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Posted on Wed, Aug. 31, 2005

Judge reverses order on deporting defendant

By Kathleen Brady Shea

Inquirer Staff Writer

A Chester County Court judge agreed yesterday to rescind an order that a Kennett Square man who admitted entering the United States illegally must return to Mexico within seven days.

Judge James P. MacElree 2d had included that provision in the April 22 sentence of Gonzalo Cruz, 22, who pleaded guilty to charges of terroristic threats and related offenses.

"I may have exceeded my authority," MacElree said.

The modification occurred in response to a petition filed earlier this month by First Assistant Public Defender Nathan M. Schenker.

In the petition, Schenker argued that a Chester County Court judge lacked authority to impose what amounted to a "de facto deportation." Schenker asked the judge to remove the requirement that Cruz return to Mexico, contending that federal law precludes states from becoming involved in immigration matters.

MacElree agreed to excise that provision, but he added a new one: Cruz must report his status to immigration officials by Friday.

Cruz's admission that he was an illegal immigrant required the judge to warn him that staying in the United States could land him back in jail, MacElree said.

In Cruz's case, failure to comply with all U.S. laws would constitute a parole violation that could put Cruz at risk for 35 more months in prison, the judge said.

"The fact that he may believe he's illegal doesn't mean he is," countered Schenker, arguing that such determinations belong to federal authorities.

On April 22, Cruz admitted his role in a domestic disturbance at his residence last Nov. 20 that led to charges of terroristic threats, simple assault and false imprisonment. He was sentenced to nine days to 23 months, given credit for time he had already served in jail, and paroled.

An appeal of a similar case involving another Kennett Square man, is pending in Superior Court.