A San Marcos man is fighting to stay in the country after he was detained by the Border Patrol.
It has been nearly a week since Deysi Merino has seen her father Teodulfo Merino. She says he was on his way to his construction job in San Juan Capistrano last Saturday when he was stopped near a border patrol checkpoint and detained.
"I don't understand why my Dad's still in there, when he has no criminal record,” said the 20-year-old Cal State San Marcos student.
But 44-year-old Teodulfo is undocumented and has been living in San Marcos since 1997. He is married, has U.S. Citizen children and a clean criminal record, which Immigration Attorney Lilia Velasquez says, could work in his favor.
It may even allow him to stay in the U.S. legally.
“Certainly having U.S. Citizen children is one of the factors the border patrol will take into account,” said Velasquez.
But at the same time it can get complicated.
“You have cases where the person had a prior deportation, many many years ago, has U.S. citizen kids and other family members who are legal in the U.S. But under the law, the deportation can be reinstated,” added Velasquez.
Which is what Border Patrol says is the case for Merino. They say he was previously deported then came back and is now being held at the ICE detention center in El Centro.
A spokeswoman for ICE tells NBC 7, although his case is not considered criminal, his previous deportation puts him on ICE's high priority list for an immediate removal from the country.
“So it could be that he might be able to stay here, but not for long,” explained Velasquez.
But for Merino’s wife and five children, it could mean that they will have to fend for themselves.
Teodulfo's deportation all depends on whether he could prove that going back to his original country, in this case Mexico, would cause an extreme hardship.
His family has hired an attorney. Border Patrol also tell NBC 7 that Merino is trying to seeking asylum because he says his life would be threatened in Mexico.
Right now he remains in custody pending the results of a hearing.