Year
Jonathan Paz looks like he's having a staring contest with his office desk. He interrupts his tense glaring with periodic Post-it note scribbling and computer scrolling as he grips his phone and listens to a Department of Homeland Security attorney argue that his client, Mackenley Montfleury, should stay locked up in the Aurora, Colo., Detention Center until the federal government decides whether he should be deported.
"Your honor, first of all, it appears to me that counsel is just trying to generalize a criminal record," Paz tells Immigration Court Judge Elizabeth McGrail. "That's not what the law says."
Paz is the only member of this conversation who is not in Colorado. Montfleury, McGrail and the DHS lawyer are all in Aurora; Paz is pleading his case from his Salt Lake City office via telephone. He gets more and more exasperated as the conversation drags on. Two of Montfleury's three drug possession charges have either been dismissed or the pleas withdrawn, Paz tells the judge. "Mr. Montfleury is now not even deportable," Paz says. "So, I'm not even sure why we're having a conversation about bond, because he, at this point, should just be released."
Montfleury has been in the detention center since October. "It feels a lot longer," the 27-year-old says during a recent phone call. "It feels like a year, an eternity."
The Haiti native passes the time by reading—he says his pace is four books a week—and talking with his cell mates, fellow intellectuals from African and Caribbean countries. They talk through their anxiety and lend each other money for the commissary, whatever they have to do to get through the day. "Each of them are kind of looking out for one another," Montfleury says.
"I've met some of the strongest, some of the bravest young men in here, and I've watched them break down because their situation is so stress-induced," he adds, his faint French accent barely carrying over the din of the detention center. "They don't know what's gonna happen, if they're ever gonna see their family ever again, if they're getting deported."
From Port-au-Prince to Orem
The explosion shook the concrete house so hard that it woke 9-year-old Montfleury one late 2000 evening. His ringing ears were still pounding when his mother, Marie Micheline Montfleury, rushed into the room he shared with his brother and told the boys to move to her bedroom. As he trudged down the hallway, Mackenley spotted his father, Joseph, pointing a revolver at the door, waiting for someone to bust through and try to end their lives.
Six months earlier, Joseph Ernst Montfleury unsuccessfully ran for a seat in the Haitian legislature. For months, the government had been cracking down on the opposition's protests, killing dissidents who challenged the election's legitimacy. "They planted bombs everywhere," he remembers. "And they planted a bomb in my own house."
Smoke filled the Montfleury family's Port-au-Prince home after the detonation. The patriarch didn't need to use his gun that night. No one was seriously hurt, but the constant state-sponsored violence and death was enough to make him realize that he had to leave Haiti to keep his family safe.
"It was time for me to get out because the situation was getting worse and worse and worse and worse," the senior Montfleury says. He kept his head down for two years before fleeing to the U.S. in 2002. He was quickly granted asylum. His wife and children joined him shortly after. They built new, austere lives in Orem, a far cry from the relatively posh ones they had led in Haiti's capital city.
"In my country, we were someone," he says wistfully from the living room of his cozy Utah County home. In Haiti, his four kids attended a prestigious private school. Maids helped them get dressed and prepared their food. Montfleury had a driver who transported him around the city and to the classrooms where he taught chemistry. Now, the couple work at a local grocery store. They drive themselves everywhere. There are no more servants. They've created proud, modest lives in a strikingly different country than the one in which they were born.
As Mackenley Montfleury grew older and reached his teens and 20s, he rebelled and experimented with marijuana. He held customer service and sales jobs, graduated from Orem High School and took classes for two years at Utah Valley University. He joined The Church of Jesus Christ of Latter-day Saints. He routinely cooked and cleaned the house, completed a hunting course and asked his mother if she could pay for him to take a drawing class—he wanted to get better at one of his favorite hobbies.
But their son also got in trouble with the law. He picked up a few misdemeanor drug charges. His father told him that if he didn't respect the house rules, he would need to leave. So, he moved out.
"It's possible Mackenley received so much shock from Haiti," his dad says. "It's a shock. Leaving his country, leaving his friends, leaving everything."
Then came the fight.
A few days before Thanksgiving 2017, Marie Micheline Montfleury called her son to check in. He hadn't had a place to live after getting kicked out of his family's house. "He said, 'Mom, I'm hiding downstairs,'" she recalls. He was in a closet. He could smell her cooking. Could she bring him some food?
The matron went to sleep early that night to rest for her shift at the local Harmons the following morning. While at work, her daughter called and told her to come back right away. There was some kind of emergency. When she got home, her daughter was talking to a police officer. There had been an altercation and the cops were called.
Mackenley Montfleury had fallen asleep after eating the previous night. When his dad found him, he told him to leave. Mom remembers her son saying the whole thing had been an accident. He'd hit his father on his way out of the house. There had been a scuffle, but someone held dad back while Mackenley ran away.
"We didn't even think about that because we know he is here legally," Joseph Ernst Montfleury says of his decision to call the police, "and we don't even think ICE will get involved."
An Extended Stay
Still arguing over the detention, Paz asks the judge to set his bond at $1,500 so he can fight his deportation case from outside the confines of a cell. To justify the low bail, Paz has to convince the judge that his client won't run once he gets out—a non-issue, Paz assures her, because the family lives in Orem, a town he's called home for nearly two decades—and isn't a threat to the general public.
"Simply violating the law does not make someone a danger to their community," the attorney says, standing up to face the barren, gray wall in his office. Montfleury has been charged with misdemeanor marijuana possession, Paz explains, not theft. He hasn't threatened anyone with a knife, or beaten someone with a weapon. "This isn't someone that's hurting anyone."
Paz' voice rises a few octaves as he explains that for all of the younger Montfleury's previous convictions—possessing a controlled substance and paraphernalia, drinking alcohol when he was underage—the local prosecutors never saw fit to keep him behind bars for more than 30 days. They don't think he's a menace to society. So why should the immigration court keep him detained for months while he waits for the feds to decide whether he can stay in the U.S.?
The line goes dead. "I think they hung up on me," Paz says, sighing.
The phone rings after a few seconds. Paz immediately atones. "I'm sorry, your honor, I know I can be loud and verbose."
"I think we're going to have to agree to disagree here," McGrail says. The assault, the drugs—those criminal charges make her nervous. She denies bond, but reserves Montfleury's right to an appeal. He'll need to remain in the Centennial State, hundreds of miles from his family, as he waits for a judge to rule on whether he'll be sent back to Haiti.
Paz sits back down and puts his head in his hands. He runs his fingers through his wavy brown hair. "Hang on, I need a minute," he says. He stands again to take a quick lap down the hallway, trying to burn the adrenaline that had animated his 20-minute phone call. Paz is still trying to work out what just happened as he paces through the office's common area, asking no one in particular, "Over drug charges?"
Shifting Priorities
Things were different under President Barack Obama. Some called him the "Deporter in Chief"—more than 2.5 million people were removed from the U.S. under his administration—but Obama officials told Immigration and Customs Enforcement agents to focus on removing people who'd been convicted of violent crimes, joined a "criminal street gang" or posed a threat to national security. They prioritized immigrants whose presence reached a certain threshold of danger for their communities.
"Under the Trump administration, it's kind of anybody with crimes," Melissa Moeinvaziri, an immigration attorney at the West Jordan-based Perretta Law Office, says.
A few days after taking office, President Donald Trump signed an executive order that vastly expanded the groups of immigrants that ICE prioritizes for deportation. Among those targeted are people "convicted of any criminal offense," "charged with any criminal offense," or who have "committed acts that constitute a chargeable criminal offense."
Essentially, local immigration attorney Dan Black says, ICE can put any undocumented immigrant who has entered the criminal justice system into deportation proceedings. "These priorities are so broad that you're saying everyone is a priority," he says.
Montfleury is not an undocumented immigrant. He got his lawful permanent residency (LPR), or green card, in 2005. But Paz says his potential deportation is also a consequence of Trump's broadening of ICE's priorities. "Mackenley would not be in these proceedings under Obama," Paz says. "It just wouldn't be happening."
The bar for deporting LPRs is higher than it is for removing people who are not legally allowed in the U.S. Immigrants who possess a green card are considered "deportable" if they have been convicted of certain offenses involving domestic violence or drugs, or two or more "crimes of moral turpitude"—an ambiguous term described by members of the Board of Immigration Appeals as something that "shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality."
Black, an associate attorney at South Salt Lake's Stowell, Crayk and Bown, says he hasn't noticed an uptick in LPR deportations, but he sees a change in how their cases are handled once removal proceedings are filed. DHS lawyers can no longer exercise their judgement and back off deporting longtime residents convicted of low-level crimes. "They have been stripped of basically any and all prosecutorial discretion," Black says of DHS counsel. "They're forced to continue and try and deport these folks, regardless of what the mitigating circumstances would be."
Reached by phone Tuesday afternoon, an ICE spokesperson told City Weekly that DHS attorneys continue to exercise prosecutorial discretion.
Montfleury's predicament is a more complicated Gordian Knot than merely being a victim of Trump's deportation machine. The reasoning for his detention is a nexus of the immigration and criminal justice systems, a perfect storm of ineffective counsel, bureaucratic buffoonery and a long wait for a potentially predetermined outcome.
A Death Sentence
Over his dad's objections, Orem prosecutors filed charges against Montfleury. According to a story in The Salt Lake Tribune, he pleaded no contest last November to misdemeanor assault and marijuana possession. Paz says his client served a 30-day sentence before ICE agents transported him to the Aurora Detention Center, where he has remained since.
Joseph Ernst Montfleury wrote a letter to the immigration court last September. He reminisced about camping and fishing trips they took together, the "tender notes" his son would write him for his birthdays, how he and his wife helped their son buy his first car. "He needs help, not rejection," the elder Montfleury tells City Weekly, a pile of paperwork spread across his living room table— family pictures and old projects Mackenley submitted for school assignments. "We understand that bad things can happen; but that doesn't mean he is a bad person."
Mackenley Montfleury's detention and potential deportation are complicated by additional misdemeanor convictions in two neighboring Utah County towns. "It just doesn't make sense to me that you would try to deport a lawful permanent resident over these low-level crimes," Paz says. "He's just a dummy whose dad and him have not gotten along for a while, and he got kicked out of his house for not following their house rules, so he's on the street, and he's doing stupid things."
Paz is trying to get the pleas withdrawn, vacated and dismissed. Two public defenders have signed an affidavit or filed a plea withdrawal motion indicating they did not warn his client that taking a plea could affect his immigration status. That's in violation of a 2010 Supreme Court decision that requires defense attorneys inform their clients when a conviction carries a risk of deportation. According to the Tribune story, Orem Prosecutor DJ Summers argued in court that the plea agreement papers Montfleury signed contained language that warned his citizenship could be affected. The Orem City Attorney's Office, which only prosecutes misdemeanor cases, did not respond to City Weekly's request for comment.
If all the convictions stand, Montfleury could be deported. Lawful permanent residents are allowed one conviction for possessing 30 grams of marijuana or less—Paz says two of his client's three misdemeanor marijuana convictions have either been dismissed or their pleas withdrawn, meaning he is no longer deportable. But DHS is still opposing the attorney's motion to terminate immigration proceedings because of a single possession instance.
What's more, Paz says, Montfleury qualifies for cancellation of removal, thanks to his green card, so his deportation is unlikely regardless. What frustrates him is how callous prosecutors are in giving a "son of the community" a plea deal that could get him kicked out of the U.S., and the waste of taxpayer funds to charge, house, feed and try Montfleury's cases in federal immigration court, "only for him to end up getting out anyway. So, not only are you trying to deport someone you probably shouldn't, you are also wasting our money."
City and county prosecutors are not federal agents. It isn't their responsibility to enforce immigration laws. "Our job is to provide a measure of safety and proportionality of justice at the local level," Salt Lake County District Attorney Sim Gill says. "As a prosecutor, I think it's important for us to consider, 'How do we define justice?'"
Prosecutors walk a fine line between keeping their communities safe and ensuring the plea deals they strike and sentences they seek do not impact any one defendant more than another. A prosecutor's definition of justice can vary between cases. They can seek punishments that don't place immigrant defendants at risk of deportation. "This doesn't mean that because of your status, that you should get a different outcome than our citizens," Gill, who didn't play a role in this case, points out. "I think the point is if you are not getting an outcome just like your citizens. That's the concern."
For many people, deportation is worse than serving jail time, Paz says. "You can't be in the country you want to be in, a lot of times where your family is, and where everything you know is." Deportation could also make a person vulnerable to violence; many asylees fled their own countries out of fear for their and their family's lives. Joseph Ernst Montfleury warns that his son could be hurt or held for ransom if he were sent back to Haiti. "It's like a death sentence," he says. "It's true."
Gill understands that the intersection between crime and immigration is a polarizing topic. "People say, 'Oh, they're illegals, and illegals committing crimes need to be deported out of the country,'" he says. But sometimes people who have a legal right to be in the U.S. get snared into deportation hearings. Families can be separated and never see each other again.
"I think it's important for people to resist the urge to say this is a very simple, black and white issue," Gill says. "It's not."
Finding His Way
Joseph Ernst Montfleury last saw his youngest son in August. The memory was anticlimactic— Mackenley was on his way out the door when his dad was coming home from work. But the brief interaction left an impact. "I think I saw him as someone trying to do his best," he says, "to keep going and find a job, and to be self-sufficient."
Mackenley Montfleury was arrested the following month.
Family members have offered to give him a room once he gets out of detention, to help him get back on his feet. "We still love him, we still care, and we still have to figure out exactly how he can come back," the dad says. "We need him back."
Marie Micheline Montfleury tries to talk to her son every other day. Sometimes they discuss his case, but mostly she wants to make sure he's OK and healthy. "As a mom, I need to talk to him," she says. "In his voice, I can recognize when he's happy, when he's not. I don't have to see him, but I know when there is something wrong."
For his part, Mackenley Montfleury tries to stay positive and far away from the violence in the detention center. A few weeks ago, he says a fellow detainee was jumped by five people. They had to be taken to the hospital. Their unit was locked down for a few days. "There's some people that are under a lot of stress and dealing with different kinds of situations and circumstances," he says. He mostly keeps to himself or his cell mates, reading and sleeping to stave off the boredom and anxiety. He has a mantra—"try to stay positive."
Montfleury wants to go back to school and finish earning the engineering technology degree he started at UVU. He hopes people take time to understand his situation and not just write him off. "I just see myself as a young man trying to find myself in this world," he says. "I've made a lot of mistakes, a lot of bad decisions, but I don't think that I'm a bad person."
