Estela Fajardo (copy)

Estela Fajardo with her son, Dylan. Fajardo, who has been jailed three years, was released to immigration officials Friday, four days before a scheduled trial date.

An immigrant charged with felony theft who has languished in jail for three years waiting for her day in court is now fighting deportation after the McLennan County District Attorney’s Office secured her release from jail four days before her scheduled trial.

Instead of Estela Fajardo going to trial Dec. 11, U.S. Immigration and Customs Enforcement officials intent on deporting her removed the 31-year Waco resident and mother of four from the McLennan County Jail on Friday morning and sent her to an immigration detention facility south of San Antonio. Immigration officials took her into custody after prosecutor Evan O’Donnell asked 19th State District Judge Ralph Strother to sign a personal recognizance bond securing her release.

In many cases in which criminal defendants cannot afford to post bond, their attorneys seek reduced bonds or PR bonds at hearings before judges. In Fajardo’s case, she was released on the PR bond without the knowledge of her criminal attorney, Gerald Villarrial, or her immigration attorney, Anali Looper of American Gateways, a nonprofit immigration legal service provider.

Fajardo, who maintains her innocence, initially was indicted on engaging in organized criminal activity charges. After she had been jailed more than two years, prosecutors reduced the charge to Class A misdemeanor theft. After Fajardo refused to plead guilty to the misdemeanor, the DA’s office reindicted her on charges of theft of more than $2,500, a state-jail felony punishable by up to two years in a state jail.

Villarrial called the DA’s office arranging for the PR bond without his knowledge and allowing her to be taken by ICE officials without dropping the charges against her “unconscionable” and the “most cowardly thing I have ever seen in my life.”

“I think this is a travesty,” he said. “I have never seen anything remotely like it before. The lady has been sitting there for almost three years and then she gets a PR bond that we didn’t even ask for and then she gets deported. She has a 4-year-old that she hasn’t been free to see since the kid was 1.

“Assuming that we went to court and assuming that a jury found her guilty, the court would have to give her credit for all the time she has spent in jail, and that is way more than the maximum sentence. Either give the lady her day in court or dismiss the case. I don’t know, but this all smells unethical to me. Maybe we can get some better leadership when Barry Johnson becomes DA. Maybe that’s what we need.”

Johnson defeated McLennan County District Attorney Abel Reyna in the March primary and takes office in January. Reyna did not return phone messages Friday.

Looper said once she found out Fajardo was in ICE custody Friday morning, she planned to file a stay of removal with immigration officials, which seeks to stop the deportation for a variety of reasons.

Instead, Looper said, Fajardo, responding to ICE officials’ questions about whether she feared going back to Mexico, said that she did, a legal step below asylum that gives her the right to what is known as a reasonable fear interview to explore her claims. Fajardo is not eligible to seek asylum because she has a prior deportation when she was caught returning to the United States, and to her husband and children, after attending her father’s funeral in Mexico, Looper said.

Fajardo was convicted in federal court of illegal re-entry into the U.S. and served a six-month term before being returned to the McLennan County Jail to face the theft charges, Looper said.

Fajardo cannot be deported until after her reasonable fear hearing, which should be in about two months. She likely will remain in the detention center in Pearsall until then, Looper said.

Fajardo’s case was thrust into the public eye earlier this year by the Waco Immigrants Alliance, which protested Fajardo’s treatment at the private Jack Harwell Detention Center in Waco and continues to fight for her release so she can be reunited with her four children, who are U.S. citizens.

Alliance members announced Friday they will wage another protest for Fajardo’s benefit in front of the McLennan County District Attorney’s Office on Monday morning. Alliance members said in a statement Friday that they “believe the DA’s office is undermining the legal process that would vindicate” Fajardo and that members “demand accountability in the face of this egregious violation of due process and civil rights, and call for an end to these abuses.”

Supporters say Fajardo, who has lived in Waco since she was 14, became a successful businesswoman in Waco despite coping with an abusive marriage and is an asset to the community.

“She is a really excellent person,” Looper said. “She is an outstanding member of the community. She has been leading Bible studies in jail and said she wants to continue working with incarcerated women when she is released. She calls that her ministry now. These are the kind of people we want in our country. I think everyone deserves a right to legal access, and if you look at her case in particular, I don’t know how anyone can think ‘let’s deport this woman.’ ”

O’Donnell said Friday that a conflict with the court caused Fajardo’s scheduled Dec. 11 trial to be pushed back to March or April. He said it did not make sense for her to remain in jail until then, so he sought the PR bond from the judge.

O’Donnell said he spoke to Looper about the PR bond Wednesday and thought she would speak to Villarrial about it. Looper told O’Donnell she would advise Fajardo not to sign it because of the looming deportation issues, and Fajardo did not sign it. She said O’Donnell knew ICE likely would send Fajardo back to Mexico promptly because of her illegal re-entry conviction.

When asked why he does not dismiss the case because Fajardo already has served more time than the maximum sentence, O’Donnell said, “I believe in the merits of the case.”

Villarrial said he wonders why O’Donnell did not notify him about the PR bond instead of talking to Fajardo’s immigration attorney. Looper said she urged O’Donnell to speak to Villarrial about the bond. Villarrial insists he did not.

“He is trying to spin it like they were trying to do her a favor,” Villarrial said. “If you want to do her a favor, dismiss the case. She has been in jail three years. What is two or three more months? He wants to say he believes in the merits of the case. I don’t think he has a case. The closer he got to trial, he starts looking at this and realizes he doesn’t have a good case. So he goes and gets a PR bond to get her deported.”

O’Donnell said he has nothing to do with deportation matters, adding that Looper instructed Fajardo not to sign the PR bond because she wanted her to stay in jail. Despite that, Strother signed the PR bond, and jail officials released her to ICE.

Villarrial also represents Fajardo in a civil lawsuit filed earlier this year against Southwestern Correctional, parent company of LaSalle Corrections, and against LaSalle guard Charis Kendricks. The suit alleges that Kendricks “made inappropriate remarks of a sexual nature” to Fajardo and groped her improperly while conducting pat-down searches.

Staff writer at the Waco Tribune-Herald covering courts and criminal justice. Follow me on Twitter @TSpoonFeed.

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