This man's deportation is testing Trump's murky stance on DACA

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Story highlights

  • DHS disputes that Juan Manuel Montes Bojorquez, 23, was deported from California to Mexico
  • His lawyers say he had active protection under deferred action, but DHS says that was voided

(CNN)A dispute over whether the US government deported an undocumented immigrant with protected status heated up Wednesday, as the Department of Homeland Security released further details about the case.

Lawyers for the man now in Mexico say their client was apprehended by Border Patrol and deported on February 18. DHS said Wednesday that never happened.
In a lawsuit released Tuesday, lawyers for Juan Manuel Montes Bojorquez allege that the 23-year-old was deported from California to Mexico on February 18, despite having active protection under the Deferred Action for Childhood Arrivals program.
    Lawyers claim that Montes had renewed his DACA status, a protection for undocumented immigrants who were brought to the US as children initiated under the Obama administration, in 2016, which would keep him protected until 2018, according to the lawsuit filed under the Freedom of Information Act.
    The case has put in sharp focus the murky position of the Trump administration on DACA. DHS has continued issuing the permits, though Trump pledged to end the program during the 2016 campaign.
    While the administration has said that it respects DACA and that no one with active status would be deported, advocates are using the case to call into question whether DHS is being honest about its position.

    The case

    While DHS initially said Tuesday they had a record of Montes' DACA expiring in 2015, they released further information Wednesday saying he did, in fact, have DACA status until 2018.
    The problem, though, is on the part of the story both sides agree on: Montes tried to sneak back into the US on February 19 and was caught by Border Patrol. DACA requires individuals to get pre-clearance to leave the country, and so Montes' re-entry then showed he had left without authorization and voided his status, DHS said.
    "Mr. Montes-Bojorquez lost his DACA status when he left the United States without advanced parole on an unknown date prior to his arrest by the US Border Patrol on Feb. 19, 2017," said DHS spokeswoman Jenny Burke in a statement. "According to his interview with the Border Patrol, conducted in Spanish, he entered the United States on February 19, 2017, and he acknowledged that he understood the questions that he was being asked. Departing the country without advanced parole terminates the protections Montes-Bojorquez was granted under DACA."
    Montes' attorneys, however, said they stand behind his account of the story.
    "Juan Manuel has been unequivocal in his assertion that he never voluntarily left the country while he had DACA. We believe him," said Nora Preciado, a staff attorney with the National Immigration Law Center and co-counsel on the case. "We filed a FOIA lawsuit to get answers."
    In a statement, the Mexican government said it had been in contact with Montes to offer assistance and called for an investigation to ensure Border Patrol acted properly.

    Trump administration stance

    White House press secretary Sean Spicer was asked Wednesday to clarify the administration's position on deporting non-criminal undocumented immigrants in the wake of the case.
    Spicer said the administration "first and foremost" is concerned about dealing with people who have committed crimes or "are a threat to public safety," and referred questions about Montes to DHS.
    "That situation is evolving right now," Spicer said. "I would not rush to judgment."
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    DHS also noted that Montes had a previous conviction for shoplifting in 2016 that resulted in probation, a fact the lawsuit admits. His lawyers say the conviction would not disqualify him from DACA, which requires a background check.
    The agency also disputed another fact of Montes' case, regarding when he entered the country. Montes' attorneys say he came to the country when he was 9 years old, roughly 13 years ago. But DHS says the first record they have of Montes is in 2010, when he entered the US and agreed to a deal that allowed him to avoid expedited removal. He was then cleared for DACA four years later.
    Homeland Security Secretary John Kelly has said categorically that no one who has current DACA status has been detained or deported under the program.
    Several individuals who were previously recipients of DACA have been detained by DHS, but the agency has said their status either expired or was nullified by what they claim was criminal activity.
    "We have not picked up -- I don't care what you read or what people say -- we have not in my time picked up someone who is covered by DACA," Kelly told reporters on Capitol Hill after meeting with Senate Democrats in late March.
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    Congressional reaction

    Democrats in Congress immediately seized on the lawsuit, which claims that Montes was apprehended and sent to Mexico within three hours because he did not have his DACA paperwork on him. The lawsuit says that while in Mexico, Montes was assaulted and fearing his life, illegally crossed into the US again, where he was apprehended and detained before being removed once again to Mexico.
    If Montes had active DACA status, he would be the first such recipient deported despite the protection.
    "The promise that our government made to all the DACA recipients, including Juan Manuel, is at stake," Preciado said. "These young folks came forward, they filed paperwork, they got their background checks done, they paid their fees and in exchange, the government promised them that they did not have to fear deportation -- that they could get work authorization to continue their lives, to study and work, that they wouldn't be summarily deported, and yet here we are."
    Dick Durbin, the No. 2 Democrat in the Senate, said he was disturbed by reports that someone with DACA status had been deported.
    "I've contacted DHS to demand an explanation. Just last month Secretary Kelly promised me that no one with DACA would lose this protection unless they violated the terms of DACA. I intend to hold him to this commitment," Durbin said in a statement.
    House Minority Leader Nancy Pelosi went further, calling the report "appalling."
    "Another promise cruelly broken by President Trump, this one with heartbreaking consequences for brave young DREAMers across the nation," Pelosi said in a statement.
    One supporter of the move, though, was hardliner Rep. Steve King, a Republican from Iowa who supports vastly restricting the flow of immigration into the US and has a history of controversial statements about immigrants.
    "First non-valedictorian DREAMer deported. Border Patrol, this one's for you," King tweeted, with a link to the story and picture of a beverage.
    The lawsuit says that Montes has cognitive disabilities due to a traumatic brain injury suffered as a child, but graduated high school by taking special education courses and had enrolled in community college, though he was working as a farmhand prior to his deportation.
    CNN's Rosa Flores contributed to this report.