DENVER (CN) - A Mexican immigrant who spoke out against the government both in the U.S. and her motherland of Mexico asked the 10th Circuit on Tuesday to allow her to a chance to finally challenge a 2013 reinstatement of a 2011 deportation order.

"We are now in the uncomfortable position where she is both early and late," attorney Mark Barr, who represented 54-year-old Jeanette Vizguerra-Ramirez in court, said.

"She's early for the withholding claim where there isn't even a decision, but she's late with the underlying removal order," Barr, who practices with Lichter Immigration in Denver, added.

After living in the U.S. for more than a decade, Vizguerra-Ramirez initially found herself in removal proceedings in 2009 after she presented fraudulent documents during a traffic stop. In 2011, an immigration judge denied her application to cancel a removal order, then granted her request to voluntarily depart. When she appealed, Vizguerra-Ramirez was granted a stay of the removal order through the appeal.

About nine months into proceedings, however, Vizguerra-Ramirez returned to Mexico to be with her mother on her deathbed- an action that unwittingly threw a wrench in the gears of her immigration proceedings.

In Vizguerra-Ramirez's view, returning to Mexico amounted to voluntarily departing the country as she was required. When she reentered the U.S. in April 2013, the government charged her with the misdemeanor of entering illegally and reinstated the 2011 removal order. In pursuing review of the reinstatement, Vizguerra-Ramirez has been granted several stays on the removal order, allowing her to remain in the U.S.

During Donald Trump's first presidency, she took refuge inside a Denver church for three years to avoid deportation and was named one of Time magazine's 100 most influential people. From December 2021 through February 2024, Vizguerra-Ramirez continued to obtain stays of removal.

As part of the Trump administration's second term tough-on-immigration policy, immigration agents targeted and detained Vizguerra-Ramirez last year, arguing she had violated a mandatory removal order in 2011.

Rather than satisfying the requirement to voluntarily depart in 2011, the federal government argues Vizguerra-Ramirez's departure invalidated her appeal - invalidating her 2011 stay and requiring her to leave January 2011, and creating an immediate retroactive violation, since she had been in the U.S. until September of that year.

Under that rationale, Vizguerra-Ramirez committed felony illegal reentry when she returned to the U.S. in 2013 and has no means for review of the 2011 order the government claims she violated.

"That seems like a Catch-22," U.S. Circuit Judge Caroline McHugh, a Barack Obama appointee, said. "She decides to return to her home country and you say her appeal is voided so she violated the original 60-day order."

U.S. Attorney Jacob Roth defended the government's rational and argued Vizguerra-Ramirez's petition for review came far too late to be considered.

"If she had seen the appeal through, the court would have decided whether to issue a new 60-day order or not," Roth argued. "It's really usurping the power of the Board of Immigration Appeals to issue a decision."

"The right way to do this would have been to ask the Board of Immigration Appeals to reset the clock," Roth added.

To complicate Vizguerra-Ramirez's case even further, the U.S. Supreme Court's 5-4 opinion in Riley v. Bondi issued last year further narrows her and others' opportunity to contest removal through a withholding claim, a provision that provides protections under the Convention Against Torture.

Following her arrest last year, Vizguerra-Ramirez filed a writ for habeas corpus asking U.S. District Judge Nina Wang to block the government's fast-tracked deportation plan, and release her pending further immigration proceedings.

Following several months in immigration detention, the Joe Biden appointee ordered Vizguerra-Ramirez to be released just before last Christmas, but declined to rule on whether she had been detained due to her speech in violation of the First Amendment.

Donald Trump-appointed U.S. Circuit Judge Allison Eid and U.S. Circuit Judge Gregory Phillips, an Obama appointee, rounded out the panel. The court did not indicate when or how it would decide the case.

Source: Courthouse News Service