A federal judge repeatedly criticized by President Donald Trump during the campaign could order the administration to return to the United States a young man who claims he was improperly deported to Mexico.
US District Court Judge Gonzalo Curiel, an Indiana-born jurist of Mexican heritage who became a lightning rod for Trump last year over his handling of a lawsuit against Trump University, on Wednesday presided over one of the more high-profile challenges to the administration's immigration agenda.
A decision was not reached and Montes' immediate return appears unlikely.
Curiel, once dismissed by Trump as a "hater" and a "Mexican," has called for a trial to determine whether Juan Manuel Montes Bojorquez, 23, was improperly deported from California to Mexico earlier this year despite protection under the Deferred Action for Childhood Arrivals program, also known as DACA.
That could mean ordering that Montes be returned to San Diego for the hearing.
"I would be inclined to direct that he be paroled into the United States absent some exceptional circumstances," Curiel said at a hearing Tuesday. "I would like to observe the demeanor of the witnesses. I would like to determine what they have to say."
Still, Montes' return isn't imminent.
Justice Department attorney Aaron Goldsmith said the government was prepared to have Montes paroled the day before trial and suggested he be deposed at a port of entry.
Curiel agreed, saying that technology allowed Montes and lawyers to confer from afar.
'Getting to the bottom of what happened'
Monica Ramirez Almadani, one of Montes' lawyers, said after the hearing that she expected the trial to be held in the coming months.
"What's very clear from today's hearing is the court is very interested in getting to the bottom of what happened to Mr. Montes," she said.
The lawsuit, brought under the Freedom of Information Act, has become a flashpoint in the Trump administration's immigration policy and the President's own evolving position on DACA.
"As the judge indicated today, Mr. Montes has a right to see what evidence there is -- not just the word of the government," Nora Preciado, a staff attorney with the National Immigration Law Center, said after Wednesday's hearing.
Trump's criticism of the judge drew some of the loudest accusations of racism that the then-candidate faced during his campaign, along with several repudiations from prominent Republicans.
Lawyers for Montes have said their client was apprehended by Border Patrol and deported on February 18. DHS has said that didn't happen and there is no record off the deportation.
"I have yet to see a case similar to ours, as to an individual being removed by US law enforcement authorities and there is not one piece of paper, there is not one note, there is not one iota of evidence to memorialize that an individual was removed from the United States," Curiel said.
Ramirez this week asked the court to allow her client to return to the United States for the proceedings.
"We want him back in the United States," she said. "We want him to be with his mother, his 3-year-old brother. He has been outside of the country for more than six months now. He is suffering incredible harm."
In April, DHS initially said it had a record of Montes' DACA status expiring in 2015 but later released information indicating that he did, in fact, have DACA status until 2018, which backs up a claim by lawyers for Montes.
But Montes tried to sneak back into the United States on February 19 and was caught by Border Patrol.
DHS disputes facts of Montes' case
DACA requires individuals to get preclearance to leave the country, and so Montes' re-entry showed he had left without authorization and voided his status, DHS said. He was sent back to Mexico the next day, where he is now.
The administration has said it respects DACA and that no one with active status would be deported, but advocates are using the Montes case and others to call into question whether DHS is being honest about its position.
The lawsuit seeks records about Montes' interactions with Customs and Border Patrol, including patrol logs and surveillance video.
Lawyers claim Montes had renewed his DACA status, a protection for undocumented immigrants who were brought to the United States as children initiated under the Obama administration, in 2016, which would keep him protected until 2018, according to the lawsuit.
DHS has noted that Montes had a previous conviction for shoplifting in 2016 that resulted in probation, a fact the lawsuit admits. His lawyers said 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 said he came to the country when he was 9 years old, roughly 13 years ago. But DHS said the first record they have of Montes is in 2010, when he entered the United States and agreed to a deal that allowed him to avoid expedited removal. He was cleared for DACA four years later.
The lawsuit said 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.
Trump was condemned by Democrats and Republicans alike last year after he criticized Curiel's rulings in the Trump University case and attacked Curiel personally.
