An immigrant who took refuge at an Oregon church to avoid deportation should be allowed to stay in the U.S. because of a judicial error at a hearing more than a decade ago, his attorney said Monday.
Francisco Aguirre Velasquez, who came to the U.S. from El Salvador nearly 20 years ago, had been deported to his native country in 2000 after a drug conviction. He was charged in November with unlawfully re-entering the U.S.
His attorney Ellen Pitcher said Monday in U.S. District Court that the judge at the deportation hearing 15 years ago incorrectly told Aguirre he would be detained indefinitely, even if his application to suspend his deportation had been granted. Not wanting to sit in jail, Aguirre agreed to be deported, the attorney said.
Pitcher said Aguirre may have qualified for immigration relief and release from detention because he had been tortured and abused as a child in his country of birth, and because his drug conviction carried a sentence of less than five years.
"This was an unconstitutional deportation that cannot be the basis for any new prosecution," Pitcher said. Aguirre's current charge should be dismissed, she said.
The federal government argued that Aguirre's drug convictions make him ineligible for any form of immigration relief, meaning a possible error by the previous judge would be irrelevant.
In 1999, Aguirre pleaded guilty to two counts of delivery of a controlled substance. He was sentenced to 90 days in jail and three years of probation. Aguirre later changed his plea to no contest.
"An aggravated felon is categorically denied relief across the board," said Assistant U.S. Attorney Greg Nyhus, who is prosecuting the case.
Aguirre, 36, came to the attention of authorities in August 2014 after a driving under the influence arrest. He took refuge at Augustana Lutheran Church in Portland after authorities tried to detain him at home.
He is among dozens of immigrants who have taken sanctuary in U.S. churches in recent years because authorities generally don't make arrests in places of worship.
Aguirre, who spent nearly three months in church sanctuary, was arrested in November when he briefly left the church to appear in county court on the DUI charge. He was then released on a judge's order while his federal case is being resolved.
The father of two children who are U.S. citizens, Aguirre has worked as the coordinator of a Portland nonprofit that runs a day labor center. His supporters say Aguirre has contributed to his community during the past decade and should be allowed to remain in the U.S. with his family.
Aguirre's immigration lawyer, Stephen Manning, said Aguirre has applied for a U-visa, a special immigration document for violent-crime victims who help authorities investigate or prosecute cases.
His U-visa process is on hold while the separate court case on illegal re-entry is being decided. U.S. District Court Judge Robert Jones will rule on that case in the coming weeks.