Felipe Bautista Montes, a deported Sparta man who was awarded custody of his three sons last month in Alleghany District Court, is facing a tight deadline to remain in the United States.
He is scheduled to fly out of Charlotte Douglas International Airport at 9 a.m. Friday for deportation to Mexico. But Presente.org, an online advocacy group for Latinos, is continuing its efforts to find a way that Montes can stay in the United States with his children — Angel, 2; Adrian 3; and Isaiah, 5. His children were born in the United States, and Montes said he doesn’t want to tear his children away from the only home they have known. He also said his American-born wife is here.
Montes, 33, was deported in 2010 after he was cited for a number of traffic violations before his wife, Marie, lost custody of their children when Alleghany County Department of Social Services determined she was an unfit mother. Felipe Montes was granted a rare type of visa called a humanitarian parole, allowing him to return to Sparta and fight for custody of his children. That parole was extended a few times because of delays in court hearings and after Judge Michael Duncan of Alleghany District Court granted Montes temporary custody in November. Last month, Duncan granted Montes permanent custody of the three children.
But Montes’ visa expires Saturday, and he has been told he has to return to Mexico on Friday morning. His children already have passports to travel to Mexico with their father.
Presente.org, which has 300,000 members, has worked with several congressional offices, including that of U.S. Sen. Kay Hagan, D-N.C., to get either a stay of removal or an extension of Montes’ humanitarian parole.
Kyle de Beausset, senior campaigner for Presente.org, said he tried to file a stay of removal at the Immigration and Customs Enforcement office Thursday in Burlington, Mass., but was not successful. He said he works out of Burlington and had been told he could file for a stay of removal there, even though in most cases Montes would have had to file in either the Charlotte or Atlanta immigration offices.
Federal immigration officials in Atlanta say they have not received any requests in the Montes case.
A request would be considered based on the circumstances of the case, they said. Federal immigration officials have been exercising prosecutorial discretion on a case-by-case basis, following a directive in a June 17, 2011, letter from ICE director John Morton. President Barack Obama has publicly supported that directive.
Prosecutorial discretion, however, may not apply in Montes’ case because he has already been deported and was only in the United States on the humanitarian parole, said Mark Atkinson, a Winston-Salem immigration lawyer.
“Usually, prosecutorial discretion applies when someone has given notice to appear in an immigration case for deportation,” Atkinson said.
A stay of removal could be granted if Montes could get his deportation case reopened. That, Atkinson said, would be difficult.
Another option would be an extension of Montes’ humanitarian parole, Atkinson said. But that request would have to be based on a different reason since the custody issues have been resolved.
Ann Robertson, Montes’ immigration attorney, said Thursday that she had talked to Montes about his options soon after he was granted permanent custody of his children. Presente.org had worked with Robertson to get Montes’ humanitarian parole, she said. She said she didn’t apply for an extension because she couldn’t find another reason for an extension of the humanitarian parole.
She said officials with Presente.org took up the case and have been working to find a way for Montes to stay in the country. Presente.org is also circulating a petition and asking its members to call Morton and urge him to let Montes stay in the United States.