Deportation Looms in D.W.I. Cases

For undocumented, arrests can open the exit door, with legal limbo in the middle
“The system is broken,” said Alex Kriegsman, a Sag Harbor attorney who often handles immigration problems. “It has all sorts of consequences on the local level.” T.E. McMorrow

      Two men who had been living East Hampton Town for seven and nine years left the town in handcuffs on Feb. 6, headed for county jail in the back seat of a Suffolk County Sheriff’s Department squad car, possibly never to return again. One of them, after a long weekend of uncertainty, was reunited with his family and friends in East Hampton. But for the other man, the trip was the first step into a legal limbo where deportation loomed.

       One hailed from Guatemala, the other from Ecuador, and each had been brought that morning from the jail where he was being held to East Hampton Town Justice Court, where their attorneys were trying to resolve outstanding driving while intoxicated charges against them.

       Although bail had been set for each at amounts their families were willing to post, the men could not have been released even if bail had been posted because United States Immigration and Customs Enforcement, known as ICE, had placed a hold on them as candidates for deportation.

       According to its website, ICE uses a three-tiered system, based on criminal convictions, to determine whom it will deport and whom it will allow to remain in the country. The most likely to be deported are undocumented immigrants convicted of “aggravated felonies” or two or more felonies of any kind.

       The next most likely to be deported are those convicted of three or more misdemeanors. The lowest priority for deportation are those convicted of a single misdemeanor.

       Pablo L. Estrada, 31, was arrested on Nov. 3 on aggravated D.W.I. charges. He also had a 2006 drunken driving conviction, making the November charge a felony, and was facing a felony charge of driving without a license. When he was arraigned before East Hampton Justice Lisa R. Rana on Nov. 4, she set bail at $8,000, but informed him that the ICE hold could render bail a moot point.

       Mr. Estrada, a Guatemalan who has lived in East Hampton for nine years, was transferred to Suffolk County jail in Riverside and remained there while his attorney worked to avoid a felony conviction.

       Daniel A. Gomez, 24, was arrested on a D.W.I. charge on New Year’s Eve. When he was arraigned the next morning before Justice Rana, he learned of the ICE hold on him. It appeared from the paperwork the justice had received from ICE, that Mr. Gomez, an undocumented immigrant from Ecuador who had lived in East Hampton since he was 17, had three previous misdemeanor convictions. What those convictions were was not clear even after examining the ICE document.

       Mary C. Hartill, his attorney, still does not know what ICE believed Mr. Gomez had previously been convicted of, and thinks that Immigration simply has the wrong man.

       If that is the case, it would not be the first time, according to Alex Kriegsman, an attorney in Sag Harbor who frequently handles immigration cases. According to Mr. Kriegsman, the problem starts in Washington, D.C. “The system is broken. It has all sorts of consequences on the local level,” he said.

       There are, he said, 11 million undocumented immigrants in the country whom ICE could theoretically deport. Applying the law “is about discretion. Who is ICE going to pick up?”

       Last year, according to the ICE website, there were “133,551 removals of individuals apprehended in the interior of the U.S.,” 82 percent of whom had been previously convicted of a crime. Over the past several years, the total number of deportations, which includes those stopped at the borders or picked up after entering the country, has averaged about 400,000 per year, according to the website.

       Representative Tim Bishop, a Democrat, acknowledged Friday that comprehensive reform of the immigration system is long overdue. The Senate, he said, has passed just such a bill. “It’s not perfect, but it steps up enforcement while providing a path to citizenship.”

       Mr. Bishop has co-sponsored a version of the Senate’s bill, but fears the Republican-controlled House will never allow it to go to the floor. Speaker of the House John Boehner “doesn’t want to alienate the extreme right wing” of his party, Mr. Bishop said.

       In his eyes, while the right wing of the Republican party refuses to compromise on the issue — calling instead for heightened enforcement of the laws in place — the Obama administration has done just that, with record levels of deportations focusing, in the interior, almost exclusively on those who have been convicted of crimes. In fact, Janet Murguia, president of the country’s largest Latino group, the National Council of La Raza, pointed out in an NPR interview on Tuesday that the Obama administration “has deported more individuals than any other administration before.”

       This emphasis on deporting those convicted of a crime in an undocumented population of 11 million creates a problem for the legal system — a lack of precise identity. “In Latin countries, many people have two last names,” Mr. Kriegsman said. In many of those countries it is customary to combine the family names of the mother and father.

       The inputting of these names in the American legal system can be haphazard. It is not uncommon for the same person to be identified three or even four times in the system. Sometimes a hyphen is used in the last name, sometimes not. Sometimes, the names are combined into one name, or one of the names is dropped.

       “Your name is Jose Reyes. There is another guy named Jose Reyes Garcia, who raped somebody in Texas,” Mr. Kriegsman said, setting up a hypothetical. When Jose Reyes gets pulled over in a traffic stop in East Hampton, the system could possibly see the man as wanted for rape in Texas.

       Once ICE puts a detainer on an individual who is arrested, he or she enters a legal twilight zone. They will be held in the local jail while their criminal case is adjudicated, unable to get out on bail, but also not allowed to address the ICE detainer until the case is settled.

       This binds the hands of the attorneys representing clients who are being held with no hope of release. Ms. Hartill believes that her client, Mr. Gomez, who speaks no English, may well have been innocent. One of the charges against him was that he refused to take the station house breath test. In the field, according to the court documents on the case, his breath had been tested at .09 of 1 percent blood alcohol content, just above the legal limit of .08. However, the legal system does not consider the field test reliable enough to use in court.

       The station house test that he refused could have exonerated him, but according to Ms. Hartill, Mr. Gomez did not understand the consequences of refusing the test and was not given a clear explanation in Spanish as to what was happening.

       With several family members and friends gathered in the courtroom on Feb. 6, Mr. Gomez, wearing leg shackles and handcuffs, pleaded guilty to the misdemeanor charge of driving while intoxicated. He was sentenced to time served, 37 days.

       Because ICE believed that Mr. Gomez may have been convicted of three prior misdemeanors, he became a second-level candidate for deportation, under the tiered system. With a single misdemeanor he also could be deported as a level-three candidate.

       Most of those gathered at the courthouse for Mr. Gomez that day did not want to speak, but a woman who identified herself only as Sandy, a friend, did. She said that Mr. Gomez was popular in the community and enjoyed coaching children’s soccer.

       “He is a caring man. He is humble. He shouldn’t be in chains,” she said.

       Mr. Kriegsman said that it is rare for someone to be deported for a single misdemeanor.

       After a defendant with an ICE hold is convicted and then completes his or her sentence, the agency has 72 hours, once notified, to pick up the individual. At that point he or she will be taken to one of several jails or prisons in the area. “He could be taken to 26 Federal Plaza, or Jersey City, Hudson County Correctional. Some are taken to Brooklyn or Queens,” Mr. Kriegsman said. 

       Once Mr. Gomez’s criminal charges were adjudicated, the ICE clock started ticking for him when he was taken back to the Suffolk County jail in Riverside. Ms. Hartill told the family that if Mr. Gomez was to be released, it would be on Feb. 7 or possibly the following Monday, his friend Sandy said on the phone recently. They heard nothing on Feb. 7, but his sisters went to the jail in Riverside on Feb. 10, when Mr. Gomez was released and given a date in March to meet with ICE.

       In Mr. Estrada’s case, his attorney, Antonio S. Salva, tried to make the best of a bad situation. He waived Mr. Estrada’s right to a speedy indictment, hoping to avoid the felony convictions, which would mean almost certain deportation to his native Guatemala. Also a popular man in the community, Mr. Estrada has a child and is the co-owner of a food store, according to statements made in court on Nov. 4.

       After prolonged negotiations with the district attorney’s office, it became clear to Mr. Salva that there would be little reduction of the charges. On Feb. 6, with Alex Rizo, his brother-in-law, in the courtroom, Mr. Estrada agreed to have the case shifted to the county’s criminal courthouse in Riverside and to plead guilty the next day to the felony D.W.I and unlicensed driving charges. The guilty plea to the felony charge could only be done in the county court.

       Justice Stephen L. Braslow told him through a translator that it is likely he will be deported and asked if he had anything to say.

       “I’m sorry,” Mr. Estrada said. “I put my life and other lives at risk. It is my fault. I’m sorry.”

       “Our country opens its arms to all people who want to live here,” Justice Braslow told him. “We need people to comply with our laws. I understand that you are sorry . . . but you placed your life in jeopardy as well as others.”

       Mr. Estrada was sentenced to time served, 99 days, but because of the ICE hold was instead transported to the medium-security county jail in Yaphank.

       While the 72-hour clock on an ICE decision should have started ticking after his sentencing, East Hampton Town Justice Court still had his case marked open on its calendar, with a return date scheduled for April. Until the town was officially notified of the county court action, it could not dismiss the case, and until the case was dismissed in East Hampton, ICE would not act.

       His attorney, Mr. Salva, left the court building in Riverside on Feb. 7 convinced that the district attorney’s office would notify ICE in short order, but it did not.

       An examination of the court file last week in East Hampton revealed that the district attorney’s office prepared a case summary on Feb. 10, but did not transmit that summary to East Hampton Justice Court until Feb. 21.

       On Feb. 13, Mr. Salva sent East Hampton Town Justice Court a fax requesting an earlier court date, but the date requested, Feb. 28, fell on a Friday, not a day the East Hampton Town Justice Court takes up criminal cases. He was later informed that Mr. Estrada’s case could only be dealt with on a Wednesday or Thursday, the two days when an assistant district attorney is present in East Hampton.

       All the while, Mr. Estrada remained in jail. “He is a human being,” Luz, a friend who owns the deli with Mr. Estrada, said on Feb. 24. The woman, who did not provide her last name, had been in East Hampton Town Justice Court to support him on several occasions. “Why is this happening?” she asked. “Everybody has the right to know how many days you are going to be in jail. Is it going to be one day? Two days? For four months, nobody knows. Nobody is representing him. Not a judge, not an attorney,” she said.

       Though neither she nor Mr. Salva were aware of it, court records show that on Feb. 21, the East Hampton Town Justice Court, after receiving the D.A.’s case summary, had closed Mr. Estrada’s case on its calendar.

       On Feb. 25, ICE took Mr. Estrada from the jail in Yaphank to the one in Riverside and from there to Federal Plaza in New York City and then to Hudson County Jail. He was released on Friday, after Luz posted bond, but as of Tuesday had not yet received a date for an immigration hearing.

       “This is why you have to stay out of the justice system,” Luz said last week, before leaving for New York. “After you get there, it is not easy to get out.”