High cost of a broken system
RESULT OF FLAWED PROCESS: UNDOCUMENTED CRIMINALS OFTEN AVOID DEPORTATION
By Javier Erik Olvera
Mercury News
Article Launched: 09/30/2007 01:36:36 AM PDT

For 10 days in March, Lucio Rodriguez sat in a Santa Clara County jail cell on a misdemeanor count of driving drunk.
Rodriguez, who authorities say has been living in the United States illegally, told jail officials he wasn't a citizen - a red flag for immigration agents - but they never met with him to begin the deportation process, and he was released.

Six months later, on Sept. 9, the 27-year-old was arrested in Los Gatos, on suspicion of driving drunk, again - but this time, authorities say, it was after he slammed into mother Sara Cole outside her vehicle, crushing her legs and nearly killing her.

The mother of four had been at one of her son's Little League games earlier in the day and was taking another son's bike out of her sport-utility vehicle at a baseball field when she was hit.

Sparking an outcry from the woman's family, Rodriguez's case has shone a light on cracks in a complex deportation process that, from arrest to trial to incarceration, can result in illegal immigrants avoiding what presumably should be a trip home.

"We absolutely have a system in this county that's broken," said Bill Cole, Sara Cole's ex-husband and family spokesman. "We are learning that there are no real laws in place to make sure people who commit crimes are followed up on."

While most people think that once an undocumented immigrant is captured, deportation will follow, police, federal agents and immigration experts say that's not the reality:

• Funding woes mean immigration officials focus on those accused of serious felonies, such as murder and rape, instead of on misdemeanors and non-violent felonies.

• The rules are loose regarding when immigration authorities should be notified about a suspect's legal status.

• And experts note that even when an illegal immigrant does stand before an immigration judge, a huge backlog of cases means there's no guarantee of swift deportation, or even deportation at all.

That's because judges sometimes offer what's known as a voluntary departure. In those cases, immigrants promise to leave and then file paperwork upon returning to their home countries. But no one makes sure they actually do leave.

"Just because someone is going through the criminal justice system, doesn't mean they come to the attention of federal authorities," said Lynette Parker, who teaches immigration law at Santa Clara University.

Gaps acknowledged Virginia Kice, spokeswoman for U.S. Immigration and Customs Enforcement, admits there are gaps in the process that keep federal agents from coming into contact with illegal immigrants in jails. (Illegal immigrants are always caught before they enter state and federal prisons, she added, where they're sentenced for felony crimes.)

For example, she said, agents may not be able to interview inmates because jail overcrowding forces shorter sentences, and inmates may be released before an immigration agent's next visit.

The gaps, however, start with local cops. In many cities, including San Jose, standing policies limit officers from notifying immigration authorities unless a suspect is charged with a felony.

Once suspects are booked into jail, they're asked a series of questions - whether they are U.S. citizens, their place of birth and their immigration status. The answers can alert federal agents whether the inmate is in the country illegally, but they don't always work.

Take Rodriguez's case, for example. Santa Clara County jail officials ran through the checkoff list.

A red flag Kice said answering "foreign born" is a red flag for agents to talk to the inmate, but Department of Justice immigration court reports show federal agents never placed a "hold" on Rodriguez. A hold is meant to ensure that the immigrant in custody, if convicted, will be handed over to federal officials after his or her sentence is completed.

Because Immigration and Customs Enforcement doesn't release staffing information, it's unknown whether Rodriguez's 10 days in jail in March fell during federal agents' scheduled jail visits. ICE won't say how often agents visit the jail, or how many agents are dedicated to checking inmates.

It wasn't until Rodriguez's arrest Sept. 9 - when authorities say he hit Cole, fled the scene and was so drunk he could barely stand when apprehended - that federal agents placed a hold on him.

Rodriguez, whose attorney couldn't be reached for comment, now faces a long list of felony charges, including drunken driving causing injury, hit-and-run and driving with a suspended license (a technical charge because he has never had a driver's license), said Santa Clara County Deputy District Attorney Cindy Hendrickson. If convicted, he would serve his sentence in state prison, then be handed over to federal authorities to continue the deportation process.

No one knows the number of illegal immigrants who may fall through the cracks in the criminal justice system each year, but experts believe it could be high.

Jessica Vaughan, a researcher for the Center for Immigration Studies in Washington, D.C., has spent the past year studying the immigration system. She says it has "gaping holes" that stretch from local law enforcement policies that prohibit ICE contact for minor crimes to federal staffing numbers that limit contact with jailed illegal immigrants.

"The most serious problem is not identifying people in state and local jails," said Vaughan, whose organization advocates for tougher immigration enforcement.

She criticized police policies, calling them "short-sighted," and said "communities shouldn't have to shoulder the burden of illegal immigrants who shouldn't be here anyway but are committing crimes."

Immigrant rights activist Salvador Bustamante argues immigrants shouldn't be discriminated against by police or targeted because they look different. Bustamante, executive director of Strengthening Our Lives, said most undocumented immigrants are not criminals and shouldn't be treated as such.

San Jose policy San Jose Police Chief Rob Davis imposed a controversial policy three years ago that prohibits officers from asking crime victims and misdemeanor offenders about their legal status. Davis has maintained that his officers won't enforce federal immigration laws because it might discourage crime victims from cooperating with police or reporting other crimes.

That policy is at the center of a lawsuit filed by Orange County attorney David Klehm, who argues illegal immigrants who are arrested ought to be deported rather than "recycled" through the criminal justice system.

A similar policy in Phoenix came under fire after the Sept. 18 death of police officer Nick Erfle, who was shot by Erik Jovani Martinez. Martinez, who had been forcibly deported but had come back to the United States, was later killed by police.

"I do think that state and local law enforcement agencies are missing an opportunity to protect their communities," Vaughan said.

Vaughan also noted there is a federal database, ICE's Law Enforcement Support Center, that lists every foreign-born person who has ever come in contact with a federal agency.

The database, which began in 1996, contains more than 100 million people, including those who've gone through the deportation process or filed documents to become permanent residents. It has several uses, such as verifying whether suspects have been deported.

Law enforcement accessed the database about 800,000 times last year. Authorities found 19,500 people, ICE spokesman Mike Gilhooly said.

Gilhooly also says law enforcement can access the National Crime Information Center, which lists more than 250,000 illegal immigrants who are being sought.

Even when an undocumented immigrant is brought before a Department of Justice immigration judge, the process isn't always fast; immigration courts started 2005 with a backlog of more than 168,000 cases, according to a 2006 U.S. Government Accountability Office report.

If the charges faced are deemed minor, the immigrant could be offered a voluntary departure. Such departures are granted to those with no previous criminal backgrounds as long as they promise to leave on their own and take deportation paperwork to the nearest U.S. consulate in their home country to complete.

But Parker said no one holds their hands to make sure they leave and ICE officials say there is no data to show the number of people who complete the deportation paperwork.

During the past few years, ICE has stepped up its efforts to pursue criminal immigrants, with the number of deportations increasing by nearly 26 percent over a five-year period. About 89,250 immigrants were formally deported from the country last year after facing sentences for a wide range of crimes, ICE statistics show, up from 70,892 deportations in 2001.

Cole, meanwhile, remains in critical condition. It's unclear if she'll lose her left leg, which was mangled in the accident.

Her family hopes something will change to close the gaps in the deportation process.

"Things like this shouldn't happen to families," Bill Cole said.
http://www.mercurynews.com/politics/ci_7044110
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Contact Javier Erik Olvera at jolvera@mercurynews.com or (40 920-5704.