Crime and no punishment

A legal loophole lets illegal immigrants get out of jail nearly free

No matter what bleeding-heart notions lured them in the beginning, eventually those who toil at the business of crime and punishment tend to develop tough hides. But every now and then, a case makes its way through the criminal justice system that awakens outrage in the most scabbed-over heart.

Like the case of little Briana Cisneros.
At 10:10 a.m. on October 14, 1996, an ambulance arrived at the Parkland Hospital emergency room. Inside was Briana, a 21-month-old toddler, accompanied by the woman who had been taking care of her, an illegal immigrant named Maricela Martinez. According to police reports, the toddler had suffered an "acute head injury" resulting in a "skull fracture on the left side of the head, massive bleeding, retinal hemorrhaging, and...tissue swelling."

Martinez identified herself as the wife of Briana's father. Martinez said the toddler had fallen from a high chair, but the attending physician, Dr. Janet Squires, told investigators that the injuries were "consistent with [the child] being thrown against something with considerable force--force comparable to falling from a third-floor window or being in a major automobile accident."

She also said the wounds had been inflicted "30 to 60 minutes prior to [Briana's] being admitted to the hospital." In the stilted prose of police reports, officers predicted Briana's fate: "Doctor Squires states that death is probably inevitable."

The 24-year-old Martinez, a $5.50-an-hour food-service worker at Luby's in Plano, admitted that she had been "the sole caretaker of [Briana] between the hours of 8:00 a.m. until about 9:30 a.m." She was taken into custody on October 14--two days before Briana died--and charged with causing "serious bodily injury to a child," a first-degree felony that carries a punishment range of five years to life in prison. A magistrate set bond at $100,000.

Yet, it is what happened next that has even the crusty types who inhabit the Frank Crowley Criminal Courts Building outraged. Like a surprising number of illegal immigrants charged with serious crimes, Martinez somehow raised enough money to bond out of the criminal justice system and into the hands of the U.S. Immigration and Naturalization Service.

The INS took Martinez to its Denton facility and, on April 14, put her on a bus for Nuevo Laredo. Maricela Martinez is today a free woman, most likely wandering the streets of her native Apaseo in the state of Guanajuato in central Mexico. And because of a loophole in the law, it's likely that the bonding company that arranged her release for a fee will not have to forfeit Martinez's $100,000 bond.

Briana's tale has a number of county clerks, prosecutors, sheriff's deputies, and even criminal defense attorneys at the Crowley Building working to plug the hole in the criminal justice system.

"I can tell you that I am very upset about this case," says Stephanie Hudgins, the assistant district attorney assigned to prosecute Maricela Martinez. "I think that everybody should be held accountable for their actions, whether they are citizens or not."

Yet thanks to what some authorities describe as a series of "glitches in the system," every year dozens of illegal immigrants charged with crimes ranging from drug running to murder are shipped back to their native countries without being called to account for their misdeeds.

Privately, county authorities suggest that a number of criminal defense attorneys and bondsmen profit by advising their clients to take advantage of this loophole. The INS conservatively estimates there are between 35,000 and 50,000 illegal immigrants in Dallas County. Most are law-abiding people who work, pay taxes, and struggle to raise their children. But every year in Dallas County alone, several thousand illegal immigrants land in jail. About 800 are charged with serious crimes, and between 5 and 10 percent of those appear to get sent home without facing trial.

The INS has two full-time employees at the Dallas County Jail who interview all inmates listing a foreign place of birth. Following the interview, if the INS determines the person arrested is illegally in the country, the INS puts a "hold" on the case.

"A notation goes on their file sheet," explains Lyn Ligon, a spokesman for the INS. "So that when and if they are released for any reason--on parole, after they've served time, or if they bond out--they come into our custody." But once an illegal immigrant lands in INS custody, Ligon explains, "our only charge is to get them out of the country as expeditiously as possible. It's kind of a conflict of laws, in that the state system and the INS have different priorities."

Maricela Martinez's case shows how the system can work for an immigrant who would rather return home than face criminal charges. On March 21, after Martinez's family raised the money to post her bond, Martinez was released into INS custody. Since she was not yet convicted, the only charge she faced in the immigration system was illegal entry. Although she was eligible for bond, no bond was set or posted.

Instead, on April 14, Martinez appeared at a deportation hearing before U.S. Immigration Judge D. Anthony Rogers. Rogers ordered Martinez deported, and Martinez waived appeal. That afternoon, she was put on a bus bound for Nuevo Laredo.

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