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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."