Thread: SNAFU-Illegal Deported BEFORE Trial

This article can be found at www.journalnow.com:


A snafu thwarts the legal process
Illegal immigrant deported before chance to be tried for drunken-driving death
By James Romoser
JOURNAL REPORTER
Thursday, November 17, 2005


YADKINVILLE

An illegal immigrant was deported to Mexico before he could be tried on charges stemming from a drunken-driving accident in which his daughter was killed.

The deportation has frustrated local law-enforcement officers and angered some residents, who say that Ignacio Benitez should have been brought to justice.

Normally, illegal immigrants who are accused of crimes must stand trial in the United States and serve any resulting prison time before they are deported.

That didn't happen in the case of Benitez, who was charged in July with involuntary man-slaughter after his car swerved off the side of Whitaker Road, killing his 12-year-old daughter, who was a passenger in the car.

Less than two weeks after he was arrested, U.S. immigration officials removed Benitez from the Yadkin County Jail and put him in federal custody. From there, he was deported to Mexico, where he is a free man.

"The reason that people are so upset is that there was a fatality involved - a child fatality," said Mandy Collins, a community-action site leader for Mothers Against Drunk Driving. "Anyone who kills a child needs to be held responsible instead of deported to their home country. He should have to answer for these crimes."

Benitez's premature deportation was the result of several factors: a low bond, an apparent misunderstanding between immigration officials and local prosecutors, and a deportation process that is nearly irreversible once the bureaucratic wheels are in motion.

Here's what happened: On July 26, Benitez was arrested on charges of involuntary manslaughter in the death of his daughter, Cindy. A magistrate initially set his bond at $15,000, but Judge Edgar Gregory raised it to $35,000 the next day, according to court papers.

Jeff Jordan, an immigration agent in Charlotte, said that the bond should have been set even higher, because Benitez was considered a serious flight risk. Benitez's mother, Marina Gaona Almazan, had been charged last year with second-degree murder in Yadkin County in the death of a boy, 2, whom she had been baby-sitting, but had fled before police could arrest her. Almazan is now thought to be in Mexico, and authorities were afraid that Benitez would try to flee as well.

"He was about to make bond, and do you think he'd be hanging around after he made bond? No, he wouldn't," Jordan said.

On July 29, Benitez did post bond. To keep him from going free, immigration authorities issued a detainer on Benitez - a special order allowing the Yadkin jail to continue to hold him temporarily.

Normally, the U.S. government issues detainers on illegal immigrants who are finishing prison terms after being convicted of crimes.

Once an illegal immigrant finishes a prison sentence, he is placed under detainer and then taken into federal custody to be deported.

In the Benitez case, the detainer was issued well before a trial date was even set. According to Jordan, once Benitez made bond, the detainer was the only way to prevent Benitez from fleeing.

But the detainer posed problems for Yadkin prosecutors, who wanted to keep Benitez in local custody and bring him to trial. A detainer lasts for two business days. After that, the detainee must be taken into federal custody or be released.

The district attorney's office decided to try to get Benitez's bond revoked so that the detainer would no longer be necessary to hold him.

According to Kisa Posey, an assistant district attorney, the Charlotte immigration office initially told prosecutors that the length of the detainer could be extended through Aug. 3, to give prosecutors more time to get a judge to revoke the bond.

But detainers cannot be extended beyond the two business days, and on Aug. 2, Benitez was removed from the Yadkin jail and put in federal custody.

Posey said she did not realize that immigration officials were removing Benitez that day until he was already gone.

Jordan said he does not know why the confusion occurred.

"We were very communicative with Yadkin County," he said. "We placed the detainer with clear, clear, clear instructions of our time requirements and what would happen if they didn't get the bond raised."

Posey said she was not aware that the detainer would expire on Aug 2.

"That information never trickled down to me," she said.

By the time Benitez's bond was revoked on Aug. 15, it was far too late for local authorities to reclaim him from federal custody.

According to a statement issued by U.S. Immigration and Customs Enforcement, federal authorities "may only detain aliens for the purpose of removal. Once in federal custody, Benitez was immediately entered into the deportation process - a separate legal procedure involving a special immigration judge.

"Once he's processed through that court process, he's gone," Jordan said. "His order of deportation is processed, and he's on his way to his home country."

By Sept. 27, Benitez was back in Mexico. It wasn't until this month - when he had been scheduled to appear in Yadkin Superior Court - that many people in the community realized that he would not face trial in the death of his daughter.

"Once they've got him, they've got him, and we can't have him," Posey said, referring to federal authorities. "I don't think it was anybody intentionally trying to get him away from us. I think it was just lack of understanding."

Maj. Danny Widener of the Yadkin County Sheriff's Office said that the episode has frustrated him.

"He was deported before we could put a stop to it," Widener said. "My personal opinion is that he should have faced the charges against him and answered for the crime that was committed in Yadkin County."

There's something in this article OTHER than the whole mess that causes me a lot of concern. Notice that it says that a DETAINER is only good for 2 business days. I wonder where that leaves "our" serial rapist in Winston-Salem??? That just doesn't make SENSE to me because the detective gave me that information in a way to answer my question about whether this man was here illegally. I just got the impression from the different people I spoke with AND the article that one of our other members posted that the DETAINER was for an indefinite period of time and that ICE would execute it AFTER the local law enforcement finished with the person OR after they were convicted and served their sentence. What is strange is that it had already been several days after this man was arrested that the detective told me this and it seems to me that the Detainer would already have expired. I sure hope this doesn't do anything to the prosecution of this BEAST.

Someone correct me if I'm wrong and I'll do some more research on this but it is my understanding that a detainer is indefinite. I suppose an angecy could put an expiration date on one that would be binding.

This situation appears to have a major lack of communication.

I wish you would check into it, John, because that was my understanding from that article that either you or jp posted explaining what a detainer was. THANK GOODNESS, at least to my KNOWLEDGE, ICE hasn't come to Winston-Salem and taken custody of "our" rapist. WHEW! Close call.

That is a terrible thing to have happen in a little place like Yadkinville. I know they feel HORRIBLE about that.

This means he is walking free in another country.

Added to homepage..

http://www.alipac.us/article-877-thread-1-0.html

Theres a lot of info on detainers. I read through some and didn't notice anything as to how long a detainer was good for.

http://www.lectlaw.com/def/d153.htm

DETAINER - The act of keeping a person against his will, or of keeping goods or property. All illegal detainers of the person amount to false imprisonment, and may be remedied by habeas corpus.

A detainer or detention of goods is either lawful or unlawful; when lawful, the party having possession of them cannot be deprived of it. The detention may be unlawful, although the original taking was lawful; as when goods were distrained for rent, and the rent was -afterwards paid; or when they 'Were pledged, and the money borrowed, and interest were afterwards paid; in these, and the like cases, the owner should make a demand, and if the possessor refuse to restore them, trover, detinue, or replevin will lie, at the option of the plaintiff.

There may also be a detainer of land and this is either lawful and peaceable, or unlawful and forcible.
1. The detainer is lawful where the entry has been lawful, and the estate is held by virtue of some right.
2. It is unlawful and forcible, where the entry has been unlawful, and with force, and it is retained, by force, against right; or even when the entry has been peaceable and lawful, if the detainer be by force, and against right; as, if a tenant at will should detain with force, after the will has determined, he will be guilty of a forcible detainer. A forcible detainer is a distinct offence from a forcible entry.

A writ or instrument, issued or made by a competent officer, authorizing the keeper of a prison to keep in his custody a person therein named. A detainer may be lodged against one within the walls of a prison, on what account soever he is there.

http://www.dc.state.fl.us/oth/inmates/detainers.html

1. What is a detainer?

A. A detainer is a warrant placed against an inmate for pending charges from another jurisdiction.
B. These pending charge(s) are usually from Florida counties and/or out-of-state law enforcement agencies.
C. A detainer warrant may also be placed against an inmate who has had concurrent or consecutive sentences imposed in other jurisdictions.
D. A third type of detainer one in which a jurisdiction wants to be notified of an inmate's pending release.

http://www.ncga.state.nc.us/EnactedLegi ... A-761.html

15A 761. Agreement on Detainers entered into; form and contents.

Thanks for the research, JohnB. I think the "D" one would be the one that would apply so I don't understand how ICE would just come into this little town's jail and TAKE CUSTODY of this man before he was tried. AND THEN TURN AROUND AND DEPORT HIM.

You're right, William. He's back in Mexico LAUGHING at how he beat the system along with his WIFE who had already done the same thing awhile back. AND, I would be willing to be that they will COME BACK. They will go to another state and repeat the same behavior they did in North Carolina. This is SO DISCOURAGING.

Actually this worked the way it is supposed to. The detainer is to hold someone who is in custody for another agency to pick up when they are released. In this case the guy posted his bond. The local jail notified the feds and they picked him up. It doesn't matter why the person is released. Posted bond/served time, if the person is being released the agency who put the detainer on them is notified.

I think I have also figured out this two day thing. This is just my guess but I'll bet that is the time frame that the agency who put the detainer on the person has to pick the person up. The agency who has the person in custody isn't going to hold them forever for an outside agency.

Since he was deported, I'll guess he probably won't come back for his trial. So he looses his bond money and should have an arrest warrent waiting for him if he should come back.

That makes sense, John. Good work. They did say that they SHOULD have set the bond higher and that doesn't sound like enough for someone who killed their child while driving DRUNK AND being here illegally so they should have KNOWN he was a flight risk. They even knew his MOTHER (I first thought it was his WIFE) had done almost the same thing a couple of years ago when she was accused of killing a 2 year old child she was babysitting. They should have set bond at $500,000.