Deported Father Returns to Fight For His Children in Exceptional Case

Felipe Montes is one of thousands of deported or detained parents fighting to keep custody of their U.S. citizen children. He has won a rare chance at the due process child courts grant everyone else.

By Seth Freed Wessler Aug 03, 2012

Carrying only a small navy duffle bag, Felipe Bautista Montes walked off US Air flight 828 from Mexico City on Wednesday night, through an international arrivals gate at the Charlotte, N.C., airport. Two federal agents with ICE badges and guns on their belts followed close behind. Montes’ face, framed by his tightly pulled back hair, remained stoic, glancing back at the agents as he walked–he didn’t trust they’d actually let him go. The last time he was in the custody of ICE agents, indeed the last time he was in the United States, he was in shackles and they were deporting him.

Montes shook hands with two men sent by the Mexican consulate to meet him and then waited as one ICE agent leaned down and pressed a button on a black box attached tightly to Montes’ ankle. The other agent opened a laptop and booted up a program that tracks the device. The box beeped a few times and then stopped. "It’s just to make sure he doesn’t take off to Washington State or somewhere," the agent said.

The agents bid goodbye and loaded into an unmarked, black SUV. Montes walked to a car with the consulate staffers, who drove him to Sparta, N.C., the small, agricultural Appalachian town where his wife, Marie Montes, and three children live. His children are in foster care and he’s here to fight to put his family back together.

Montes’ return is an unlikely and extraordinarily rare development, in a case that’s gained national attention and made its way to the upper echelons of the federal immigration agency.

Montes’ deportation 21 months ago, after being detained for repeated traffic violations, tossed his family’s life into free fall. His three young U.S. citizen children were removed from his wife’s custody after a court decided she could not care for them alone, and they’ve been in foster care since, split between two different homes. When Felipe Montes arrived late Wednesday night in Sparta, he did not see his children; they slept in bedrooms a few miles away in those other homes.

Montes was recently granted permission by ICE to enter the U.S. for 90 days, following a protracted application process. The humanitarian parole, as it’s called, is a grant nearly unheard of in immigration law. Officials at the Mexican consulate, who requested the parole, were unable to cite another example of someone who’d been deported being allowed back into the country. The parole will allow Montes to take part in a family court hearing scheduled for August 10, where a judge is likely to decide what’s next for the family.

Montes hopes the ticking 90 days will provide him time to reunify with his children. "I’ve spent every moment when I’m not working thinking about them," Montes told me yesterday. "Now I’m here."

The decision provides Montes with a fighting chance to get his kids back. But though there are thousands of parents in similar situations, deported and at risk of losing their kids to foster care and adoption, the ICE humanitarian parole process for people like Montes appears to be clunky and underutilized, despite clear federal authority to grant it to those with a pressing need to enter.

‘I’m Gonna See My Kids Today’

Felipe Montes was restless through the night at the home where Marie Montes now lives–a small rented unit that she shares with her aging father. The ankle monitor made it hard to get comfortable; it will remain on his leg until he leaves.

But in the morning he looked energized. "I’m gonna see my kids today," he said as he emerged from the front door, followed a few minutes later by Marie, her makeup swept over her pearl skin and died-blond hair clipped down. "Okay baby, I’m ready," she said.

The couple walked down the road to the dollar store. Felipe wanted a few toys to give his two older children, whom he hoped to see later that day at their daycare. In the store, the pair fell quickly into the routines of coupledom, going back and forth about which toys to buy. "Well, you know better what boys like," Marie said, as Felipe held a yellow plastic dump truck. "You think they’d like that?"

Felipe Montes has not seen his two older boys since he was deported, and he says, "I’ve never met the baby, but I love him." When Felipe was detained, Marie was pregnant with their third child, and she was left to care for their two older boys, then 2 and 4-years-old. But Marie has long struggled with significant mental health issues and says she’s abused drugs as well. Soon after ICE officers hauled her husband out of the county court–where he thought he’d been summoned to merely pay a fine for his driving violations–the two older boys were placed in a foster home. When the baby was born, he was taken too, kept in the hospital for a time and then handed off by the child welfare department to a different couple. Marie has tried to get her kids back, but the county court decided she wasn’t complying with the reunification plan and stopped her visits with the kids.

With no chance the kids could be reunified with their mother, all Felipe Montes’ attention has turned to fighting to have the children sent to live with him in Mexico. But rather than consider placing the children with Montes and his family in Mexico, the child welfare department kept them in foster homes in North Carolina, noting in documents only that he’d been deported. The children’s advocate in the court recommended adoption for the boys and the foster parents quickly said they wanted to keep the kids. The case was moving in that direction until last November, when Montes’ court appointed attorney began vigorously to argue that the children be placed with him.

Montes has never appeared in person at a hearing about his parental rights, because he’s not been allowed into the country. A few times, he’s been patched in through Skype, but for the most part, decisions about the future of his family have gone on without him.

In February, following’s coverage of his case and the gathering of over 21,000 signatures on a petition in support of the family’s reunification, the Mexican Consulate in North Carolina hired a private law firm to apply for humanitarian parole.

The Department of Homeland Security grants humanitarian paroles to people in emergency situations, like foreign nationals who need U.S.-based medical care or for kids kids orphaned by the Haitian earthquake. But the paroles are few and far between for people who’ve have already been deported.

Ann Robertson, the immigration attorney hired by the Mexican Consulate in Raleigh, says that when she began the application process in early May, she was not expecting ICE to grant Montes parole.

"ICE didn’t know what to do with a touchy feely humanitarian parole like this," Robertson said. "Part of the reason it took so long is that they had to develop procedures." She’s sure the parole would never have moved ahead had the case not made headlines.

"This case had lots of attention," said Robertson, of the nationwide media coverage of the case after broke Montes’ story in February. "The whole country is watching it and I’m not going to pretend that 21,000 signatures didn’t help. I think that there is some interest among people in the upper levels of the immigration service."

An Unprecedented Reprieve?

ICE did not respond to’s request for data on the number of humanitarian paroles it’s granted to previously deported people. But Carlos Flores, the consul general of the Mexican Consulate for the Carolinas, says, "This is the first time in my 11 years here that we’ve been successful in bringing someone back on humanitarian parole through the same agency that deported them. We’ve gotten people here for short periods who just need to come into the country, but never someone who’s been deported."

Last week, Montes answered his cell phone and Ann Robertson’s assistant delivered the news that he’d be granted the 90-day humanitarian parole. At 7 a.m. on Monday, Montes boarded a bus from Tamaulipas to Mexico City. By mid-morning on Tuesday, he had travel documents in hand. He waited another night and then headed to the airport. "I won’t believe this until I’m there," he said by phone at the time.

While ICE appears to have rarely issued humanitarian permissions for deported parents, other immigration agencies have been more amenable to granting parole.

Judge Oscar Gabaldon presides over the Child Protection Court in El Paso, Texas. "We try to run our court like the border’s not there," he told me. Through the window in his office, the massive border fence partially blocks the view of Juarez, Mexico, a few hundred feet away. "If we don’t, we’re running up against a conflict with your constitutional rights to be present at any legal proceeding that affects a parent/child relationship."

The courts in El Paso have established a formal agreement with Border Patrol there and Gabaldon says that each month, four or five parents will be allowed to cross from Mexico to attend a hearing in his court. "It’s a basic due process issue," he says. "Geography makes that work." Gabaldon sends his bailiff to the border crossing and the bailiff returns with the paroled parent.

But most parents like Felipe Montes who’ve been deported and have children in foster care have to fight for their kids from thousands of miles away. That puts them at a significant disadvantage. In an investigation last fall, found that an estimated 5,100 children whose parents are detained or deported are currently in foster care.

Donna Shumate, who represents Montes in child welfare proceedings court, had never actually talked to her client in person until yesterday, and she says she’s struggled to understand Montes’ thickly accented English when they talk by phone. They’ve rarely communicated, even as she’s vigorously represented him. "That makes it very hard for us in court," Shumate said in her Sparta, N.C., office. "It changes everything now that he’s here."

Yesterday, carrying the toy trucks and a bouncy ball, Montes opened the door to the daycare in hopes of seeing his kids.

"I’ve been thinking about this a long time," he said in a hushed voice. The lights were dimmed and a lullaby played loudly on a speaker. It was naptime and Montes told a daycare worker that he’d like to see the boys. The worker smiled and slipped into another room and returned a few minutes later without the kids. "I called and you’ll have to get permission from the child welfare department first," she said. "I’m sorry."

Not everything has changed.