A Mexican national living nearly a decade in the Bitterroot Valley will likely be deported after he was sentenced Monday in federal court in Missoula for illegal re-entry into the United States despite allegations by his family and attorney that he was apprehended unlawfully.
Roberto Cruz Cisneros, 45, was sentenced to time served, about five months in custody, and released to the federal officials to begin the deportation process, splitting him from his family, who watched from the courtroom gallery in tears.
Immigration attorneys say defending these cases is difficult, in large part because of the Fourth Amendment of the U.S. Constitution, which protects citizens from illegal search and seizure, does not provide protections to a suspect's identity in the same way it does for physical evidence.
Shahid Haque, an immigration attorney in Helena who represents Cisneros and his family in his upcoming deportation proceedings, told the Missoulian in an email Monday that police stopped Cisneros' vehicle in February as he was headed to his home in Hamilton for "no discernible reason." The officer did not indicate to Cisneros that he had violated any laws, but took his identification, asked him where he lived and let him go.
A month later, Immigration and Customs Enforcement (ICE) and Hamilton police showed up at his home to arrest him on the charge of illegal re-entry after an order of deportation, Haque said.
Additionally, Cisneros' family told the Missoula Independent's Susan Shepard last week the ICE agents who arrested Cisneros produced no warrant for his arrest and entered their home without explicit permission.
Such allegations by the defendant's family may kill a case if that defendant was, for example, facing distribution charges and agents unlawfully seized drugs. But in cases like these, the Supreme Court has ruled that a person's identity can't be kept out of evidence, even if law enforcement conceded that an unlawful arrest, search or interrogation occurred.
"So even though the Hamilton police officer had no right to pull Roberto over in the first place, he was allowed to pass his name and address to ICE to have him arrested," Haque said in an email to the Missoulian. "This is fundamentally unfair, as it allows the police to benefit from violating a person's rights and encourages more violations."
During Monday's sentencing, U.S. District Court Judge Dana Christensen named the ways Cisneros had been a productive member of the community as a hard worker, "outstanding" father and as a taxpayer.
Last deported from the country in 1999, Cisneros returned in 2011 and has been living and working in the Missoula and Bitterroot Valley areas since.
"He returned to this country to be with his family," Christensen said. "That, in a nutshell, is what I have before me. … But unfortunately, he is in this country illegally."
Before handing down the sentence, Christensen asked Cisneros if he wanted to make a statement to the court.
"No," Cisneros said through an interpreter. "I'm in your hands now."
Robert Gentry, a Missoula attorney who works with Montanans for Immigrant Justice, said those under scrutiny of immigration law should always ask to see warrants and proof of identification as law enforcement. And in regards to the Fourth and Fifth (the right to not incriminate oneself) amendments, those rights extend to all persons, not just U.S. citizens, so there is no law compelling anyone to identify themselves to law enforcement or allow them into their home, Gentry said.
"You have no obligation under the law to open your house to that person," Gentry said. "They have no right to forcibly enter your home unless there is a court-ordered warrant issued specifically to search the home."
In the federal complaint, an ICE agent from Kalispell reported Cisneros was deported twice before: from Utah in 1996 and again in 1999, after serving a 14-month federal prison sentence following an illegal re-entry conviction in Arizona.
The agent's report mentions the police stop in February, but does not identify any reason why Cisneros' vehicle was stopped. In that stop, Cisneros reportedly produced an identification from Mexico. The police officer then provided Cisneros' information to Homeland Security Investigation agents in Kalispell.
The complaint states agents "encountered" Cisneros at his home at 6 a.m. on March 21. In an interview with police, Cisneros reportedly told agents about more than one occasion when he paid a human smuggler to help him enter the United States, including a $2,500 payment to get into the country in 2011, according to the federal complaint.
As his family has gone through the past five months without the primary breadwinner, Laura Folkwein, co-director of Montanans for Immigrant Justice, has gotten to know the family.
"I think people have really come together around them," she said after the hearing, which she attended with the family. "I think it can make a big difference, and help give them a feeling of support."
Cisneros' family circled around his federal defender Andrew Nelson after the hearing on Monday with questions: Where will he be sent next? What's going to happen to him in the coming days? There were no immediate answers, but the anxiety was visible in their faces.
Indeed, Cisneros did commit a crime in coming back to the U.S. after his last deportation without going through the proper channels. Folkwein surmised it was the reward that outweighed the risk.
"Any parent would go to great lengths to be together," she said. "He did what he had to do and as a result has been a contributing member of the community."