Criminal charges were cleared last week, but Gilberto Reyes-Herrera is in custody of U.S. Border Patrol, waiting another appearance.

After being in jail for seven months, Gilberto Reyes-Herrera, a local farm worker who has many supporters in the Penn Yan community, pleaded guilty in Federal Court in Rochester Jan. 24 to one charge of unlawful re-entry by a previously deported or removed alien.

Judge Charles Siragusa sentenced Reyes-Herrera to time served, and the criminal complaint was dismissed. The maximum sentence is up to two years in prison and a fine of up to $250,000.

With the agreement, Reyes-Herrera has given up his right to appeal.

He is being held in a U.S. Border Patrol facility in Batavia. His immigration attorney, Carole Livsey, has filed a stay of removal motion.

He is likely to appear before an immigration judge, who could send him back to Mexico.

According to reports from the courtroom, Reyes-Herrera told the judge, “My heart is destroyed from separating from my family.”

The charge is a felony offense, which means if he is deported, he is not likely to be issued a visa to return to his family. He had been hoping the charge could be reduced to a misdemeanor which would leave the door open for a visa application.

Before his plea was heard by Siragusa, a rally was held in front of the courthouse Jan. 24. Supporters who sat in the courtroom last Wednesday, and those who protested his arrest last June, say his arrest was a violation of state police policy.

Reyes-Herrera and his wife came to the United States more than 20 years ago. He was first detained by immigration officials near Dresden in 2000, and eventually deported to Mexico in 2006, leaving his wife and three children behind. The children are natural-born U.S. citizens. He eventually crossed the border for a second time with the help of a smuggler so he could return to his family.

At about 11 a.m. June 29, 2017 a New York State trooper stopped a vehicle in the town of Jerusalem because the driver was not wearing a seat belt. Although the trooper cited the driver and let him go, the officer asked two back seat passengers — one which was Reyes-Herrera — for identification. When they were unable to provide ID, the trooper detained them and held them at the Dundee Trooper barracks until a border patrol agent transported them to the Rochester Border Patrol station. Reyes-Herrera has been in custody ever since.

He and his wife, who came to the United States together as a young married couple so many years ago, had both been trying to achieve citizenship, but now she has told their lawyer to put all efforts into helping him.

His supporters say he has been a hard worker who has contributed to the community, and he should be allowed to remain in the U.S.

Reyes-Herrera’s future is tied up in a conflict between federal officials whose mission is to deport undocumented individuals, and New York State actions taken to assist immigrants.

In September 2014, Gov. Andrew Cuomo launched an initiative to protect undocumented immigrants from police actions where non-criminal offenses are involved. The initiative became official state police policy.

Since the Reyes-Herrara’s arrest, Cuomo has issued an executive order that prohibits state agencies and officers from inquiring about or disclosing an individual’s immigration status unless required by law or necessary to determine eligibility for a benefit or service.

According to information from Cuomo’s office, law enforcement officers are prohibited from inquiring about immigration status unless investigating illegal criminal activity. 

This prohibition against inquiring into status includes, but is not limited to, when an individual approaches a law enforcement officer seeking assistance, is the victim of a crime, or is witness to a crime.