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Tuesday, July 20, 2004

newsobserver.com | State pays jail tab for alien

newsobserver.com | News
Habitual felon avoids deportation




Benitez was jailed three times before immigration detained him.



By ANDREA WEIGL, Staff Writer

RALEIGH -- Horatio Benitez should have been deported after he was convicted of his first felony in Wake County. He should have been deported after his second felony conviction.
So, Wake Superior Court Judge Narley Cashwell was amazed when the illegal alien appeared in his court earlier this month to answer for a third felony committed in Wake County.

"I was astounded someone could commit this many felonies and INS never did anything about it," Cashwell said. "Now he qualifies as a habitual felon."

Cashwell learned that Wake prosecutors twice during the past two years notified officials of U.S. Citizenship and Immigration Services (formerly INS) in Cary that Benitez was serving jail time and was an illegal immigrant. Regardless, Benitez was allowed to remain in this country and commit more crimes.

So far, Benitez's eight-month stay in prison has cost North Carolina taxpayers more than $16,000. That doesn't include how much was spent to house him at the Wake County Detention Center before his cases were disposed.

"All of that cost for somebody who shouldn't even be here," Wake District Attorney Colon Willoughby commented. "It doesn't seem to be working the way we think it should."

Court records show the immigration agency did issue a detainer once for Benitez, but prison officials never received it.

USCIS officials don't know why Benitez fell through the cracks. After looking at his file and talking to agents in the Cary office, Sue Brown, an immigration agency spokeswoman based in Atlanta, said she didn't have an explanation. "We don't know. It's not in the record," Brown said. "At the time, we probably didn't have the manpower."

But Brown said her organization takes these situations seriously. "We don't turn our backs on these kinds of issues," she said.

Benitez, 38, a native of Mexico, was first convicted of a felony in October 2001 for stealing a woman's purse. He spent seven months in prison.

His second felony was committed two weeks after he was released; this time he tried to steal a leaf blower from a downtown car dealership.

A week after Benitez was arrested, Wake jail officials noted that USCIS had placed a detainer on him. The detainer said there was an "investigation to determine whether [Benitez] is subject to removal from the United States."

The case was assigned to Assistant District Attorney Melanie Shekita, who notified immigration about the status of Benitez's pending criminal charge. In September 2002, Benitez was sentenced to at least four months in prison for felony breaking and entering.

The jail sent the detainer to prison officials so Benitez could go through deportation proceedings after he completed his sentence, but prison officials never received the document. So, in November 2002, Benitez was released from prison without immigration retrieving him.

Six months later, he was charged with breaking into the Hardee's restaurant on Hillsborough Street.

In August 2003, Shekita, who again was assigned to prosecute Benitez, sent a letter to USCIS officials notifying them about him and two other illegal immigrants with pending criminal charges. In the letter, Shekita wrote, "I know that you are swamped but I get so agitated when they keep coming back and breaking the law in our fair county."

Earlier this month, Benitez pleaded guilty to his third felony. He was sentenced to eight months in prison and is currently being held at the Wake County Detention Center.

Until Friday, there was no pending detainer on Benitez.

Phyllis Stephens, a spokeswoman for the Sheriff's Office, said jail staff called immigration Friday after receiving phone calls from The News & Observer about him and were told to place a detainer on Benitez.

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