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All alien criminals not being deported
By BETH SMITH, Gleaner staff 831-8334 * besmith@thegleaner.com
March 5, 2006

Consider this.

An illegal alien commits a crime -- other than living illegally in the United States -- and is arrested.

He or she moves through the different phases of the court system and is sentenced for the crime. What happens after the sentence is served?

Many might assume that due to his or her status as an illegal alien he or she would be deported upon release from incarceration.

But according to U.S. Immigration and Customs Enforcement (ICE), that usually isn't the case.

"Just because an illegal alien is in custody doesn't mean they'll be deported," said Gail Montenegro, a spokeswoman with ICE.

Recently, the Henderson Police Department dealt with a situation that initially looked as if ICE had no interest in deporting an illegal alien convicted on a felony drug charge.

In mid-December, a Hispanic male, who police say claimed to be 17, was caught with 18 pounds of marijuana that he'd been transporting from Indiana into Kentucky. He was charged with trafficking in marijuana more than five pounds, which is a Class C felony.

According to the juvenile's court records obtained by The Gleaner based on state statute (KRS 610.320), the juvenile was sentenced on Jan. 30 to 90 days in a juvenile facility.

After serving the 90 days, he is supposed to be in the custody of the Department of Juvenile Justice for a year. This means any number of things, including being placed with relatives or in a juvenile facility, said Henderson Police Detective Ron Adams.

Henderson County Attorney Charlie McCollom said that generally speaking, 90 days is about the maximum sentence a juvenile can get for a felony drug charge.

If charged and convicted on a Class C felony as an adult, he could have been sentenced to between five and 10 years, authorities said.

Police detectives said the entire situation -- arresting a juvenile illegal alien and the aftermath of that arrest -- was uncharted territory for them.

"We had no idea what would happen if we encountered a juvenile who is illegal," Adams said.

"We'd like to believe that if they (illegal aliens) commit crimes, they'll be removed from the community," said Detective Jamie Duvall. "But that's not the reality."

Detectives said ICE was contacted after the juvenile's arrest but said the agency responded in a way that led them to believe the juvenile would not be deported.

However, after being contacted by The Gleaner, Montenegro said a detainer had been placed on the juvenile and that deportation proceedings would begin after his release from the juvenile facility.

Deportation, or the lack of it, seems to be just one part of the problem.

Both detectives said the main issue facing law enforcement is finding and then verifying the identification of illegal aliens.

"What is frustrating for me is that we have to take their word about their name and date of birth," Duvall said. "There's no system in place to identify them. So someone who has claimed to be 20 for the past two years can suddenly claim to be 17 and then is sentenced (for crimes) as such."

"This is definitely a big issue," Adams said. "But I don't know how you can resolve it. There's no way to track who they are. Theoretically, they can be a different person in every city they go to."

Montenegro made a similar statement.

"(Illegal aliens) sometimes assume others' Social Security numbers and get fake papers to get a job," she said. "This is a vulnerability."

When ICE became part of the Department of Homeland Security after 9/11, Montenegro said the agencies' first priority became "anti-terrorism that's immigration related."

"After that we look at criminal aliens," she said. "Those who are a threat to the public. Those who've committed violent crimes such as sexual predators and gang members."

Montenegro said that currently there are an estimated 11 million illegal aliens living in the United States.

"We can't go out and lock up 11 million illegal aliens," she said. "We have to focus on the criminal aliens. And deportation would depend on criminal history and our resources."

Montenegro said illegal aliens can commit non-violent felony crimes and not be deported.

"It's no secret that the immigration system has some vulnerabilities," she said, "and we're hammering away at those. We are deporting record numbers of illegal aliens -- 160,000 illegal aliens were deported in 2004. But when you're faced with the daunting number of 11 million, you have to start somewhere."

And though the juvenile arrested in Henderson is likely to be deported, it doesn't usually turn out that way.

"What we'd like to say is that we put detainers on everybody and they are removed immediately upon release from jail," said Carl Rusnok, ICE's central region director of communications.

"But if you have a limited number of resources, you put those resources toward the most egregious offenders. We're going to go with the most violent first and work are way down from there as resources allow."