Mexicali Blues
Francisco “Junior” Diaz and his lawyer say he has been a U.S. citizen his entire life, so why did the U.S. government deport him three times?
MEXICALI, Baja California — Another Diaz family reunion, the seventh since November, is wrapping up at Casa Hogar, an elderly care home in this humid Mexican border town.
A total of six family members have made the trip from Las Vegas to see the oldest of seven siblings, Francisco Diaz Jr., 40, who is the youngest resident of the care facility by at least 30 years.
Adela España, Junior’s mother, has been staying with him for a few days, but will return to the United States this afternoon with the rest of the family. Before departing, she rubs moisturizing lotion on Junior’s left arm, which lays motionless when it’s not shaking uncontrollably. She keeps a tissue bunched in one hand for dabbing her tears away.
Junior, dressed in a navy blue Dallas Cowboys sweatshirt and sitting in a wheelchair, accepts a big hug from Ruby, his daughter. Before this January weekend, they had exchanged letters, but he had not seen her in over 20 years.
Before the family leaves, Junior grabs a photo album he has already flipped through a half dozen times this weekend. He scans the pictures, attempting to plaster over the 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.
His sister, Jacqueline, made the album for him, chronicling the three weeks he spent in a coma and the arduous recovery process that is only just beginning. She 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, as everyone in the Diaz family calls him, has been deported three times. The most recent was in March 2013, when he ended up in his birthplace of Mexicali, which received more deported Mexicans last year than any other city.
His current predicament is, admittedly, partly his own doing. Diaz, more than once, has been convicted of drug possession and stealing cars. His criminal and immigration troubles turned him into an absentee father.
Adela, diminutive, barely nudging past 5-feet in stature like most of the family, appears weighed down, a perpetual furrow in her brow, by the dual burdens of guilt and unconditional love. She cannot retract mistakes of the past, but she can try and improve the present.
The Diazes blame themselves for having allowed this tragedy to happen, but somewhere along the line, they believe, someone in the government should have given them proper counsel.
Junior’s immigration status has been reviewed no fewer than three times by federal officials and judges, and every time they determined Junior is not a citizen of the United States.
The family has always felt otherwise. Junior’s mother and all six of his siblings are U.S. citizens, and everyone, including Junior, was raised in Las Vegas. Immigration law is wickedly complicated, however, and the nuances of who is a citizen can be difficult to navigate.
During the two hours waiting in the border crossing line, and more than five hours driving back to Las Vegas, in between stops for McDonald’s and gasoline, the family has plenty of time to ponder how Junior wound up here. How Junior fell into the wrong circles and became a criminal. How Junior was deported repeatedly, despite being a citizen at birth, according to his new lawyer. How Junior was jumped by a group of men in Mexicali, beaten mercilessly, and then managed to survive even after doctors were ready to pull him off life support.
“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,” said Rex Velasquez, Junior’s Las Vegas-based attorney. “It’s just a shame, because it never should’ve happened in the first place.”
• • • • •
In November 1998, while Junior was incarcerated at Nevada’s Southern Desert Correctional Center on convictions of cocaine possession and auto theft, he wrote a letter to the Immigration and Naturalization Service after learning they had plans to deport him.
He complained that the immigration hold had “placed various limitations on the rehabilitation programs” in which he was able to participate, and asked what he could do to lift the hold.
“I have been a U.S. citizen for 25 years,” he argued.
This was not Junior’s first encounter with the law. By the time he was 16, he had a juvenile record that included driving without a license, trespassing and curfew violations.
His behavior only got worse after he turned 18. Within the space of a few months 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.
It was not until the immigration hold and court hearing in 1999, that he first realized he was not officially a citizen. As a registered permanent resident with multiple felony convictions, the federal government moved to deport him. Junior’s case was complicated, though, and over the next decade three different judges would look at his file and deny his citizenship claim.
It wouldn’t be until Junior almost died that someone finally backed what he had always felt instinctively, he was American all along.
• • • • •
Adela España was born in Texas in 1958. Her father died when she was 10, and her mother, a migrant farm worker in California, sent Adela 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 to give birth in July 1973. The couple went to Mexicali on vacation for Mother’s Day, when she went into labor two months prematurely and gave birth to Francisco Alberto Diaz España Jr.
According to U.S. law, 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 United States for the year prior to giving birth.
The new parents moved to Las Vegas, where Francisco Sr. had found work. Adela says she and Junior’s father declared their desire for Junior to be a U.S. citizen, but were informed by Immigration and Naturalization Services (which, post-9/11, was divided 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 Dec. 1973, and went 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. The children were split up. 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.”
On Aug. 25, 1999 an immigration judge ordered Junior removed from the country. According to court records, he claimed U.S. citizenship but did not get his mother, who was suffering from kidney disease at the time, to testify on his behalf.
“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, making a claim that Diaz still believed he was a citizen. In the filing, however, the public defender agrees with the previous court’s decision that Diaz did not have the law on his side.
There are several sections of federal law that apply to citizenship at birth and citizenship acquired after birth. The law Junior’s public defender referenced said 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 claim, missing the special stipulation for children born out of wedlock.
Junior grew up going to Las Vegas schools, and made it through his sophomore year at Las Vegas High School before dropping out at 16, when he got his girlfriend pregnant. In 2002, while in custody awaiting his hearing, he started taking classes in preparation for the high school equivalency exam, taught English to other Hispanic inmates and secured several letters describing him as a model inmate.
His attorney made the case that Junior returned to the United States not simply for work and financial gain, but because he was culturally American, had virtually no ties to Mexico, and wanted to rejoin his family.
A pre-sentencing report used by the court carried a glaring typo, stating Junior’s “primary language is English and he speaks little English.”
Junior’s lawyer pointed out the error, and said it should have clearly read, “speaks little Spanish,” but the judge refused to correct the record.
The lawyer had Junior meet with Amado Padilla, a professor of psychological studies at Stanford at the time, and an expert on social and educational issues among immigrants.
Padilla testified that Junior was culturally assimilated to the United States, and had always believed himself a citizen.
“I thought I was a citizen … I had a legal Social Security number and I used it when I worked,” Junior told the professor.
“I consider myself American, because I’ve lived here all my life, my family is here, my mother is American and so are all my brothers and sisters. We all speak English and actually we mostly only speak English. Also, because I’ve adapted to this country and culture. It’s what I know. Actually, it’s the only culture I know.”
The judge rejected the motion for leniency, and Junior was deported for the second time on March 7, 2003.
Again, he returned.
During the course of his staccato stays in Las Vegas, Junior worked for his father’s construction crew and his mother’s cleaning business. He also worked at several restaurants, and calls himself a “gourmet chef.”
He helped his sister Jacqueline raise her older children while he lived in her house, but he also fell back into crime. In 2008, Junior was arrested for separate incidents of methamphetamine possession and possession of a stolen vehicle.
His new public defender again took up the case of his citizenship. Junior could have derived citizenship through his mother if he had simply applied before his 18th birthday, while he was still a permanent resident. If the information Adela had received from INS when Junior was born hadn’t been erroneous, or incomplete at best, he would be a citizen today, the lawyer argued.
The judge rejected the notion that the government was responsible for the 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 Las Vegas after midnight. Six to eight members of the Diaz clan pile into the three rows of seats in Jacqueline’s white Ford Excursion.
Through the dark, quiet desert to the south the SUV dips and creeks over rolling freeway, past sand dunes and cactus-spotted terrain that gives way to acre after acre of cow pasture.
Just as Mexicali is waking up on Saturday, the Diazes cross over 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 a dirt road to Junior’s assisted living home.
After arriving in Mexicali in March, Junior says he tried to make the most of life in the city of 700,000. His recent journey through the court system discouraged him from further attempts to return.
“I met guys in prison that 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 me told me: ‘A lot of shit is going down here. I don’t want to be here anymore. I want to be home. I miss my family.’”
Junior says locals in Mexicali were harassing him. A group of guys assaulted him, yelling “pocho,” a derogatory term for an Americanized Mexican.
On November 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.
After he was in a coma for two weeks, doctors told the family that he would never 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 all over from the beating, he was completely paralyzed on his left side, could barely talk and had memory problems, but he was awake.
Diaz does not recall the attack or being taken to the hospital, but he suspects the same men who assaulted him previously followed him, and attacked when they knew he was carrying 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.”
The Diaz family skipped Thanksgiving and Christmas last year, pouring all of their resources, money and time into getting Junior back to the United States.
After he was discharged from the public hospital, the only affordable facility the family could find in Mexicali to take Junior in was an assisted living home, where he plies the older residents with cookies and other American treats. 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 family spends $500 a month on the home, and has spent thousands more on medicine, food, gas and other expenses since the attack.
Jacqueline says she made it clear to Junior that there will be no more tolerance for his old lawbreaking habits and friends. It was his family who came to his aid.
“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, the subject of his first tattoo. It is now one of many running up and down his arms, and Junior bonds with Ruby over her own ink, and their mutual love of drawing and painting. They were in touch through letters before this visit, but have not seen each other in two decades.
“I hope something good does come of this, and we can get my dad back to the U.S.,” Ruby, 23, said. “It’s hard to have a relationship with him here, and we are trying to reconnect. I think the immigration system contributed to taking away my time with my dad.”
Junior’s doctors say the best thing would be for him to return to Las Vegas, where he could be close to family and receive more advanced medical care. Meanwhile, he is focusing on his rehabilitation, and piecing together the attack and its aftermath.
The back of his head, sprouting with stubble after being shaved clean from 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. The wounds are healed, but no hair has grown over the scar, which zigzags from just above his right ear up to his forehead
Junior has lost 60 pounds since the attack, and gets tired easily. While lying in his bed on a Sunday afternoon he considered his current situation. If his claim to citizenship is validated, he wants to move in with his mother and help her wind down from a lifetime of working multiple jobs. If his health allows, he’d like to open an auto-detailing business.
“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.”
Now, a fresh start and improved medical care are all dependent on the passport application, complete with his lawyer’s argument, Junior will need to file at U.S. Consulate in Tijuana. The passport would signify the U.S. State Department’s acknowledgment of his citizenship.
Las Vegas immigration attorney Rex Velasquez, who knew Jacqueline through a previous employer, took Junior’s case pro bono after the attack.
“When I looked at it, right away from what I could tell, everyone missed the boat,” Velasquez said.
The judges and public defenders had been looking at the wrong part of the law all along. Junior was a U.S. citizen at birth, Velasquez says, no additional steps were ever necessary.
Adela was in school in San Diego prior to Junior being born out of wedlock, proving her residence in the United States the year prior to the birth. Junior never needed the green card that created the illusion that he lacked citizenship.
“Working in the government we were deathly afraid of claims of U.S. citizenship, 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,” Velasquez said.
Officials from both U.S. Citizenship and Immigration Services and Immigration and Customs Enforcement say, because Junior is deported and living abroad, the case is now in the hands of the State Department. Multiple judges determined Junior was not a citizen, and the agencies acted accordingly.
“The burden of proof is always on the applicant,” a USCIS spokeswoman said.
Velasquez, himself 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.”
“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.”
• • • • •
The return trip home 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 government building, an older man is helping a younger one climb a rope ladder over the fence. The young man slides down a rope 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.
A condensed version of this story originally appeared in The Sunday, a new, weekly magazine from the staff of the Las Vegas Sun.
