A local family is caught in a legal wrangle between New York State and federal government

When he left for work June 29, he expected to return home to his family in the evening. Instead, a farm worker who has labored in the Finger Lakes agricultural community for nearly 20 years spends his days in Allegany County Jail trying to find things to do to keep himself from “going crazy.”

His wife, who has only spoken to him by phone for a few minutes since that day, says she is working harder than ever to keep her family together and cared for.

“I’m tired because I work so hard, but I’m so happy because I can give my kids a good life here. I don’t know what would happen if my husband is in Mexico and my kids are here. My heart is in two pieces,” she says through tears.

The woman confirms that as a young couple, the two came to the U.S. illegally with the help of a coyote, or smuggler. “We came here because we were looking for jobs.” she says, wiping tears from her cheeks, adding, “He told me ‘I have to go because we need to improve our lives.’” Her response was simply, “If you go, I’ll go with you.”

Since coming here, they have both been working to save enough money to pay for the legal help to gain citizenship. She says they have lost at least $2,000 to a fraud who claimed to be a lawyer.

Now, their family is caught in the legal wrangle between New York State and Federal officials — each with their own directives in regards to immigration.

The man’s detention was the focus of a protest held in Penn Yan in August, and community members are speaking out on his behalf. A volunteer at a local not-for-profit organization with knowledge of the family, has written a letter to the federal judge hearing the case. “(The man) is the kind of person we want in this country. He was willing to risk everything to come here. He is not afraid of hard work. He has raised children who want to be an asset to this country. He is a good husband and a good father,” she wrote.

The man, who is not being identified to protect the identity of family members, has been charged by U.S. Border Patrol with unlawful re-entry by a previously deported or removed alien. His supporters say he should never have been taken into custody by Border Patrol because the state trooper allegedly violated a directive from Gov. Andrew Cuomo and State Attorney General Eric Schneiderman. That directive, distributed to troopers in the form of an executive memo within the force, instructed troopers to refrain from asking about immigration status when investigating non-criminal activities. In September 2014 Cuomo launched an initiative to protect undocumented immigrants from police actions where non-criminal offenses are involved. The initiative became official police policy.

Since the man’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 will also be 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.

In March, Cuomo launched the Liberty Defense Project, the nation’s first public-private immigrant legal defense initiative, to respond to the surge in demand for help that is overwhelming nonprofit organizations serving immigrants. The partnership is supported by more than $10 million in funding to offer legal assistance and representation to immigrants in New York, regardless of their status, through a statewide network of attorneys and advocacy organizations.

Cuomo has also launched NaturalizeNY, the first public-private partnership of its kind to encourage and assist eligible immigrants in New York State with becoming U.S. citizens.

New York State Police have confirmed the incident is under investigation internally, but no other information has been released by that agency. The Chronicle-Express has filed a Freedom of Information request for details about the investigation. Citing a high volume of requests, the records access officer says a written response will be issued by Dec. 8.

As previously reported, at about 11 a.m. June 29, 2017 a New York State trooper who was reportedly assigned to the Yates County area on a temporary basis, 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 trooper asked two back seat passengers for identification. When the passengers were unable to provide ID, the trooper detained them and held them at the Dundee Trooper barracks for Border Patrol arrest and possible deportation.

A border patrol agent interviewed the subjects over the phone and arrived at the barracks at about 12:40 p.m., taking the individuals into custody at 12:45 p.m. and transporting them to the Rochester Border Patrol station.

According to court documents, during their investigation, border patrol agents discovered the man had been apprehended near Dresden by immigration officials in 2000. In 2002, he was granted a voluntary departure order, which he appealed. In 2003, the appeal was dismissed and he was given 30 days to depart, a ruling upheld in 2005. He was apprehended in 2006 and deported to Mexico, but he returned to the U.S., crossing the border for the second time in his life with the help of a smuggler.

He is asking for the charges against him to be reduced to a misdemeanor so he can continue to petition for legal status in the United States. His next court date is Oct. 23.

He and his wife, who came to the United States together as a young married couple so many years ago, have both been trying to achieve citizenship, but now she has told their lawyer to put all efforts into helping him. She says their lawyer has explained that her husband will have to be deported to Mexico and apply for a Visa to return.

Now, while she would want to be with him in Mexico if he is deported, she doesn’t want to leave her three children who are U.S. citizens, but she is also nervous. “I don’t feel free to go anywhere...I am here only for work. I don’t want to do anything bad,” she says.