By freelance writer Michael Volpe
Mario Benitez never thought it would come to do this, but as of November 9th, 2010, he received his final deportation notice from an immigration judge in Florida. Benitez has already filed an appeal to be heard December 9th, but because of his final order ICE can deport him at any time. Benitez has lived in this country legally since he was three years old in 1972. Worse yet, he witnessed KROME, the ICE detention facility in Miami that he’s being held at, release about one hundred illegal immigrants at the end of September. In fact, if you believe Benitez, every conservative’s nightmare is coming true, backdoor amnesty. The actual reasons for their release remain unclear, and ICE representative Nicole Navas insists it’s not any sort of back door amnesty. That said, as Benitez has traveled through first the US Justice system and more recently our immigration system, he now says, “I’d have more rights if I were an illegal alien.”
The story starts in 1972 when Benitez, then three, came to the States with his family from Mexico. He initially settled in the 44th Ward in Chicago until he was in junior high school and moved off Belmont and Pulaski until he graduated from college at Northwest Business College. Unlike 12 to 20 million people now in America, the Benitez family entered the country legally and maintained that legal status throughout. By the mid 1980’s, the rest of the Benitez family got their citizenship but Mario Benitez did not because, “I’d been dating the same girl for five years and I figured I’d become a citizen when we got married.” They never did and Mario Benitez continued being a permanent legal resident alien until the present. In 2005, he moved to Brevard County in Florida and became a mortgage broker. In 2007, following the collapse of the real estate market, Benitez, who had recently had his wedding called off by his fiancé, developed an alcohol problem. On April 11th, 2007, in a drunken stupor, he broke into his neighbor’s home and helped himself to his neighbor’s change jar, valued at about $130, according to a bank receipt. He was arrested and eventually pleaded guilty to breaking and entering and grand larceny (because the amount he stole was more than $100) and given a sentence of 22 months in the Florida Criminal System in January of 2009.
Growing up in Chicago Benitez didn’t expect to face any prison time and so he certainly had no idea that his plea and sentence would result in deportation. That’s because neither his attorney nor the court ever informed Benitez that his plea could lead to deportation. Both omissions would prove critical. “I would never have plead guilty and would have taken this to trial had I known that my guilty plea would lead to being deported,” says Benitez of his predicament. As such, he was shocked when, in May of 2009, ICE delivered a document to Sharpes Correctional Center, his then home, that upon completion of his sentence he was to be deported. In March of 2010, he was given a lifeline. It came in the form of a Supreme Court ruling in Padilla Vs. Kentucky. In that case, a legal resident alien, Jose Padilla, facing deportation, was advised by his attorney that his guilty plea, to drug trafficking, wouldn’t cause him to be deported. In fact, it did. The Supreme Court ruled that omission violated Padilla’s constitutional rights to effective counsel, and as a result, Padilla was allowed to challenge his deportation. Benitez was now allowed the same privilege. What Benitez didn’t yet know was that this Supreme Court ruling was no victory but only an opening to do battle with an immigration and criminal bureaucracy determined to deport him. ( Image:Sharpes Correctional Facility )
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Because of the sentence, rather than being immediately deported, he was sent to KROME while his immigration status was determined. When he first entered the KROME facility in July, upon completing his criminal sentence, Benitez was still in the process of reversing his deportation status. TThis would prove difficult because of an obscure portion of an even more obscure law that actually gives legal resident aliens facing deportation less rights than illegals. That law is the lllegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Prior to that law, Immigration judges were given discretion when a defendant faced them in immigration matters. So, Benitez could have argued that he's lived here since he was three years old, he no longer drinks, and anything else that would make him sympathetic to an immigration judge. Because of IRRIRA, in the case of non citizens that commit felonies, immigration judges no longer have the discretion they once had. Isaul Verdin, an immigration attorney from the Dallas area, agrees that certain aspects of IIRIRA do give more rights to illegals than legal permanent resident aliens. “While an aggravated felony is grounds for deportation, it won’t necessarily bar you from adjusting your immigration status," (a legal immigration term that may allow someone here illegal to change their status to a legal alien). Benitez was looking for something called a 212 H Waiver, to avoid being deported, but Verdin explained that a technicality in IRRIRA only makes this available to those with an illegal status. (though not necessarily those that entered the country illegally)
This 212 H Waiver allows waivers of cases where the law stipulates that a defendant is to be deported. Because IRRIRA only makes this waiver available to illegals, Benitez, a legal resident alien, didn't qualify. Benitez' own immigration judge questioned the fairness of this dichotomy saying this during a recent hearing, “Now, a lot of communities have argued equal protection because why-it’s not fair that if people that are not residents can apply for this waiver even if they have been convicted of an aggravated felony, then, why residents can’t apply who have an aggravated felony. But that’s the way it is.”
Verdin explained that our immigration law is even more bitter for Benitez in another way. While immigration law is supposed to be uniform in each state, it’s not. Verdin said that Martinez Vs. Mukasey.a 2008 5th Circuit ruling, granted permanent legal resident aliens the right to appeal for the same 212 H Waiver that Benitez is so desperate for. Since the 5th Circuit covers Texas and surrounding states and not Florida, where Benitez’crimes occurred, that ruling only applies in that circuit. (something that’s NOT standard for circuit court rulings) As such, that ruling doesn’t yet apply to Benitez.
Meanwhile, he was also facing an administration determined to deport criminal legal aliens like him while they made the 12-20 million only here because they’re illegal a low priority. According to Nicole Navas, spokesperson for ICE, here’s the priorities of ICE in the Obama administration, “This Administration is committed to smart, effective immigration reform, prioritizing the arrest and removal of criminal aliens and those who pose a danger to national security. In 2010 to date, ICE has removed more than 170,000 convicted criminals- a record number. ICE is not engaged in a “backdoor” amnesty and has placed more people in immigration proceedings this year than ever before. ICE has implemented a new policy to expedite the removal of criminal aliens and those who pose a danger to national security by ensuring these cases are heard. ICE Director John Morton’s civil enforcement memo can be obtained on www.ice.gov.”
Because, ICE, in the Obama administration, doesn’t make a distinction between criminal illegal aliens and legal resident aliens, their policy makes a higher priority of Benitez, a legal resident alien, than an illegal alien, who commits no other crimes while they are here. In fact, ICE refers to those only facing immigration charges as an “administrative violation” while Benitez’ violation is considered a criminal violation and given a higher priority by ICE. In September, he witnessed first hand just where in the pecking order he stood. At the beginning of the month, this article from the Miami area Spanish language newspaper filtered through KROME. The pertinent English translation portion is this, “The U.S. government issued a new directive to halt the deportation of immigrants who sought their regularization, primarily through legal family in the country, according to an official memo obtained Thursday by AFP.
The move could benefit tens of thousands of people with irregular migration status, such as expired visas, but who have family law (U.S. citizens or residents) who made a request on their behalf.”
Navas said, “the article reached conclusions” of the memo in question. The memo in question was sent out on August 20th, 2010, and it was this memo that caused many on the right to say that the administration was practicing backdoor immigration. Navas maintains it does no such thing. Meanwhile, about two weeks after this article first surfaced, about 100 detainees, according to Benitez as well as several other detainees that wished to remain anonymous for now, only facing immigration charges were released. Navas disputes this and provided a summary of detainee movements for September and the months immediately before and after. That table showed nothing unusual in September. Navas says that detainees could have been transferred and weren’t necessarily released.Benitez stands by what he saw and he says he knows that those released were illegals who committed no crimes because all detainees wear corresponding colors. Those in blue are what ICE refers to as “administrative” detainees and Benitez says it was those in blue that were released. Meanwhile, based on the statement ICE provided, it’s hard to believe they were all transferred en masse. ICE considers those the lowest priority. KROME is by far the most conducive detention facility to the detainees. They could also be housed in County facility. Given the priority level of “administrative detainees”, it’s hard to believe they’d be moved from KROME, unless they were being released. Benitez says, “there’s very few of those in blue left since that release.” ICE had no comment about his contention.
Jim Gilchrist, founder of the Minuteman Project, was not surprised, “You are correct. ICE releases those not detained for serious crimes. Eventually, most of the world’s population, and all of Mexico’s population, will migrate to the US and Canada. Imagine the US and Canada with 7 billion people”.
Meanwhile, Benitez has had an up close view of the painfully slow, cumbersome, and frustrating, and even inaccurate bureaucracy involved in the whole immigration part of the Obama administration. His only reasonable option is post conviction relief that would reduce his sentence below a year, below the threshold to be deported. That’s what he applied for in July. Because he did it pro se, on his own, his motion set idle in the Brevard County criminal court system for more than three months. Finally, he hired a lawyer and the judge ruled on it right away but immediately dismissed the motion without prejudice. Meanwhile, he has faced an immigration judge about once a month. With no discretion, the judge put Benitez closer and closer to deportation until his final order came down on the 9th of November. Furthermore, because he’s a criminal, he also isn’t eligible for bond.
ICE issued this statement in support of Benitez’ deportation, “Mario Alejandro Benitez, 42, a citizen and national of Mexico, originally entered the United States as a non-immigrant visitor for pleasure (B2) at Boston, MA on Aug. 1985. Mr. Benitez adjusted his status to that of Lawful Permanent Resident in March 1990. Mr. Benitez was encountered on Feb. 5, 2009, at the Central Florida Reception Center, State Penitentiary (CFRC), through a joint effort with the Florida Department of Corrections and ICE Enforcement and Removal Operations (ERO) Criminal Alien Program in Miami after he was identified as being amenable to removal. Mr. Benitez entered ICE ERO custody on June 15 at the Baker County Jail and subsequently was transferred to Krome SPC on June 16 pending immigration removal proceedings. He had the opportunity to present the facts of his case before an impartial immigration judge who ordered him removed from the U.S. to Mexico on Nov. 9 after finding him ineligible for immigration relief. BENITEZ reserved appeal which is due Dec. 9.
Mr. Benitez’s criminal convictions include Use of Possess drug paraphernalia on April 5, 2004; Use of Possess drug paraphernalia on June 1, 2007 and Burglary of an Unoccupied Dwelling on Jan. 30, 2009.”
Benitez was startled by the inaccuracies. First, he arrived in the States, legally, when he was three years old not sixteen as ICE suggests. Benitez speaks perfect English with no accent, something that wouldn’t happen if he’d arrived at sixteen. Also, he knows nothing of any conviction in 2007. Only one prior conviction was mentioned at his sentencing in January of 2009. “An acquaintance borrowed my car and left a pipe discovered by police,” Benitez says of the second conviction in 2005,a misdemeanor. Furthermore, a 9-0 Supreme Court ruling in the summer outlawed deportations of legal residents for minor drug violations, like those that ICE referenced. In rendering that decision Justice John Paul Stevens explained, “We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an 'aggravated felony”.
Benitez continued, “I’m facing deportation because of the burglary, and I’d be facing deportation with or without the second conviction.” He says because of the IRRIRA, while his immigration judge was “impartial”, he also had no discretion and had no choice but to order the deportation. That crimes is considered one of “moral turpitude”, a legal term referenced in IRRIRA, and calls for automatic deportation. Verdin agrees with that assessment.
Benitez is no angel. He has a previous misdemeanor conviction of drug paraphernalia possession. He also spent time in rehab in his 20’s for a heroin addiction. Finally, he didn’t inform his last employer, the now defunct Pan American Mortgage, of his criminal arrest while he worked there as a reverse mortgage specialist. On the other hand, while in prison, he quit drinking and smoking. More remarkably, he had an amazing prison experience in which he taught his murderers and rapists colleagues mysticism, meditation, and spirituality. Those lessons were so legendary that he earned the nickname “The Maestro” and he created the prison version of an AP class on mysticism. In this class, 5-7 of his best students would spend an hour in the evening in the corner of the dormitory that housed the inmates learning the finer points of mysticism. He continues to teach mysticism to the detainees at KROME. Furthermore, Benitez says, “deporting me is tantamount to a death sentence,” because of the situation South of the border and the fact that all his family lives in the States.
Finally, his criminal attorneys found a last minute Hail Mary. According to court transcripts, not only did Benitez’ lawyer not inform him that the sentence would lead to deportation, the court also failed to do so. This, according to his criminal attorneys, violated his rights and they’ve filed a motion for post conviction relief to reduce his sentence as a result. Unfortunately, that motion languishes in the criminal court system of Brevard County with no explanation. Meanwhile, Benitez is at the mercy of the ICE bureaucracy. With a final order of deportation pending, Benitez can be deported at any time.
The last time an individual facing deportation received public support was in the case of Rigo Padilla, an illegal immigrant who got caught drunk driving. In that case, the Illinois Coalition for Immigrant and Refugee Rights championed the cause of Padilla, “One of the reasons we championed Rigo's case is because several people and groups contacted us about his case. He is a young man who has been involved helping his community since a very young age. He is an outstanding student who has the support and admiration of many professors, community leaders and fellow students. Our involvement on his case was not because he is undocumented but because of his contributions to the community as an individual,” said their spokesperson, Catherine Salgado of their involvement in Rigo Padilla's case.
The pressure from groups like ICIRR on behalf of Padilla finally caused the Obama administration to commute his sentence. ICIRR refused to do the same for Benitez only offering legal referrals, something he doesn’t need. Doesn’t Benitez’ transformation in prison and his ability to reach the worst criminals through mysticism and meditation make him admirable like Padilla? It’s hard not to notice that what makes Benitez different from Padilla and the hundred detainees released from KROME is that he is a legal resident of the country.
That’s why his case doesn’t fit nicely into the illegal immigration debate. In fact, he does. It’s not entirely clear why those detainees only facing immigration charges were released from KROME while Benitez, along with many other legal resident aliens, continued to toil in detention. Maybe, it was the back door amnesty that all conservatives fear, or maybe, it was just a one time unusual transfer. There is one thing that is clear. Mario Benitez came here in 1972. He lived here legally his entire life after wards. On one evening, in a drunken stupor, he committed a crime. Meanwhile, there are 12 to 20 million people who entered the country illegally and as such, lived here illegally every single day after wards. Yet, on immigration matters, it is Benitez that is the higher priority. That is the conclusion of the August 20th memo, the statement that Ms. Navas provided me, and it’s certainly the effect of IIRIRA. Only the media considers the illegal a higher priority. How ironic?
(ak05jy1a Link legal documents)
Previously posted at ChicagoElections 2011 and GapersBlock.com.
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