Army Captain Tim Brown and his husband, Sergio Avila-Rodriguez, are learning just how complicated, flawed, and untrustworthy the U.S. immigration system is.
Avila-Rodriguez was brought to the United States illegally from Honduras in 2001 at age 7 by his uncle. Last week, when he and Brown — who married in January 2017 and live in North Carolina — sought a marriage waiver as part of a process to obtain him legal status, he was instead detained for five days with plans to deport him back to Honduras, where he hasn’t been since he left as a child.
Their complicated story demonstrates how many hurdles there are for undocumented immigrants and how unreliable the process is even when taking all the proper steps.
After Avila-Rodriguez’s uncle brought him into the country, they traveled to North Carolina to stay with family. And as a result, the 8-year-old did not make it to Texas one year later for a subsequent hearing on his status, so there’s been an order to remove him in place ever since. That’s how Immigration and Customs Enforcement (ICE) justified detaining him last week. Fortunately, he has now appealed the 2002 order, which put a stay on its enforcement and allowed for his release — for now.
But Brown and Avila-Rodriguez had no reason to believe that he would be detained. In addition to pursuing a marriage waiver, the couple had previously signed a waiver for an order of supervision, which should have allowed Avila-Rodriguez to remain in the country. On Thursday, he had a meeting that was supposed to be a check-in related to that order, but instead he was arrested and detained. ICE had revoked the second waiver without telling them or explaining why.
“He reported May 10, at which time the decision was made to take him into ICE custody due to his status as an immigration fugitive and convicted criminal alien,” ICE said in a statement.
Avila-Rodriguez had been arrested on a misdemeanor drunk driving charge at age 21, ending his eligibility for DACA. He has never hidden this arrest, however, and the couple did not believe it would be a factor.
“Sergio’s quote-unquote crime … was being a 7-year-old who was brought unwillingly, of no volition of his own, to the U.S. by his uncle, and you want to take him out in shackles? It’s unbelievable to me,” Brown told Newsweek, adding, “To his mind, this is his home.”
Marrying a U.S. citizen does not automatically guarantee a path to citizenship, particularly for an undocumented immigrant like Avila-Rodriguez. For an immigrant who has travel documentation or DACA status, the process requires they return to their country of origin and apply for a green card through a U.S. embassy.
An immigrant without such documentation must still return to their country of origin, but may be barred from re-entering the U.S. for up to ten years. That’s where the marriage waiver comes in; it allows the non-citizen spouse in the marriage to return to the country without the delay when re-entering the country. The couple must demonstrate, however, that the citizen spouse will experience “extreme hardship” if the non-citizen spouse is not allowed to return to the U.S.
As many as 25 percent of these waivers are denied. A criminal record greatly increases the chance of that denial.
But Brown and Avila-Rodriguez originally had their petition approved, which is why they were optimistic there wouldn’t be such issues. Brown is astonished that anyone could be treated this way, let alone the spouse of a military service member. “I’ve served 10 years, I’ve served in two deployments, been to Afghanistan twice. I’ve done my work,” he told Newsweek. “But more than anything, I’m just frustrated we have a system that’s so broken.”
Brown has promised to use all the resources available to him to protect his husband and keep him from being detained again or deported. “I can afford an attorney,” he told the Herald-Sun this week. “I have contacts all over D.C. Only if you can move heaven and Earth, can you achieve what we’ve done. I have literary shaken heaven and Earth.”