Judge prepared to order first DREAMer deported under Trump back to U.S. to make his case

SAN DIEGO — A federal judge said Tuesday he was preparing to order the Trump administration to return the first known DREAMer it deported back to the United States to make his case for staying.

U.S. District Judge Gonzalo Curiel said he needs to hear first-hand from Juan Manuel Montes, 23, to rule on the undocumented immigrant's claim that he was deported illegally by border agents.

Lawyers for Montes say he was wrongfully removed from the country around 1 a.m. on Feb. 19 because he had protection under the Deferred Action for Childhood Arrival program, or DACA. The Trump administration said Montes voluntarily left the country, forfeiting his protection from deportation.

"I would be inclined to direct that he be paroled into the United States," Curiel said. "I would like to observe the demeanor of the witnesses. I would like to determine what they have to say."

Curiel ordered the attorneys back to court Wednesday to set a schedule for a trial and to announce whether he will order the Department of Homeland Security to return Montes, who has been living with relatives in his native Mexico. Montes came to the United States with his family at age 9. 

Curiel said the case is unlike any he had ever seen because the government has not been able to come up with any documentation of Montes' deportation on the February night in dispute. 

"I have yet to see a case similar to ours as to an individual being removed by U.S. law enforcement and there is not one piece of paper, there is not one note, there is not one iota of evidence to memorialize that an individual was removed from the United States," Curiel said.

Justice Department attorney Aaron Goldsmith said no evidence exists of the deportation because it never happened. "We don't have any record of this," he said.

Curiel previously oversaw lawsuits against Trump University during the presidential campaign, prompting then-candidate Donald Trump to label him a "hater" and question whether Curiel could be objective because of his "Mexican" heritage, although the judge was born in Indiana.

This spring, Curiel approved a settlement for President Trump to pay $25 million to end the lawsuits by students who said they were defrauded. Trump did not admit any wrongdoing.

Tuesday's hearing coincided with a presidential trip to Arizona that included a visit to the U.S.-Mexico border wall.

Montes, whose story was first reported by USA TODAY, described himself as a victim of overzealous border agents who disregarded his protection from deportation under the DACA program, which was started by President Barack Obama and continued by Trump. It grants two-year stays for undocumented immigrants brought to the United States before their 16th birthday who have attended school or joined the military and have not committed any serious crimes. 

In an earlier interview from a relative's home in western Mexico, Montes said he was waiting for a ride outside a restaurant near the border in his hometown of Calexico, Calif., on the night of Feb. 18. A Border Patrol agent approached him, detained him and then deported him at around 1 a.m. Feb. 19 even though he was twice granted deportation protections under DACA.

Nearly 800,000 undocumented immigrants have been protected by DACA, which Trump has the power to end at any time because it was created by a Department of Homeland Security directive and requires no action from Congress.

"The federal government made the same promise to Juan Manuel that was made to nearly 800,000 DACA recipients across the country," said Nora Preciado, an attorney with the National Immigration Law Center who represents Montes.

"When he was unlawfully expelled, the federal government not only broke its promise to Juan, they also violated his constitutional rights," Preciado said before Tuesday's hearing. "We're here in court today because Juan Manuel should be at home with his community, not by himself in Mexico."

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Both sides agree on what happened after the night in dispute: Montes tried to re-enter the U.S. by jumping the border wall. He was captured by Border Patrol agents and deported back to Mexico.

After USA TODAY published Montes' story on April 18, the department said Montes' DACA status had expired in 2015. The next day, the department changed its account, conceding that his DACA status was active but revoked after he voluntarily left the country.

Any ruling could be appealed to the U.S. Court of Appeals for the 9th Circuit, which twice ruled against Trump's travel ban targeting several majority-Muslim countries. The decisions prompted Trump to publicly chastise the court.