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Undocumented Journalist Faces Uncertain Future After Detention

Jose Antonio Vargas, the country's highest-profile undocumented immigrant, was detained by Border Patrol officials in McAllen on Tuesday. Now all eyes are on the federal government, which must decide whether to begin deportation proceedings or let Vargas stay.

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For years, Jose Antonio Vargas has drawn attention to the plight of undocumented immigrants in the United States. Now, after being temporarily detained in Texas near the Mexican border, he faces an uncertain future, as he and supporters wait for the federal government to decide whether to deport him or let him stay.

Vargas, a Pulitzer Prize-winning journalist whose 2011 essay in The New York Times Magazine made him the most visible openly undocumented immigrant in the country, was detained by Customs and Border Protection officials Tuesday morning while trying to board a flight out of McAllen Airport. He was released at around 5 p.m. that evening. 

The Department of Homeland Security released a statement saying, "Mr. Vargas was transported to the McAllen Border Patrol Station where he was processed and provided with a Notice to Appear before an immigration judge. He was released on his own recognizance after consultation with Immigration and Customs Enforcement."

It will be up to federal immigration authorities to decide whether to initiate deportation proceedings.

“I’ve been released by Border Patrol,” Vargas said in a statement. “I want to thank everyone who stands by me and the undocumented immigrants of south Texas and across the country. Our daily lives are filled with fear in simple acts such as getting on an airplane to go home to our family. With Congress failing to act on immigration reform, and President Obama weighing his options on executive action, the critical question remains: how do we define American?”

Vargas, who immigrated from the Philippines when he was 12, had flown to McAllen to join a vigil for the undocumented immigrant women and children being housed in a shelter there. He wrote in an article for Politico that he might have trouble making it to Los Angeles to promote his new documentary, because his only identification was a passport from the Philippines with no U.S. visa. Border Patrol agents routinely check the immigration status of passengers at airports near the U.S.-Mexico border and operate immigration checkpoints within a 45-mile radius of McAllen.

“I am not sure if my passport will be enough to let me fly out of McAllen-Miller International Airport, and I am not sure if my visibility will continue to protect me — not here, not at the border,” he wrote.

As news of Vargas’s detention spread Tuesday, focus shifted to what the government would do. A CBP spokesman declined to comment beyond confirming that Vargas had been taken to the McAllen Border Patrol station.

The next step is for Immigration and Customs Enforcement, the Department of Homeland Security agency in charge of enforcing immigration laws, to decide whether to initiate deportation proceedings. Although Vargas, by his own admission, is eligible to be deported, ICE has discretion over whether to deport someone who has been detained.

“I think there’s a decent chance that prosecutorial discretion will be exercised favorably in this case,” said Denise Gilman, co-director of the Immigration Clinic at the University of Texas at Austin School of Law. The choice of whether to deport, she said, is based on factors like how long someone has been in the country; whether the person has a criminal record; and the extent of the person’s support in, and contributions to, the wider community.

“If an objective mind looked at the criteria that have been laid out in a variety of memos from this and prior administrations about the factors that should be taken into account, he would clearly fall under those criteria,” Gilman said.

The decision of whether to begin deportation is usually made within 72 hours, Gilman said. But even if the government decides to deport Vargas, that process could take years.

It’s unclear to what extent Vargas’ visibility will affect his case. Although he may have drawn attention to himself by writing and tweeting about his presence in McAllen, Gilman said she would have been surprised if he had been able to get on a plane to leave McAllen.

“What he is experiencing is absolutely, absolutely the norm, commonplace,” she said.

“While we’re glad that Jose Antonio has now been released, his arrest and detention prove once again that the Border Patrol is a rogue agency that should have determined that Jose was a low-priority case for detention and deportation,” said Cristina Jimenez, the national director of United We Dream, the immigrant-rights organization that hosted the McAllen vigil.

“Jose Antonio’s treatment by Border Patrol agents shows that the border is, in fact, secure if someone with his public profile is detained.”   

Disclosure: The University of Texas at Austin is a corporate sponsor of The Texas Tribune. A complete list of Texas Tribune donors and sponsors can be viewed here.

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