Late Tuesday night, that effort failed when Beristain was deported to Mexico, the country he left in 1998, according to a statement released by his legal team. ICE officials also confirmed that officers turned Beristain over to “Mexican authorities at the Paso Del Norte Port of Entry in El Paso, Texas” on April 4.
“The Beristain Family is distraught this morning as the U.S. government conducted a middle-of-the-night deportation of Roberto Beristain,” the statement said.
Beristain’s lawyers had filed multiple motions in federal court arguing that his removal order was legally improper, as well as asking an immigration judge to rescind the order. The attorneys also filed a habeas corpus petition arguing that Beristain’s due process rights had been violated.
“Before either judge had a chance to rule, in a highly unusual move, ICE agents rushed him 90 miles from the detention facility to the U.S.-Mexico border at Juarez, Mexico, as the sole detainee being moved,” the statement said.
The statement noted that Beristain’s lawyers were informed about Beristain’s removal not by ICE officials, but through Helen Beristain, who told them in a “late night, frantic call” that her husband was already in Mexico.
“They suddenly told me it was time to go,” Roberto Beristain said, according to the statement. “They told me to get my stuff, they put me in the back of a van, and sped toward the border. They took me to another facility while in transport to sign paperwork. I asked to speak with my attorney, but was told there wasn’t time for that. At around 10:00 pm, I was dropped off at the Mexico-U.S. Border and walked into Mexico.”
Beristain was arrested by ICE officials when he showed up for his annual meeting with the agency in February. He had been living with his family in Mishawaka, Ind.
He spent the months after his arrest being ferried among different ICE facilities nationwide as he awaited deportation, which could have occurred at any moment in recent weeks, the family’s spokesman, Chicago lawyer Adam Ansari, told The Washington Post.
“I understand when you’re a criminal and you do bad things, you shouldn’t be in the country,” Helen Beristain told the CBS TV affiliate WSBT. “But when you’re a good citizen and you support and you help and you pay taxes and you give jobs to people, you should be able to stay.”
With the Beristain family’s hopes dimming over the past few weeks, the legal effort to keep the popular Indiana business owner in the country entered a new phase: the Hail Mary pass.
Roberto Beristain’s attorneys said they’d discovered a discrepancy in 17-year-old paperwork that could halt their client’s deportation. The challenge, Ansari said, was that the 43-year-old was being moved from one ICE facility to the next, creating multiple jurisdictions for his legal team’s motions and making it difficult to get a hearing in front of a judge.
In recent weeks, Roberto Beristain has been moved from Wisconsin to Louisiana to New Mexico and most recently Texas.
“ICE officials keep moving him around knowing full well we are arguing that there hasn’t been afforded adequate due process,” Ansari said. “It doesn’t seem like they care. It’s a complete violation of his rights.”
In a habeas petition filed Friday, Beristain’s attorneys argued that the U.S. government denied him his due process rights when he was detained after inadvertently crossing the Canadian border while visiting Niagara Falls with his wife in 2000.
During that detainment, the attorneys said, he was improperly classified as an “alien present without inspection,” a legal designation given to undocumented immigrants already inside U.S. borders.
Because Roberto Beristain had crossed into Canada, his attorneys maintain, he should’ve been classified as an “arriving alien,” a designation that would make him eligible to push for permanent resident status.
If he had been correctly classified, the attorneys argue, he would not have been eligible for a “voluntary departure” order, which was granted by a federal immigration judge for a 60-day period after he was detained in Canada and which forms the basis of his current removal.
Because he didn’t leave the United States during that period, his “voluntary departure order reverted to a final order of removal,” an ICE spokeswoman told The Post last month.
Their argument is based on a plain reading of the law, but his attorneys believe it’s the proper reading and may force a judge to entirely reconsider Roberto Beristain’s legal status.
“This case is a clear example of how complicated the system is, since even those charged with enforcing immigration laws don’t know what they’re doing,” Ansari said. “So how is someone like Roberto — who is not versed in the law — supposed to get right with the law when people who are tasked with enforcing it and representing it to immigration judges don’t accurately and properly portray the facts.”
Beristain’s attorneys said they have also filed pleadings with the immigration court in New York asking “for the rescission of the unlawful voluntary departure order” issued 17 years ago.
“People look at these things and see an immigration case, but the real story here is that it’s a case that involves a fundamental right to due process,” said Rekha Sharma-Crawford, an immigration lawyer who has worked on the case. “When you have a system that fails, it leads to a catastrophic result. Hopefully, we can go back in the court in New York and they will do the right thing.”
An ICE spokeswoman said Beristian was arrested because he didn’t leave the United States when ordered to do so by a judge in 2000, at which point his “voluntary departure order reverted to a final order of removal.”
Asked to comment on allegations that Beristain was being moved around to keep him from being seen by a judge, she said ICE moves detainees around “based on available bed space nationwide.”
“Each ERO field office may routinely transfer detainees to other ICE facilities as needed as part of the removal process,” she said. “Detainees may be ‘staged,’ for example, at a facility for several days pending removal to their country of origin by air or by land.”
When Helen Beristain told her husband that she was voting for Donald Trump in last year’s presidential election, he warned her that the Republican nominee planned to “get rid of the Mexicans.”
Defending her vote, Helen Beristain quoted Trump directly, noting that the tough-talking Republican said he would kick only the “bad hombres” out of the country, according to the South Bend Tribune.
“I wish I didn’t vote at all,” Helen Beristain told the Tribune. “I did it for the economy. We needed a change.”
By cooperating with ICE officials, Beristain was able to lead a normal life in plain view, one that included a work permit and a driver’s license. He even has a Social Security number that says “valid only with Department of Homeland Security authorization,” the Tribune reported.
Jason Flora, an Indianapolis lawyer who has worked on the case, said that, under his previous agreement with DHS, Roberto Beristain had an “order of supervision,” which allows immigrants with a removal order to remain in the country for a humanitarian reason, such as having sole custody of children or taking care of family members.
“Essentially,” Flora said, “they’re saying you’re not bad enough to be deported.”
Ansari said that the situation is always fluid and that accurate information is often hard to come by. What was clear, he said, was that the entire process since Beristain’s arrest had been “inhumane” and that the family is “distraught.”
“How do you explain this to children,” he said, noting that the couple’s kids are 15, 14 and 8. “Trying to explain this to children from the immigrant community has been really hard. You’re telling them that their loved one is in jail not because they did something wrong, but because of their country of origin and what they look like.”
“This is hurting the entire community, and people are scared,” he added.
Stories such as Beristain’s have inundated the news media in recent months.
“Previously,” as The Post’s Samantha Schmidt and Sarah Larimer reported last month, “the Obama administration prioritized the deportation of people who were violent offenders or had ties to criminal gangs. Trump’s executive order on Jan. 25 expanded priorities to include any undocumented immigrants who had been convicted of a criminal offense.”
Days after Beristain’s arrest, Flora said, he filed a “stay of removal” to prevent deportation, but it was rejected.
“Once the case is finalized and done, there’s really no reason to keep him around in their eyes,” Flora said, referring to ICE. “They think, ‘Why take up jail space for no reason if all the legal options have been exhausted?’ ”
Flora said the decision to deport Beristain is a “wildly disproportionate” response when measured against the law he broke nearly two decades ago.
“If you asked 100 people to paint you a picture of a bad guy, no one would draw anyone remotely resembling Roberto,” he said.
Helen Beristain told the Tribune that — in their effort to get her husband U.S. citizenship — the couple has had 10 attorneys in 18 years. Many of those lawyers, she said, told them that they had no choice but to wait for immigration laws to change.
Instead of changing in the couple’s favor, the laws evolved to make her husband more vulnerable to deportation. Helen Beristain told the Tribune that Trump’s deportation measures — the ones she thought her family would be exempt from — are harming “regular people.”
“We were for Mr. Trump,” she added. “We were very happy he became the president. Whatever he says, he is right. But, like he said, the good people have a chance to become citizens of the United States.”