DHS Secretary: Deported Man Gave Up DACA Status 'By His Illegal Actions'

By Susan Jones | April 21, 2017 | 6:06 AM EDT

Homeland Security Secretary Jack Kelly speaks at a news conference in El Paso, Texas on Thursday, April 20, 2017.

(CNSNews.com) – “There is a legal way to come to the United States, a legal way to remain here, and that’s what we need to enforce,” Homeland Security Secretary Jack Kelly – joined by Attorney General Jeff Sessions -- told a news conference in the border city of El Paso, Texas on Thursday.

Kelly also spoke about the young man who came to this country illegally when he was 9, enrolled in President Obama’s DACA (deferred action) program, and was recently deported to Mexico.

Attorneys for 23-year-old Juan Manuel Montes say he is the first DACA-enrolled person to be deported, and they are suing the Trump administration.

“There was a time in his life that this individual was a DACA registrant,” Kelly said on Thursday.

“But he gave that up in his behavior, by his illegal actions. He’s no longer covered by the DACA arrangement that President Obama brought in, so he’s now, to the best of my knowledge, he has been returned to Mexico.”

DHS said Montes went to Mexico without permission, as required under DACA, then re-entered the U.S. illegally by climbing over a border fence on Feb. 19.

But according to the lawsuit filed on Montes’ behalf in the southern district of California:

This undated photo provided by the National Immigration Law Center shows Juan Manuel Montes, 23. The U.S. Department of Homeland Security is the first DACA registrant to be deported by the Trump administration for "illegal behavior," the Department of Homeland Security said. (Juan Gastelum/National Immigration Law Center via AP)

CBP agents arrested, detained, and physically removed Mr. Montes from the United States in the middle of the night on or about February 18, 2017. Mr. Montes was approached by a CBP agent while he was walking down the street in Calexico, California on his way to take a taxi home after seeing a friend. At that time, Mr. Montes had DACA status and employment authorization, which did not expire until 2018. The physical departure from the United States of a DACA recipient without governmental permission of a grant of “advance parole” before departure automatically terminates DACA status.

But Montes’ attorneys argue he did not leave the U.S. voluntarily.

Montes, who did farm work in the U.S., “suffers from a cognitive disability” and “does not know the legal basis for his removal,” the lawsuit says, because “CBP did not provide Mr. Montes with any documentation or record of his removal.”

The National Immigration Law Center, which represents Montes, is now suing under the Freedom of Information Act to get documentation on why their client was deported.

"Juan Manuel has been unequivocal in his assertion that he never voluntarily left the country while he had DACA," said attorney Nora Preciado. "Rather than continue to provide half-truths and varying assertions, DHS should respond to our request for documentation. We will see them in court."

According to the Associated Press, DHS said Montes was convicted of shoplifting in July 2016. His lawyers acknowledged in the lawsuit that he has a misdemeanor on his record and "minor traffic offenses," none of which would have disqualified him from DACA, but which might be grounds for his deportation under the Trump administration.

Kelly told the news conference on Thursday that Montes’ illegal behavior is justification for his removal to Mexico.

Kelly also noted that in the previous eight years, the federal government has not done “any real enforcement’ in terms of the border enforcement or those individuals who are in the country illegally.

“So yes, the system is overwhelmed, because now we’re doing just exactly that – enforcing the law,” he said.