INTOLERANCE: Alleged illegal aliens face twisting legal path (The Herald Bulletin)

INTOLERANCE: Alleged illegal aliens face twisting legal path
Published April 22, 2008 08:40 am

By Shawn McGrath

CHICAGO — Diego Hernandez and Anh Phan have never met, but they may share something of a common path.

Both Hernandez, 40, a native of Mexico, and Phan, 27, a Vietnamese national, were held for immigration officials after they were arrested in Madison County, and will attend court hearings in Chicago to resolve their citizenship status.

Anderson police arrested Hernandez this month on suspicion of misdemeanor drunken driving and driving without ever having received a license.

Indiana State Police troopers arrested Phan in September at the Pendleton BMV branch when she allegedly tried to get an Indiana ID card using fraudulent Permanent Resident and Social Security cards.

Hernandez and Phan’s brushes with law enforcement represent how illegal aliens often come into contact with immigration officials. But not all people here illegally — even those who’ve been arrested — appear on U.S. Immigration and Customs Enforcement’s radar.

“Unless they’ve been previously deported, they really don’t put a hold on them,” said Andy Williams, Madison County Jail commander. “If it’s a minor offense, they don’t necessarily process them through.”

Hernandez had previously been deported to Mexico, and he’s had previous felony arrests.
Gail Montenegro, a spokeswoman for ICE’s Chicago district, admitted that many illegals fall off the radar even if they’ve come in contact with the criminal justice system, even if they’ve been arrested for petty crimes.

Being an illegal alien is a violation of federal law, Montenegro said, “but like any law enforcement agency, we have to prioritize.

“Our top priority is any illegal alien accused of a violent crime,” Montenegro said. “After that would be habitual criminals, such as numerous drunken driving arrests.”

Immigration officials lack the resources to remove all illegal aliens. There are over 15,000 people working for ICE, with offices around the world. The agency deporteed more 275,000 illegal aliens in fiscal year 2007, according to the agencies annual report, so the agency prioritizes the most serious violators: violent offenders, those convicted of major drug offenses and those who have already been deported.

Another priority is fugitive aliens, or illegal aliens that have gone through the deportation hearing process but absconded before they could be taken into custody. There are currently about 600,000 fugitive aliens in the United States, she said.

Along with Indiana and Illinois, the Chicago office covers Wisconsin, Kentucky, Kansas and Missouri. Most taken into custody in Madison County are transported to Marion County but then processed through an intake facility in Broadview, Ill., near Chicago.

Usually, a hearing before a judge with the Executive Office of Immigration Review, which is under the U.S. Department of Justice umbrella, is then scheduled.

Detainees aren’t appointed a public defender if they can’t afford private counsel to represent them during in the hearing process.But ICE does provide detainees with a list of pro bono immigration attorneys. They’re also given information on how to contact their nation’s consulate office in Chicago, Montenegro said. She said criminal prosecution is possible in some cases, similar to Anh Phan’s case, where the person is alleged to have used phony documents to get an ID, or suspected of committing identity theft.

But it could be a while before an immigration violator is finally deported.

“There are some cases that go on for months or years,” Montenegro said. “ICE does not detain everyone going through the deportation process.”

The individual has due process rights, and many cases are appealed to a higher federal court. In many cases, she said, suspected illegals are allowed to post bond. One hundred percent of the bond must be posted, and they start at $1,500, she said.

Locally, Williams said he doesn’t think many illegal aliens end up in the Madison County jail.

“I don’t know that the number has ever been tracked,” Williams said. “I don’t believe it to be a very high number. It’s not statistically a lot.”The path to being the U.S. legally is varied. Citizens of foreign countries can apply for a legal permenant resident card, better known as a Green Card. Or they can apply for one of the various types of visa, such as student, work or training visa. The length of stay under the visas varies, but many are for six months.

And any charges illegal aliens face locally are resolved — including prison sentences — before ICE officials will take them into custody.

“If they face local charges, we don’t interfere,” Montenegro said. “If you start to deport someone before the criminal process (is completed), in essence, it’s a get out of jail free card.”

As it stands, it’s up to Madison County authorities to notify ICE officials if they determine someone in custody is an illegal alien. But under a new initiative announced in March, ICE will begin the Security Communities plan where they automatically gain information on potential illegal aliens from the nation’s 3,100-some local jails.

ICE plans to send “integration technology” to local law-enforcement agencies to connect them to FBI and Department of Homeland Security databases to check immigration history, according to an ICE press release announcing the initiative. The process would automatically notify ICE officials when an immigration violator has been taken into custody, streamling the process.

Hernandez remained in the Madison County Jail Thursday, waiting picked up by ICE officials.

As for Phan, her mother and stepfather, who live in Fort Wayne, hired Anderson attorney Tom Godfrey to handle her criminal case. She is formally charged with application fraud, a Class D felony, and false government identification, a Class A misdemeanor.

Godfrey said Phan gave money to a friend who claimed to know someone who could obtain legitimate documents. Phan, who has since been released on her own recognizance so she can clear up the immigration issue, believed she had valid documentation, Godfrey said. Her trial is scheduled to start at 9 a.m. today in Madison County Court 2.

Montenegro said Phan’s plight isn’t uncommon.

“We see a lot of cases of where people are duped,” said Montenegro, adding Phan’s immigration hearing hadn’t yet been scheduled. “There are all different types who try to take advantage of this vulnerable segment of our society. They could be crooked attorneys, notary publics, just about anybody.

“It’s a segment of the population that is vulnerable. Many think that if they pay enough money, they’ll be able to legitimize their status, but that isn’t the case.”