This column has been updated to include a response from the State Department.
LOS ANGELES — “Dreamer” Marco Villada Garibay left the country on the U.S. government’s promise of a possible green card. Now he’s trapped in Mexico and might never be allowed to return.
Villada, 34, came to the United States — the only country he knows — illegally from Mexico at age 6. This is where he went to school; where he worked and paid taxes; and, most significantly, where he met his husband, Israel Serrato.
“From the beginning,” Villada says, “I knew that Israel was my home, that that’s where I belong.”
In 2013, Villada received protection from deportation under the Deferred Action for Childhood Arrivals program, or DACA. This was a huge relief to the couple. Among other things, it meant Villada could work lawfully — as a legal assistant at a Los Angeles-area firm. And he could do simple things, such as drive to the supermarket, without fear of being detained.
DACA gave them hope for a life of security together. So too did the Supreme Court’s affirmation of gay couples’ right to wed. Just six months after the landmark Obergefell decision, they got married. They began planning a family and all the other things that blissful newlyweds engage in. They also had one critical, additional task: making Villada’s immigration status permanent.
DACA, after all, was a temporary fix whose future was uncertain. Under U.S. law, citizens such as Serrato can sponsor spouses for green cards — a process that requires the immigrant spouse to return to his or her birth country to apply through a U.S. Consulate there.
Leaving the country is risky, though. Normally if you’ve spent more than six months here unlawfully and you leave, you’re barred from coming back for years. Sometimes forever.
In select cases, such immigrants can get waivers if they can prove their absence would cause their family extreme hardship. Which Villada had no problem demonstrating, given the emotional and financial support he provides to his family in the United States.
Working with an immigration attorney, Villada applied for, and received, a “provisional unlawful presence waiver.” This basically said the government determined that he met the qualifications and that he should feel free to go to Mexico for a consular interview.
The couple planned a two-week trip to Ciudad Juarez in January, which they mostly viewed as a formality. Still, it was significant: When he left the country, Villada’s DACA protections, which had been scheduled to last through 2019, automatically terminated.
Things didn’t go according to plan.
The consular official interviewing Villada kept leaving the room and returning. At the end, she gave him a blue paper saying his application for a visa was denied — and that he could not return to the United States for at least a decade, if at all.
Villada and Serrato had planned a dinner celebration that night. Instead, they went to their hotel and held each other, sobbing, for hours. A few days later, Serrato returned to L.A., alone.
One of their (new) lawyers, Stacy Tolchin, said she has gotten a lot of calls lately like this one: from immigrants who left the country after receiving provisional waivers, only to be told at their consular interview that — oops! — the government found something disqualifying them from returning to the United States after all. (The State Department told me it cannot comment on specific cases because visa records are confidential under U.S. law.)
In Villada’s case, the consulate told him, he’d been disqualified by a short trip he took in 2000, at 17, to Mexico to attend his grandfather’s funeral. The consulate said the problem was that he entered the country “without inspection” a second time. But Villada had already disclosed this trip to the government when he applied for that provisional waiver. Plus his lawyers argue that because an immigration official had looked at his school I.D. and waved him through, he didn’t enter the country illegally according to recent case law.
“I don’t know if they were lazy and sloppy or looking for ways to trap people,” says Tolchin. “Either way, they have an obligation to do their job, and they didn’t do it.”
She and co-counsels from the National Immigration Law Center and the firm Mayer Brown plan to file a federal suit Tuesday challenging the consulate’s decision.
Meanwhile, Villada is crashing with relatives whom he barely knows. Things are not much better back home in L.A.
Without a second income and crushed by the weight of their prior legal bills, Serrato was forced to sell their furniture and move in with a friend. Villada’s mother and U.S. citizen siblings — one of whom is about to deploy to Iraq — face the fallout too. Villada had been helping provide financial support and care for his 7-year-old brother, who has autism.
“We are all victims of this unjust decision,” Serrato says. “He belongs here. He belongs here with me.”
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