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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.

Clara Munoz has finally gone home. Last week she boarded an Immigration and Naturalization Service bus bound for El Paso, Texas. Once there, INS agents watched as she and other passengers walked across the bridge into Mexico. At that point, Munoz and her compatriots became the responsibility--and headache--of the Mexican authorities.

Munoz has certainly been a headache for the Americans. In the past thirteen years she has been arrested in Colorado a dozen times, racking up busts for theft, flight to avoid prosecution and driving under the influence, and she's been convicted of shoplifting on at least two occasions. She has been quick to change addresses and even more swift to assume new identities--at last count, she was known by fifteen aliases. But the INS didn't catch up with her until last month, when Denver police arrested her yet again, this time on a felony theft charge.

Munoz's one-way ticket to the border is supposed to be standard procedure, the U.S. government's way of dealing with undocumented aliens. But forcible deportation has become an increasingly rare event in Colorado, even for illegals like Munoz who've been convicted of criminal offenses. Some petty criminals use their alien status as a virtual "Get Out of Jail Free" card, agreeing to depart the country "voluntarily" in return for a dropped jail term.

Even convicted felons aren't necessarily ordered to leave--and if they are, many simply evade the justice system and stay put. And those who do return to their home country often will head right back to the United States.

The government does play hardball with some illegal aliens. Those found guilty of drug-related offenses are almost always booted out of the country directly upon conviction or their release from prison. So, too, are those found guilty of offenses involving firearms--or any felony that results in a prison sentence of a year or more. But crimes such as burglary, for instance, aren't considered serious enough to merit tough action.

"We've established as our priority that they have to be convicted of a crime involving moral turpitude and they have to receive a sentence of a year or more," says Denver INS spokesman Scott Robertson. "So burglary does not meet my definition, and I'm not interested in them, and they probably won't be deported, because I do not have the agents to spend the time to work all of the people. Nor do I have a place to put them."

The well-known inability of the INS to deal with the vast numbers of undocumented aliens has led to an increased boldness on the part of those with criminal backgrounds, say police. "There aren't enough measures taken to dissuade them from coming back," says Denver police detective Mike Staskin, the man who arrested Munoz last month. "The INS [agents] work their rear ends off, but the system just isn't addressing the problem. It seems politically correct to say that people are just here to financially better themselves, but that's just a nice way of saying that we have borders and immigration laws but we don't really mean to enforce them."

INS employees say their own agency's guidelines mean they often have to watch as thieves, prostitutes and people found guilty of assault slip through their fingers. "There are so many aliens arrested every day that we don't have enough people to process the paperwork [for] deportation proceedings," says Robertson.

As a result, he adds, "We deal with the cream of the crop. No. That's a bad analogy. We take the baddest of the bad."

Even foes of the present immigration system say most undocumented aliens only want to live quietly and work hard. But Robertson and law enforcement authorities say an increasing number of illegals have no qualms about breaking the law. Ironically, says Robertson, "that may be partly due to the fact that we try to keep them from getting jobs."

At last count, there were 1,453 deportable aliens incarcerated in Colorado's federal and state prisons. That number doesn't include those held in city and county jails. "I would guess there's at least as many in the counties as in the prison system," Robertson says, "but we don't know because we don't get out to the county jails to count them."

Denver is one of the few Colorado counties that keeps a running total on the number of undocumented aliens--specifically Mexican nationals--held in its jail. The practice dates back about six years, when jail officials began keeping track of the population as a courtesy to the Mexican consulate here. Family members in Mexico would worry when they had no word from loved ones in the States, says Denver Sheriff's Major Fred Oliva, and some would contact the consulate for information. Families tend to be comforted by word that a relative is alive, says Oliva, even if he or she is sitting in jail.

In the years that Oliva has been tracking the jail's Mexican population, he has found that the facility holds an average of 175 aliens each month, roughly 10 percent of the inmate population. Last January, however, that number shot up to 446--fully one quarter of those incarcerated.

Ten years ago, says Denver police sergeant Mike Scanlon, officers would pick up and arrest undocumented aliens simply because they were in this country illegally. But those days are long gone. "Now we can't do that," he says. "We're not interested in immigration status and nationalities. We don't have room in the jails for our own crooks, much less them."

Until three or four years ago, Scanlon says, officers rarely encountered illegal aliens engaged in criminal activity. Most tended to keep their heads low and stay out of trouble. But in a climate where even repeat criminal offenders often manage to stay in the U.S., he says, there's an increasing incentive for those who may have committed crimes in Mexico to repeat the practice north of the border.

"I have a policy here in our office," Scanlon continues. "I have the guys notify the INS when we pick them up. I don't know what happens then."

The answer in most cases: not much.

The investigative division of the INS determined it was losing the battle against illegal immigration in 1983. At that point, the federal agency established a system of "case management," placing illegal aliens in three distinct groups, or "impact levels." "You weren't to go to the cases in levels two and three until you'd dealt with the ones at the top," says Scott Robertson. "It was a great idea."

Under the new rules, criminal aliens were placed at the top of the list. Instead of sending agents out to raid farmhouses in search of undocumented agricultural workers, agents were free to concentrate on those aliens who posed the biggest problem: the criminals.

Agents, though, discovered that the criminal category alone was taking up the vast majority of their time. So the INS established further guidelines dividing the lawbreakers according to the perceived threat they presented to public safety. The system created a criminal threshold that illegal aliens have to meet before the INS actively seeks them out and deports them.

In essence, as long as aliens stick to minor assaults or burglaries and don't get involved in guns or drugs, they're not a priority in the eyes of the federal government. "Offenses such as criminal trespass, assault, burglary, things of that sort--they have to meet a couple of different standards for us to classify them as a criminal alien," Robertson says. "Their criminal record has to meet certain standards to rise to this level."

Aliens who are considered serious flight risks or threats to public safety are generally shipped from jail to a federal detention center such as the INS lockup in Aurora. That privatized facility (owned and run by the Wackenhut Corrections Corporation) has 300 beds and is a regional clearinghouse for criminal aliens from as far away as Illinois and Missouri. Immigration hearings are held in a small courtroom inside the Wackenhut building.

On a recent Friday, twenty men are scheduled to appear before immigration judge James Vandello. All but four were born in Mexico. The others came to this country from Jordan, Honduras, Kuwait and Bulgaria. As the morning session begins, a dozen men shuffle into Vandello's courtroom wearing orange jail uniforms with matching sneakers or slippers.

Among the first to be called is Jesus Martinez-Garcia, a 26-year-old Mexican national who is being held without bond. He wants the judge to set a bond that he can afford. Under questioning by Vandello, Martinez-Garcia says his parents and siblings live in the United States. His mother has a green card, and his father is a citizen. He says he's been living in the United States for most of the past decade. Unfortunately for him, five of those years were spent in an Illinois prison, where he served time for attempted murder. The INS deported him as soon as he got out, but here he is, back again.

Vandello reduces the bond to $20,000, but Martinez-Garcia complains that even that amount is beyond his reach. He will probably remain incarcerated until he has exhausted his appeals and is deported again.

Unlike Martinez-Garcia, some criminal aliens are given the chance to leave the United States "voluntarily." In return for promising to go home, the individuals usually avoid jail time; as an added benefit, they won't be tagged for criminal sanctions should they return to this country illegally.

On this day, four men ask to be allowed voluntary departures. If they can come up with the $90 bus fare, Vandello tells them, they might qualify. Otherwise, he might order them deported.

A man named Jose Lopez-Lopez says he can come up with the bus fare and that he'd like to leave voluntarily. But an attorney for the INS objects to the request. Lopez-Lopez, it seems, was arrested during a raid by Denver police on a house on Santa Fe Drive. Inside the home officers found fifty pounds of marijuana and two submachine guns. Lopez-Lopez was charged with drug possession, but those charges were later dropped, the INS attorney says, because it was determined that the search had been conducted without proper consent.

Although Lopez-Lopez says he knows nothing about the drugs and guns, his case is delayed until the government attorney can produce witnesses. If the INS can make its case, Lopez-Lopez will likely be deported. If it can't, chances are he will be allowed a voluntary departure.

At the end of the morning's session, the judge orders five men deported, including a robber, a forger and a drug dealer. One other will be allowed to depart voluntarily. The remainder will be held pending future hearings or until they are able to post bond.

Of course, getting aliens who are already in custody to show up for immigration hearings is a cinch. But the INS doesn't have room in its facilities for hundreds of others who've been arrested. Many of those people are ordered to appear for an immigration hearing but simply don't show, even though the INS sets high bonds on those considered flight risks. Immigration judges do have the option of ordering people deported "in absentia," but that often proves to be a symbolic gesture. The INS mails letters to aliens deported in absentia, ordering them to show up in court with their bags packed and ready to leave the country. "In the past," Robertson says, "we referred to that as a `run letter.' Because as soon as they'd get it, they'd take off."

And some aliens never get the "run letter" at all. The INS depends on aliens it's keeping tabs on to send in a change-of-address form every time they move.

Bob Firth is one of two INS agents assigned to Denver's city jail. His job is to screen new arrivals, searching for suspected illegals. He and his partner question the inmates, take down information for a sketchy, personal biography and document it. If need be, they can place an INS "hold" on the inmate, meaning that when the courts are through, the agency will get a crack at him.

But the agents' reach is limited--for now, they've been told to interview and process only illegal aliens arrested on drug charges. Even with that narrow restriction, says Scott Robertson, the two agents are kept so busy "they're tearing their hair out."

"On occasion," Firth says, "we have interviewed inmates who are here on charges other than drugs. Sometimes a police officer asks me as a favor to please do something, because they've arrested this person over and over. I explain to them that [the alien] will probably just get a bus ride back to Mexico, but that that won't keep them from coming back up.

"There are people we've deported six, seven, eight times," he continues. "We can send them back, but we can't keep them out of the country. We call them revolving-door deportees."

The inmates that Firth and his fellow INS agent don't get around to interviewing generally fall into two categories. Inmates who are convicted of felonies and sent to a state prison will be documented by INS agents at the Department of Corrections and ordered deported when their terms are up. But the remainder--those who are acquitted or convicted of lesser crimes--often escape the government's clutches altogether.

Firth typically arrives at the jail early in the morning, before the inmates meet with a judge, post bond and disappear. The first order of business is to scan the list of new arrivals, eyeballing the roster for foreign-sounding names.

One recent Sunday, the list of felons arrested the day before contains thirteen names. Firth runs his finger runs down the sheet of paper handed to him by a sheriff's deputy. "Favorito, Kimberly," he muses, reading aloud. "I'll check on her. Audrey Garcia. I'll go with my gut. I'll probably just shine her on. If she is a foreign national, we'll hear about that later."

Favorito, Firth soon discovers, has already posted bond and split, but three men make his short list of people to interview. He asks the deputy to bring out Luis Aguilar-Villacorte, Pablo Vera-Jimenez and Eleazar Gonzalez-Avita, all three of whom were picked up on drug possession charges.

Firth has developed a shorthand for questioning aliens. First, he asks if they have "papers," an INS-issued green card showing proof of legal residency. If the answer is yes, Firth can check to see if the documents do, in fact, exist. He also asks inmates for their alien registration number, the first two digits of which will likely reveal whether the person is in the country legally or if they are here illegally and have previously been contacted and documented by the agency. A registration number will also tell him if the person has become a legal resident through marriage or if they were granted amnesty in the wake of the Immigration Reform and Control Act of 1986. (More than 15,000 aliens were legalized in Colorado due to the amnesty program, based on either long-term residence or because they performed needed jobs.)

Once back in his office, Firth will check all the information against existing INS records and see if the inmate's fingerprints match those on any other criminal records. Because illegal aliens "change names and establish identities at will," Robertson says, the latter task is not an easy one. It can take as long as two months for the FBI to match a set of prints. By then, chances are the alien is out of jail and long gone.

Firth's first interview on this day is with Gonzalez-Avita, a 48-year-old janitor. Gonzalez-Avita needs a shave. His dark Polo shirt and gray jeans are rumpled from a night spent atop a jail bunk. He is soft-spoken and smiles often. His English is good.

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.)

Munoz was ordered to leave the country by September 1, 1994. To no one's surprise, she missed her bus.

By April of this year, when INS agents received the appropriate paperwork and got the time to go after Munoz, they weren't the only ones on her tail; Denver cops wanted her, too. The police suspected Munoz of stealing several hundred dollars' worth of jewelry from an employer and of burglarizing the same man two weeks later, making off with an estimated $30,000 in raw gold.

Members of the two agencies tracked her down together. Denver police then charged her in the felony jewelry theft but were unable to come up with enough evidence to charge her in the gold burglary. Instead of a court case and jail time, Munoz was locked up in the Wackenhut facility before being deported to Mexico.

Neither the police nor the INS expects her to stay there.

One of the few things in Colorado's tangled immigration system that does seem to be working is Denver's new approach to aliens arrested on drug charges. The surge in alien prisoners that hit the Denver county jail earlier this year was largely due to illegals awaiting trial for drug possession. But officials say that situation has eased due to the city's new drug court. That court, along with the district attorney's office, the state public defender and the INS, is working to see that undocumented aliens arrested on low-level drug charges are dealt with swiftly.

"What happens," says Denver District Judge Bill Meyer, "is that the INS conducts interviews with individuals in the Denver city jail, determines their immigration status and puts holds on individuals. When [the inmate] comes into court, if it is a relatively low level of possession, generally the disposition is a plea of guilty to the primary charge, and they're held pending deportation. The Immigration and Naturalization Service has dedicated an administrative law judge to handle the drug court cases on each Thursday of the week. Because of that availability, the deportation hearings are held quickly and they are deported quickly."

Drug dealers are designated by the government as "aggravated felons," which means that if they return to the United States after being deported, they face additional sanctions, including lengthy stints in federal prison.

Back at the Denver city jail, Pablo Vera-Jimenez is about to see how the process works. He slumps in a chair tucked inside a cramped interview room, sipping from a carton of low-fat milk as INS agent Firth fills out immigration documents and questions him in Spanish. Vera-Jimenez appears weary and answers in a low, unanimated voice.

Police arrested Vera-Jimenez the night before on Larimer Street with $60 worth of tar heroin in his pocket. They said he was trying to sell his stash to a female employee at a local bar. But Vera-Jimenez hints, with an embarrassed air, that he was only trying to pick up the woman.

Vera-Jimenez is just 24, but he claims to have lived in the United States on and off for the past seven years. His family remains in Mexico, he says. They put him out on the streets because he didn't want to go to school.

However, his story is filled with inconsistencies. Although one version of his self-told biography would place him in the United States when he was just fourteen, he says he was seventeen when he hopped a northbound freight at Ciudad Acuna and first entered the country.

The train got him as far as Crystal City, Texas, he says, before immigration officials swooped down, alerted to the presence of stowaways by a gruesome accident--another Mexican national's foot was severed when it was caught between two freight cars.

"I ran like hell," Vera-Jimenez says in Spanish, "so they didn't catch me."
In fact, he says, the INS didn't catch up to him until one day about a year ago, when he was found "bien borracho" (good and drunk) aboard a bus in Plano, Texas. Given the choice of jail time or a "voluntary return" to Mexico, Vera-Jimenez chose the latter.

INS agents drove him and others to Laredo and the border, he says, but he stayed in his homeland only three hours before floating across the Rio Grande, back into United States. Then he hopped a train again. This time, he says, he settled in Colorado because he was told he could make more money here. A roofer by trade, he says he found plenty of work.

Within two weeks of his April arrest in Denver on the heroin charge, Vera-Jimenez is in the custody of the INS. He pleads out to the drug charge and is granted probation on the condition that he cooperates in being deported. Because he now has a drug conviction on his record, Vera-Jimenez could face time in federal prison if he returns to the United States and is arrested.

But even before accepting the deal, Vera-Jimenez admits that, given the odds of being caught and what he already knows about the American bureaucracy, the possibility of prison time might not keep him away. "I've got to live and work and feed myself," he tells Firth. "There's nothing I can do in Mexico. I would take the chance.

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