Entrepreneur’s supporters say case law may result in release

By Chris Woodward
The Center Square

Arizonans think a situation involving Kilmar Armando Abrego Garcia should result in the release of a Phoenix area business owner facing deportation.

Garcia is the “Maryland man” who the Trump administration has argued is in the U.S. illegally and needs to be deported.

A federal judge Thursday ordered Garcia to be released for reasons including Zadvydas v. Davis, a 2001 U.S. Supreme Court case that established limits on indefinite immigration detention.

It is that same case that Democrat Brent Peak of Arizona has pointed to in his efforts to have Kelly Yu, a restaurateur in the Phoenix suburb of Peoria, released after being in detention for months. Yu is an illegal immigrant but has received bipartisan support from Arizonans who say she’s a responsible business owner and a respected member of the community.

Yu is being detained at the U.S. Immigration and Customs Enforcement detention center in Eloy, Arizona.

“The court determined that if someone is being held, but there is no record and their deportation is not foreseeable, like, there’s no foreseeable resolution to completing the deportation, then they must be released,” Peak told The Center Square. “She has no record. She has 20 years of upstanding conduct and residency in the U.S, so, at this point, from what I understand it would simply take a filing, filing a habeas petition, and a judge would order her release awaiting deportation.”

A habeas petition is a legal request that someone in custody files to ask a court to rule their imprisonment is unlawful.

Yu has been in detention for six months.

Republican Lisa Everett has been partnering with Peak to try to help Yu. Like Peak, Everett is optimistic that the Garcia situation will benefit Yu.

“Kelly Yu should be released because she has not violated any laws,” Everett told The Center Square. “She pays her taxes. She is a business owner and employs Americans. She is who we want in an immigrant.”

In August, when The Center Square first reported about Peak and Everett’s efforts to keep Yu from being deported, the U.S. Department of Homeland Security said Kelly Yu, aka Lai Kuen Yu, is “an illegal alien from Hong Kong, one that has had a final deportation order from a judge since 2005.” U.S. Homeland Security Assistant Secretary Tricia McLaughlin also told The Center Square in an email that Yu “was arrested illegally crossing the border by U.S. Border Patrol in Arizona on February 4, 2004.”

Yu was released into the country days later.

“On November 14, 2013, the Board of Immigration Appeals dismissed her appeal and upheld her final order of removal,” McLaughlin told The Center Square. “On August 23, 2016, the U.S. Court of Appeals for the Ninth Circuit denied her appeal. On June 12, the Board of Immigration Appeals granted her a temporary stay of removal while they consider her motion to reopen. She will remain in ICE custody pending her removal proceedings.”

According to Peak, the reason Yu has not been deported is because China has not responded to the U.S. to finalize the passport.

“That normally is done in a few weeks,” said Peak. “That’s why we thought all along that deportation was imminent because we were just waiting on the China side of whatever needs to be done for the passport, and I don’t know the details of that, of how that works.”

China isn’t doing anything, which leaves Yu stuck in prison, Peak said.

Yu’s husband, Aldo Urquiza, is an American citizen. He runs the two restaurants he has with his wife. Meanwhile, Yu’s daughter, Zita Yu, is in college and works at the restaurants.

Peak and Everett have been in touch with Urquiza on a regular basis.

“At this point, the family has given up,” said Peak. “My hope is that some other organization or perhaps even I would love to see Kris Mayes, our attorney general [in Arizona], file on her behalf to get a judge to order her released as she awaits deportation.”

Pointing again to Zadvydas v. Davis, Peak said “it is illegal to continue to imprison her for an indefinite time frame when the U.S. cannot determine how long they need to hold her” in custody.

“They do not know when her deportation will happen because they cannot get the answers that they need and the follow up that they need from China,” said Peak.

The Center Square has tried multiple times since August to get interviews from Arizonans in the U.S. House of Representatives and the U.S. Senate.

No one has responded.

“Sadly, I have not gotten a response from any of these officials with the exception of one returned phone call from Mark Kelly‘s office back in August I believe,” said Everett. “I have reached out to most of these offices repeatedly.”

The Center Square also reported on Yu’s situation in October and November.