of police questioning for having sex with his 15-year-old girlfriend, documents state. The alleged crime was reported to a school counselor, who is required to report it to law enforcement. Hernandez said the sex was consensual, according to documents, but according to Wyoming law because of their age difference she couldn’t legally consent.
Wyoming’s statute on second-degree sexual abuse of a minor states that if a victim is 13 to 15 years old, a partner cannot be more than four years older. Hernandez was 19 and, according to the probable cause affidavit, approximately four years, two months and nine days older than the victim.
While Hernandez had held DACA status since 2014, his documentation expired Sept. 21, 2016, less than a month before the alleged abuse occurred. In court documents Hernandez says he did not reapply right away because of the cost, about $500, which he was trying to save.
Hernandez, who declined to comment for this story because of the pending charge, was arraigned Oct. 31, 2016, in Teton County District Court on one count of second-degree sexual abuse of a minor.
But the state of Wyoming dismissed the case three days later to let the defendant “deal with immigration issues,” according to Hinckley.
Hinckley said he thought that was important.
“The defendant’s immigration status has played a large role in this,” he later said at a preliminary hearing in Teton County Circuit Court.
When the case was refiled on Nov. 23, 2016, in Teton County Circuit Court, Hernandez had still not reapplied for DACA status. Less than two weeks later, on Dec. 5, Hernandez filed his application.
Changing immigration policy
Under the Obama administration, “open criminal cases without a conviction would not have triggered an ICE detention or a removal proceeding,” according to court documents. Though Hernandez was undocumented at the time of his arrest it was unlikely he would have been deported with a pending felony.
But on Jan. 25, 2017, five days after he was inaugurated, President Donald Trump issued two executive orders affecting the fate of undocumented immigrants and victims of crimes allegedly committed by them. The orders especially affect those with open and unresolved criminal cases.
The order, Border Security and Immigration Enforcement Improvements, advises officials to “detain individuals apprehended on suspicion of violation of federal or state law.”
Trump’s order, Enhancing Public Safety in the Interior of the United States, says to detain “aliens who: have been charged with any criminal offense, where such charge has not been resolved.”
It was a big change from the Obama administration, when an apprehension by ICE agents would normally happen only after a conviction.
According to court documents, ICE enforcement agents from the Casper field office began detaining undocumented individuals in accordance with the orders shortly thereafter.
“ICE generally places detainers on deportable aliens when they are arrested by local law enforcement on criminal charges,” Carl Rusnok, director of communications with ICE’s Central Region, said in an email to the News&Guide. “If they are released by local law enforcement for any reason, they would be transferred to ICE custody. If the local law enforcement agency wants these aliens returned to its custody, these offices can file a writ with ICE.”
Hernandez and his attorney Trefonas saw an immigration judge in June 2017, and Hernandez was granted 120 days before he would have to voluntarily “self depart,” his best legal option in Trefonas’ opinion.
“Really, it’s just a graceful exit,” Trefonas told the News&Guide.
But to complicate things Hernandez’s DACA status was renewed by the United States Citizenship and Immigration Services in July 2017, changing everything.
It meant ICE couldn’t legally execute a deportation order for two years and Hernandez would have until 2019 to get his pending charge resolved.
If he opted to leave the country under his DACA status it would be revoked. DACA recipients lose their status if they leave the country.
“He gets his DACA and decides he doesn’t want to follow the voluntary departure so that he can [someday] get a green card,” Trefonas said. “He didn’t want to go to Mexico anyway.”
But then ICE launched an investigation of Hernandez, Trefonas said.
“With an open criminal case there are grounds to say no to DACA,” she said.
Because of ICE’s investigation, Trefonas said, United States Citizenship and Immigration Services terminated Hernandez’s newly obtained DACA status on Oct. 17, 2017 — the day before his original voluntary departure date.
“So then Miguel has the choice to stay and try and fight the criminal case or hot-tail it out of the country within 24 hours,” Trefonas said. “So he left.”
Because Hernandez no longer held a deferment, if he overstayed the self departure, even by one day, it would turn into a deportation order, which comes with severe consequences.
According to court documents filed by Trefonas, had Hernandez chosen to stay in the U.S. to fight his case the decision “would have left him with no ability to adjust his status in the future, having overstayed a voluntary departation order, and would have prevented him from obtaining any visa benefits for 10 years.”
Hernandez caught a one-way flight out of Denver.
“Miguel, by my estimation, did a really brave thing by leaving within 24 hours,” Trefonas said. “He didn’t pack any stuff.”
The state of Wyoming never asked for Hernandez to be returned to Teton County jurisdiction.
“I’ve never had something like this happen before,” Hinckley told the News&Guide.
Scared and 2,000 miles away
Sandy Hessler talked to Hernandez at 9 a.m. Oct. 17. He was planning to spend the day looking for apartments in Denver, one he would share with her son, Jimmy, his best friend. Hernandez has biological family in Jackson, but he has been close with the Hessler family since he was 13 and lived with them on and off for five years.
Around the same time Hessler talked to Hernandez, Trefonas opened her mail to find the DACA termination notice.
“I looked at the letter for about 10 minutes hoping I wasn’t reading what I was reading,” Trefonas said.
She called Hessler immediately.
“I’ve been through a lot of hard stuff in my life,” Hessler said, “but the phone call I had to make [to Miguel] a half-hour after I had just talked to him, and he was in such good spirits, and to explain the letter that had come in was hard.”
Hessler blames Hernandez’s original DACA expiration on his age and naivete. He didn’t want to ask her for the money, but didn’t realize the consequences, she said.
“He didn’t really understand the whole political implications of even letting it expire,” she said. “He was a young 19-year-old.”
Hernandez packed a single suitcase, leaving behind most of his belongings in his room at Hessler’s Teton County home. He appeared at the American embassy in Mexico City less than 24 hours later.
“I think he was a little in shock,” Hessler said. “He went through the motions; he was there.”
But Hernandez had not been to Mexico and his hometown of Leon in over a decade. His grandmother is there — she helped raise him before he came to America — and he’s made new friends, Hessler said. It’s been an emotional reunion.
“He sees the poverty, the issues and he thinks ‘Wow, maybe I have more to give here [in Mexico],’” she said. “Yet his [family] is here.”
His transition hasn’t been easy.
“It’s not a safety net at all,” she said. “He’s been robbed twice. I talk to him on Skype and hear him say, ‘I’m scared,’ and he’s 2,000 miles away.”
Without being too specific because of the pending case, Hessler said she believes Hernandez’s case has been mishandled from the beginning.
“There are different steps in there that I can guarantee if it had been one of my Caucasian sons we’d never be in this situation,” she said.
She believes the executive orders regarding immigration and deportation create more chances for discrimination against undocumented people.
“There’s an opportunity for bias, an opportunity for discrimination, the opportunity for racism is huge,” she said. “All I have to do is decide to charge you and then I can get rid of you.”
Hernandez had no previous criminal record, Hessler said, making his departure premature.
No justice for anyone
All individuals are presumed innocent until proven guilty, according to the Sixth Amendment of the U.S. Constitution.
“He had not been found guilty,” she said. “The State Department isn’t following our Constitution, which is why people are being put in this incredible Catch-22. The right hand and the left hand clearly don’t even know what they’re doing.”
When defendants are deported or voluntarily depart during a pending criminal case, victims are left without answers, too.
The victim in the Hernandez case is a juvenile and unidentified in court documents due to the nature of the alleged crime. So the effect of Hernandez’s deportation on the victim is unknown.
Tracey Trefren, victim services coordinator for Teton County Victim Services, said victims of crimes generally have mixed emotions when it comes to defendants in their cases being deported or self-departing while it’s pending in court voluntarily.
“Some victims of crime find peace and solace that the defendant is no longer in the community,” she said. “They no longer worry about running into them on the street.”
But others are disheartened by the deportation and lack of due process.
“Deportation prior to the end of a criminal proceeding can leave a victim without the opportunity for closure or their chance to confront their defendant in court through a victim impact statement,” she said.
A defendant who is deported, or voluntarily departs, also skips out on possibly paying restitution through a criminal process.
Is a bench warrant valid?
Though Hernandez’s February trial was vacated, the case remains open. The court pushed his trial date to June.
As long as there is a pending felony charge against Hernandez, it’s unlikely he can legally re-enter the U.S., even to appear in court.
“In theory he could come back on a student or tourist visa, but those are discretionary, too,” Trefonas said. “Someone at the embassy says, ‘Oh, you want to be a student with an open second-degree sexual [abuse]? I’m not letting you back in the country.’”
During the pretrial conference, Hinckley asked Judge Day if he would issue a bench warrant for failure to appear when the trial happens.
“If we’re going to have a trial I’m not going to call a jury unless he is present at a pretrial conference,” Day said. “Some decisions have to be made by the state and the defense.”
Trefonas argued that Hernandez was not in violation of the court, he would like to appear, but by federal law legally cannot. She cited a similar case in Kansas’ 10th Circuit.
“The court there found as a policy matter that if the U.S. government wanted him here for prosecution the government cannot complain about him not being here,” Trefonas said in court. “If this court were to issue a bench warrant then the defendant will object to the bench warrant.”
Hinckley, on the other hand, believes the only solution is for the court to order a bench warrant. But Hernandez would be subject to arrest only if he returns to the U.S., which would happen if he either did so illegally or received a visa, which is unlikely with the pending felony.
“I get that I’m driving this truck,” Hinckley said in court. “But I don’t know what to do.”
Hessler said Hernandez is torn about the possible outcome of his current situation.
“He’d love the ability to go back and forth,” she said. “I think he wants to be in the United States, but he sees that he could do a lot of good in Mexico.”
He’s in no-man’s land, she said. He was attending community college in Denver and working toward a degree and career mentoring at-risk youth — all of which has been derailed.
“He’s in this place of ‘I just want to have a home, I just want to know when I wake up what I’m doing,’” she said. “I don’t think he’s mentally ready to say he will spend the next 10 years in Mexico.”
Trefonas said there’s no clear outcome for the case.
“We apply for a student visa with the case pending,” she said. “Or maybe someday this goes away.”
This is the first time the Teton County Prosecuting Attorney’s Office has dealt with something like this, Hinckley said. But it won’t be the last.
Similar cases, defendants self-departing or being deported before a case is resolved, have popped up in Teton County, Idaho, and Wyoming.
One option for defendants who want to stay in the country and continue to fight their cases is to stay in jail and not bond out. Criminal defense attorney Chris Lundberg said one of his clients, Jesus Olvera de Jesus, stayed in the Madison County (Idaho) Jail for 66 days awaiting trial for a driving under the influence charge, despite a judge ruling that the officer had no reason to pull him over. The defendant grew impatient in custody, bonded out and was deported before trial.
A confusing new conflict
It’s an issue that prosecutors are wrestling with, and one they feel as if they have no control over.
“We’ve entered a surreal time where the crossroads of immigration law and criminal prosecution are drifting into each other’s lanes,” Teton County Prosecuting Attorney Steve Weichman said in court on Nov. 1 during an unrelated case. “I am absolutely out of my depth now.”
Weichman said the Hernandez case has left him disoriented.
“[A] defendant was out on bond pending trial, which is a reasonable bond required by the statute and Constitution,” he said, referencing the Hernandez case. “The federal government informed the defendant that if he didn’t leave the country within a day they would come and arrest him and deport him themselves, all the while they were aware of his pending felony criminal trial in this court.”
Weichman said the state tries to execute its responsibilities “with a complete blindness” to immigration status.
“I hope the court would agree that the state has never tried to use someone’s immigration status against them or for them in any way in our prosecution of state law,” Weichman said to Judge Day. “If we’ve entered an age where a noncitizen who posts bond in a felony case can be deported before a felony trial are we to then incorporate immigration status into our bond recommendations?”
During the November plea hearing Weichman asked for the other defendant’s half-million-dollar bond to remain, fearing that if the defendant were released he would be deported immediately regardless of his acceptance of responsibility.
“If he were to be released pending sentencing my government might steal him and prevent him from being able to be accountable,” he said.
As long as the current executive orders remain, authorizing the deportation of unconvicted alleged criminals, many state cases in the U.S. may never be resolved. Victims won’t have their day in court and defendants will never have the chance to be exonerated or punished.
“I don’t believe the defendant would ever intentionally avoid the jurisdiction of this court,” Weichman said. “I’m worried that the government would do it for us.”