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Wednesday, April 28, 2010

The Long Strange Trip of Mario Benitez

Jerry Lemaine is facing an immigration nightmare. A bust for possession of marijuana and a subsequent conviction that wound with the penalty of probation may cost Lemaine the ability to stay in America. Lemaine is a legal resident alien that came here from Haiti as a youth. Yet, this pot bust may lead to his deportation.

When a police officer in this Long Island suburb found a marijuana cigarette in Jerry Lemaine’s pocket one night in January 2007, a Legal Aid lawyer counseled him to plead guilty. Under state statutes, the penalty was only a $100 fine, and though Mr. Lemaine had been caught with a small amount of marijuana years earlier as a teenager, that case had been dismissed.

But Mr. Lemaine, a legal permanent resident, soon discovered that his quick guilty plea had dire consequences. Immigration authorities flew him in shackles to Texas, where he spent three years behind bars, including 10 months in solitary confinement, as he fought deportation to Haiti, the country he had left at age 3.

Under federal rulings that prevailed in Texas, Mr. Lemaine had lost the legal opportunity that rulings in New York would have allowed: to have an immigration judge weigh his offenses, including earlier misdemeanors resolved without jail time, against other aspects of his life, like his nursing studies at Hunter Business School; his care for his little sister, a United States citizen with a brain disorder; and the help he gave his divorced mother, who had worked double shifts to move the family out of a dangerous Brooklyn neighborhood.

It's a fate that Rigo Padilla also almost faced when a DUI conviction also nearly lead to his deportation. Like Lemaine, Padilla was a legal resident alien in the States and he'd come here as a youth. Following his arrest, he too was summoned in front of an immigration judge and faced deportation.

Padilla was arrested for drinking and driving in January. He admitted to police that he had "a few beers" while watching a football game with friends. He planned to only drive eight blocks from a friend's house to his own. He w

as stopped before he made it home after rolling through a stop sign.

Nobody was hurt in the incident and Padilla was given supervision, which under Illinois law wouldn't even result in a conviction, according to his immigration attorney Beatriz Sandoval.

But Padilla was reported to immigr
ation officials and now the young man faces deportation to Mexico, a country he hasn't visited since he left more than 15 years ago.

Padilla was given a reprieve not only by DHS but by the Supreme Court. His case could turn into a landmark for others in his position. The Supreme Court ruled that because Padilla's attorney didn't forewarn the immigration consequences of his pleading that he was denied "competent representation." In writing the majority decision, Justice John Paul Stevens likened deportation to banishment.

Mario Benitez, currently serving time in Brevard County Florida, is now also getting a taste of our immigration system. On May 7th, 2007, Benitez, following an evening of binge drinking, broke into his neighbor's home and stole his change change jar totaling just over $100. He was arrested the next day and subsequently confessed. For the next year, Benitez attempted to work out a plea agreement with prosecutors. He had no other criminal record. He eventually paid back the money to his neighbor.

He also hoped the circumstances that lead to his crime would weigh in his favor. He had moved to Florida from Chicago about a year prior. In the months leading up to his crime, his business tanked, he broke off his engagement with his girlfriend, and this lead to a serious drinking problem. The prosecution wouldn't agree to any plea and his fate was left in the hands of the judge.

Even walking into his sentencing on the 31st of January 2009, Benitez was still hoping to avoid jail. The judge was having none of it. He said that Benitez showed no remorse. He said that Benitez' action had violated the safety that everyone should feel in their homes, and the victims would never feel safe again in their home. The judge gave Benitez a sentence of 22 months. The sentence was eventually reduced to sixteen months and he's scheduled to be released on June 18, 2010.

Within months, Benitez received notice from the Department of Homeland Security of a motion to have him deported. Benitez arrived in America with his parents from Mexico in 1972 when he was four years old. His family came here initially just to visit but then his parents overstayed their Visa. His entire family would eventually straighten out their legal status. The rest of his family even eventually became U.S. citizens however Mario was going to school at the time and he's been a legal resident alien. That said, aside from a few vacations in Mexico, Mario Benitez has lived in America full time since he was four years old.

Now, because of his conviction, the Department of Homeland Security is attempting to deport him to Mexico. Benitez no longer has any family there. He has no friends or contacts and so he'd be deported to a foreign country with no resources.

In his last correspondence to me (for full disclosure I consider Benitez a friend), he called the Padilla decision akin to hitting the lottery. Like Padilla, Benitez claims that he wasn't made aware of the fact that a plea of guilty would lead to his deportation. Now, Benitez is hoping that the recent Supreme Court decision will pave the way to his own case being given another look.

Lemaine was arrested in New York and incarcerated for more than two years in an ICE detention center in a room with dozens of others facing deportation. He lost fifty pounds during his incarceration. Benitez is in the hands of Brevard County and reports to be in good health. Yet, he's forced to mount a defense pro se against his deportation order. He tells me that he needs some legislator somewhere to speak out on his behalf. That's no easy task. He's now a convicted criminal. The law states that a non citizen guilty of a felony will be deported. So, the clock ticks on his uncertain future.


AG said...

The Federal Government has defined many offenses which are considered misdemeanors as "aggrivated felonies" which allow for deportation.

I'm actually a little surprised the Supreme Court ruled in his favor. Traditionally, the law has said attorneys aren't required because deportation is not a criminal punishment, only a civil matter.

Anonymous said...

How can you send someone back to mexico when they lived all their lives here in the states??? it is so unfair!! we see rapist and killers get off all the time, I guess for Mario Benitez is his luck and he does not have the money that would get him off!!!! shame!!!! american goverment!!!