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CROSSING THE LINE

HOW ILLEGAL ALIENS WITH CRIMINAL RECORDS COME OVER THE RIVER--AND THROUGH THE CRACKS.AMERICA OR BUST ILLEGAL ALIENS CAN COMMIT BURGLARIES, THEFTS AND ASSAULTS IN DENVER--AND HAVE LITTLE TO FEAR FROM THE INS.

Gonzalez-Avita tells Firth he's lived in the United States for fifteen years, that he's had a green card since 1982 and that his wife is an American citizen. He's in jail because of a mistake, he says. He and a friend were working on his friend's truck and simultaneously listening to the radio on his own car when a Denver police cruiser rolled up. "They put us in handcuffs," he says. "They start to look in the car. They took a little piece of paper. I didn't know what it was. They said it was cocaine.

"I tell the police they can check my record," Gonzalez-Avita continues. "I have nothing like this. I tell them other people have been in my car besides me. They said they would help me if I tell them who I buy it from. I say, `No, I have no money to buy drugs. I have children. I have a house.'"

Gonzalez-Avita seems convinced that the officers will let him go. But Firth informs him that if he's convicted on a drug charge, he could be deported. Actually, the chances of that happening range from remote to nonexistent.

According to federal law, a legal resident alien who has been in the United States at least seven years can be convicted of a crime--even a drug charge--and still ask for a pardon. In Gonzalez-Avita's case, he has a wife, three American-born children and a job. He's been in this country more than a dozen years and was caught with only a small amount of what police say is cocaine. (The charges against Gonzalez-Avita were later dropped.)

If the courts drop criminal charges against an undocumented alien, INS policy is to schedule an immigration hearing for the individual. But the agency generally is unable to detain the person pending a hearing: There simply isn't room in the agency's Aurora facility. So in lieu of detention, the INS sends a letter to the alien asking him or her to appear.

Much like the "run letters," it's a polite procedure that even the INS recognizes as laughably ineffective. Realistically, says Robertson, "if I can't detain them, they'll never show up."

Some activists say that's because, far from going easy on illegals who've had brushes with the law, the system sometimes unfairly penalizes them. Sandra Saltrese-Miller, an attorney with the nonprofit Justice Information Center (which provides interpreters for the court and helps aliens apply for legal residency), notes that undocumented aliens who've been living in the U.S. for as long as fifteen years can be deported for committing comparatively minor crimes.

And as it stands now, an arrest for something as simple as a drunk-and-disorderly charge could prevent an undocumented alien from attaining legal residency later on, Saltrese-Miller notes. "In order to legalize oneself," she says, "you've got to disclose every single arrest, conviction and criminal matter you were involved in, whether or not you were innocent. And the INS can hold that against you. For example, maybe you were held for DUI and you weren't legally drunk. There's a proviso that the Immigration Service does not want habitual drunkards. It forces some people to forever live underground and be subject to deportation."

Judith Howell, an attorney for Catholic Immigration Services, says deportation is subject to abuse by authorities. "Very frequently," she says, "people plead guilty to things they're not guilty of because they're told they can get probation and get out of jail. They may not know that could make them deportable."

Although Saltrese-Miller admits to harboring sympathy for undocumented aliens who've "made mistakes," she says it's important to rid the country of hardcore criminals and repeat offenders. "If you come to live in this society," she says, "I believe you should play by the rules. There are crimes and series of crimes committed by habitual criminals that shouldn't be overlooked."

Although attempts to track the numbers of undocumented aliens in the United States have failed--"They do not want to be counted," notes Robertson--the INS estimates there may be 3.2 million aliens living illegally in the United States, 17,000 of them in Colorado.

According to some studies, slightly more than half of the country's undocumented aliens arrive legally as tourists, students or businesspeople. When their visas expire, they just don't go home. Thirty-year-old Clara Munoz fits that mold. She crossed the border at Nogales, Arizona, with her mother in 1972, telling the guards she'd come for a three-day visit.

According to police, Munoz was first arrested in Denver in 1982. She was arrested on numerous charges in the ensuing years, but it wasn't until 1988 that she was actually convicted. In February of that year, she was found guilty of shoplifting in Lakewood. In April she was convicted of a similar offense in Federal Heights. She was picked up by Denver police again in 1989 for failing to appear on a traffic charge.

Still, little was done about Munoz's immigration status until June 1993, when she was finally ordered to show for an immigration hearing, where an immigration judge found her "deportable." She appealed her case, which ultimately gained her a one-year reprieve. But last summer an immigration judge ordered her deported. He gave her a few months to get her affairs in order before leaving--and since she has five children, all born in the United States, she had a great many things to take care of. (Munoz could have chosen to take her children back to Mexico.)

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