USA Today published a shocking report on Wednesday detailing the plight of Juan Manuel Montes, a 23-year-old undocumented immigrant who claims he was unlawfully deported. Montes, who was brought to the United States at age 9, is a participant in the Deferred Action for Childhood Arrivals program, which allows him to live and work here despite being undocumented. According to the USA Today investigation, however, Montes was stopped in Calexico, California, in February by a Customs and Border Patrol officer, who refused to let him provide proof of his DACA status. Instead, the CBP deported Montes to Mexico in a matter of three hours.
When USA Today first published its story, the Department of Homeland Security alleged that Montes’ DACA status actually expired in 2015, rendering him deportable. But Montes’ attorneys promptly provided his work authorization card, which showed that his DACA status extended through 2018. Then, on Thursday, Homeland Security Secretary John Kelly provided a different explanation. Kelly acknowledged that Montes once had DACA status but declared that “he gave that up by his behavior and his illegal actions. He’s no longer covered by the DACA arrangement.”
Here, Kelly appeared to be referring to Montes’ minor criminal history: He has been convicted of shoplifting and driving without a license. The implication of Kelly’s comment is that, by committing these crimes, Montes forfeited his DACA status.
Yet that claim is entirely out of line with the narrative that has become DHS’s official account of the Montes case. As Dara Lind notes in Vox, DHS now asserts that the government never deported Montes in the first place. According to DHS, Montes was intercepted in Calexico attempting to climb over a border fence into the United States. Leaving the country without permission then re-entering it illegally is undoubtedly a DACA violation. So if DHS’s account is correct, the government had every right to deport Montes.
Montes admits that he was caught attempting to climb the border fence. But he alleges that he only tried to re-enter the country illegally because he was deported illegally. DHS has essentially called Montes a liar, insisting that he made up the initial encounter with CBP. If that’s true, DHS can prove it by releasing his CBP record.
But DHS won’t release Montes’ record. Montes’ attorneys requested them last month to prove that their client was telling the truth, but DHS has thus far refused to turn them over. The lawyers have had to file a federal lawsuit in an effort to retrieve the files.
There are obviously two sides to this story. But looking at the facts we have so far, it seems distressingly plausible that the Trump administration, not Montes, is lying. If Montes’ CBP record proves DHS’s account, why not release it? Why imply that he was deported for minor crime, then allege that his actual offense was hopping the border? Why not set the record straight with evidence?
Some 750,000 dreamers are closely watching Montes’ case. If the government can deport him and get away with it, they fear it can also deport them without repercussions. In reality, the Constitution forbids the government from breaking its promise to DACA recipients by arbitrarily revoking their status. But the Trump administration does not hold the Constitution in especially high esteem. And DHS’s strange behavior in the Montes case suggests that it will warp both the law and the facts in order to achieve its desired outcome.