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Living La Vida Loophole

How illegal aliens get away with crimes


Being an illegal alien can have its advantages -- if you're a criminal.

In our court system, it can lead to the dismissal of criminal charges against you, charges that would result in a penalty for the average American citizen.

Mecklenburg County Assistant District Attorney Stephen Ward says he regularly wastes time preparing cases only to show up to court and find out that the defendant he was prosecuting was an illegal alien and has been deported by U.S. Immigration and Customs Enforcement.

"They swoop them up without so much as a 'Do you folks mind?'" Ward says. "They take them and never tell us about it while I keep preparing for court."

Because the deportations are triggered by bond proceedings and occur before conviction, many illegal alien criminals are being deported from the country without being tried on the criminal charges that led to their arrests or serving time for their crimes.

That might be okay if they couldn't easily return to the country, but they often do. By then, the charges against them have often been dismissed and they return with a clean -- or cleaner -- criminal record.

It's what was in the process of happening in the case of Jose C. Rivera, an illegal immigrant who is accused of raping three Charlotte women. Rivera was charged with felony breaking and entering, felony larceny and resisting a public official in June. By July, with the charges still pending, he was in a federal deportation facility in Atlanta, on his way out of the country, when authorities discovered an apparent DNA match in the Charlotte rape cases.

Ward says he's "horribly frustrated" with the situation. While the district attorney's office doesn't keep statistics on how often it happens, Ward says it's "often."

"There are so many illegal immigrants," Ward says. "We see it with DWIs and all sorts of crimes."

When illegal alien criminals are whisked away by ICE, judges are unwilling to issue orders for arrest for failure to appear, since it wasn't technically the defendant's fault that he was unable to appear.

Ward says the district attorney could reinstate the charges if an illegal alien returned after deportation -- but he has no way of knowing that illegal aliens have reappeared in the Charlotte area after deportation. The overwhelmed county court system lacks a mechanism to catch new charges and restart the dismissed ones.

"That's what would have happened in this case," Ward says of the felony breaking and entering charges against Rivera.

ICE spokesman Richard Rocha says ICE deports illegal aliens like Rivera before they face the charges against them "in the interest of public safety."

Rocha says the agency does this because it fears that illegal alien criminals will disappear once they are released on bond. Judges, prosecutors and court officials are apparently often unaware of the residency status of illegal aliens when they make bond decisions, another gaping gap in the court system.

"If he got out on bond and re-offended, imagine the public outcry," says Rocha. "Who knows if he would show up for his court date? You don't want them out roaming the streets."

Rocha says that ICE decides whether or not to deport illegal alien criminals before they can be tried on their current charges on a case-by-case basis. If the charges were more serious, ICE would wait until after the illegal alien had served their sentence.

Unlike ICE, most people would probably consider the felony breaking and entering and larceny charges Rivera had racked up to be serious ones.

And as Mecklenburg County Sheriff's Office Spokesperson Julia Rush points out, deporting illegal alien criminals before they can be tried and convicted on the charges against them leads to shorter criminal records. This in turn decreases the likelihood that they will be tried federally for the next batch of felonies they commit when they return from their deportation. While the plea deals and resulting sentences handed out for felonies in Mecklenburg County are often light, federal sentences are usually steep.

The situation has become more of a problem since the Sheriff's office launched a program that automatically checks the residency status of foreigners in the jail. ICE often deports those the sheriff catches. Before the sheriff launched the new program, illegal aliens were simply churned back on the streets because no one could determine their residency status.

Rocha says that the district attorney's office has the option to retain any illegal alien it wants to try. He questioned why the district attorney's office hasn't done so, saying the district attorney is made aware of the residency status of those they try. But Ward insists that district attorneys don't find out the status of inmates until they are long gone. If there is a breakdown in the system, Rush also couldn't point to exactly where it was.

So even pinning down who exactly is at fault for this hole in the system is difficult.

But what's clear is that the system favors those who return to this country after being deported to find felony charges against them wiped off their records. When you consider that American criminals may be serving jail time on similar charges, the situation is maddening.

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