A Hit or Miss Approach to Curbing Deportable Felons : Illegal immigration: Costs of systemwide breakdown are staggering. Enforcement agencies are overwhelmed.

Miguel (Mickey) Sanchez, R.J. Donovan State Prison inmate No. H04269, talks about el sistema that he has long since figured out. If he fears it, it does not show.

At 42, this illegal Mexican immigrant recites a litany of felony narcotics convictions--and five deportations--dating from when he was barely a teen-ager. That is why the California state prison system has housed him on and off for nearly a third of his life.

Notwithstanding yet another deportation at the end of his prison term, Sanchez promised to return to the San Fernando Valley and resume his career of crime.

“I don’t have any other option,” he said. “If I had money, OK, but I haven’t made money. I’m just a statistic.”

Sanchez is not like most illegal immigrants, who come to the United States to be rewarded for honest work. But like thousands of other immigrants wending their way through the criminal justice system, he is perhaps the most disturbing reminder of a border that is out of control.

The Immigration and Naturalization Service says that one of its top priorities is to keep foreign criminals out of the country and, if that fails, to find and deport them. A slew of laws back up the agency.

But enforcement, hindered more than anything else by the sheer volume of criminals, is often hit or miss. To most criminal immigrants--the majority of them are men from Mexico--deportation is an inconvenience at best.

The costs of this systemwide breakdown are many millions of dollars each year, and the trend looks to be more of the same.

In the last decade, the number of illegal immigrants jailed nationwide jumped an estimated 600%, while the number of deportable felons in federal prisons has more than doubled in the last six years. The largest numbers are involved with the narcotics trade; violent crimes are next.

The California Department of Corrections says that about 15% of the state prison population, all felons, are eligible for deportation. The U.S. Bureau of Prisons says that in federal prisons, more than 25% are eligible.

Statistics from prison, where inmates are easily counted, tend to be the most reliable. But even there, many deportable felons slip through the system and are paroled onto the streets.

The reasons range from bureaucratic miscommunications to official indifference to the fact that the understaffed INS is responsible for monitoring more than 4,500 state prisons and local jails throughout the United States.

“Many criminal aliens are unknown to the INS, even though convicted and incarcerated,” INS Commissioner Doris Meissner recently acknowledged to Congress.

Associate Atty. Gen. Webster Hubbell, who is overseeing the issue at the Justice Department, said immigrant criminals pose a very serious problem that the Administration hopes to tackle with more attention and funds.

Indeed, it seems everyone who is connected with the problem of crime committed by illegal immigrants is alarmed.

Immigrant rights groups worry that the crimes of some are being unfairly used to blacken the image of all. State and local governments--angry at Washington’s failure to control the border and, later, to reimburse costs--complain about scarce funds being eaten up.

Residents of all stripes say the last thing America needs is more criminals, regardless of whether they are from Latin America, Europe, Asia or the Middle East.

“If we look at the problem as traditional law enforcement--getting more and more police, more judges, more jails--no way are we going to resolve the problem,” said Los Angeles County Sheriff’s Cmdr. Alan L. Chancellor. Chancellor is chairman of the county’s ad hoc subcommittee on criminal immigrants, which has been examining the issue since 1989.

What studying the issue has shown Chancellor and others is that dealing with illegal immigrants after they commit crimes in the United States amounts to using their fingers to plug a leaky dam. The problem is much larger than any one agency--or the national government--can manage alone.

Even with a concerted effort, the problem--for the criminal justice system and society at large--defies an easy fix. U.S. laws that are designed to protect the rights of the innocent apply to citizens and foreigners alike.

Illegal immigrants have the right to criminal counsel at public expense. They have the right to a jury trial and to judicial appeals. They can appeal a deportation order too.

Moreover, many “deportable” felons cannot be deported, regardless of their crime. If their country refuses to accept them, or if they can prove that deportation would endanger their lives, the United States must keep them here.

The issue of criminal immigrants has been the subject of numerous studies and hearings, and the conclusions tend to echo the same refrain: Although criminals represent only a small fraction of the illegal immigrant population in the United States, the numbers are too large.

They are straining budgets and spreading fear.

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There is no evidence that illegal immigrants commit significantly more crimes than any other group, but the issues of crime and illegal immigration are an especially incendiary mix. For years, public officials hesitated to even mention the two in the same breath for fear of framing the problem in racial tones.

Now, however, they speak of its cost.

State Treasurer Kathleen Brown said the state spends more than $500 million each year to imprison criminal immigrants.

“This has nothing to do with any prejudice against any ethnic group and more to do with allocating our scarce resources,” said Jane Clausen, the Probation Department representative to Los Angeles County’s criminal immigrant subcommittee. “We look at criminals as criminals, never mind ethnicity.”

Los Angeles County says deportable immigrants cost the county’s criminal justice system more than $75 million a year for incarceration and prosecution. But this estimate, from May, 1990, does not include apprehension or any civil costs.

In a September report to the state Senate, San Diego said its position as the primary entry point for illegal immigrants has meant an annual cost of $151 million to the county’s criminal justice operation.

Although California tops the list, New York, Texas, Florida and Illinois also report thousands of illegal immigrants among those convicted and jailed for felony crimes.

Certain counties--Los Angeles, San Diego and Orange, Dade in Florida, Cook in Illinois, Harris in Texas--have been especially hard hit. As a result, Los Angeles, San Diego and a number of other counties are working more closely with the INS to identify deportable inmates.

The Los Angeles County Probation Department, the largest in the nation, reports that at least 12.4% of its adult felony caseload describe themselves as illegal immigrants. And in a one-month survey of the Los Angeles County Jail, also the nation’s largest, 11% of inmates identified themselves the same way.

But the jail survey is more than 3 years old and, as in other such state and local tallies, the inmates’ immigration statuses were not verified. There are, in fact, incentives for an illegal immigrant criminal to claim to be U.S.-born. Avoiding deportation is one.

So officials estimate that the real numbers are larger still, with costs continuously ratcheting up.

A report released this month by the minority staff of the Senate’s permanent subcommittee on investigations said that state and local prisons nationwide housed 53,000 illegal immigrants; in 1980, the number was far below 9,000. The number of deportable felons in federal prisons more than doubled between 1988 and 1993.

“Our least estimate is that there are about 450,000 aliens who have been convicted of a crime and who are in prison, in jail, on probation or on parole at this time,” the report said.

State and local officials complain bitterly that the federal government, incapable of keeping illegal immigrants out of the country, is failing to meet its obligation to pay for their cost.

“(Washington’s) solution is to dump it on us and make it disappear,” said Mark Tajima, an analyst with the county administrative office in Los Angeles.

Among the provisions of the Immigration Reform and Control Act of 1986 were general increases in all INS enforcement activities and an authorization for the U.S. attorney general to reimburse states for imprisoning illegal immigrants who are convicted of felonies. The authorizations were never funded.

The state of New York has even sued--so far unsuccessfully--to force the federal government to take such inmates off its hands.

Los Angeles County advocates transferring illegal immigrants who break state law into the custody of the federal government, a position helped by the Senate’s recent passage of a crime bill amendment authorizing the attorney general to do exactly that.

That way, the county suggests, illegal immigrant criminals could be housed on deactivated military bases or in new prisons that the state cannot afford to operate.

Although officially silent on any specific plan, the Clinton Administration has been sending signals of its concern. Atty. Gen. Janet Reno recently toured the border and later traveled to Mexico City to negotiate an agreement, which is not finalized, to transfer nonviolent, first-time offenders to Mexico.

And there are several other plans.

Brown recently told a congressional subcommittee: “The United States should negotiate agreements requiring that illegal alien convicts serve their full sentences in their own countries. It’s just common sense.”

But like most everything else associated with the problems of illegal immigration, this is far less simple than it sounds.

In the last six years, only nine foreign prisoners have transferred from a California prison to one in their native lands. That is because under treaties now, the prisoner must request the transfer, his country must agree to take him back, the United States must agree to transfer him, and both penal institutions must agree.

Clinton Administration officials say they are meeting with their Mexican counterparts to reach an agreement that would make such prison transfers to Mexico mandatory--with the United States picking up the tab for all Mexican costs, including incarceration--but the outcome is far from certain.

In the talks, U.S. constitutional issues, such as the 8th Amendment’s ban on cruel and unusual punishment and the 14th Amendment’s requirement of equal protection under the law, have been raised as stumbling blocks.

Immigrant rights advocates and others warn that the nation’s anti-immigrant mood must not be allowed to erode the constitutional principles that Americans hold dear.

Michael P. Judge, assistant public defender in Los Angeles County, said the reason he sits on the county’s criminal immigrant subcommittee is to guard against unnecessarily harsh procedures toward immigrant defendants.

“Do you think somebody will feel better if they are assaulted by somebody who is here legally instead of illegally?” he asked. “If they do, it is a symptom of a disease in this country. It’s a prejudice.”

Peter Schey, executive director of the Center for Human Rights and Constitutional Law, said: “I think the issue is really set up as a red herring to whip up emotions in a time when most politicians are in political hot water.”

“I think part of the reality of migratory patterns into the United States is you are going to have criminal immigrants. It comes with their cheap labor. You take the good with the bad. You exploit the good and you jail the bad, I guess. Seems to be the quick solution.”

But other, longer-term solutions appear far off. U.S. law enforcement officials are skeptical that foreign prisons would honor sentences handed down by U.S. courts. Once such inmates are released--if indeed they are ever jailed at home--chances are excellent that many will return illegally to the United States.

So far, legislating the problem has not worked.

U.S. law states that if an immigrant who has been deported after committing a felony re-enters the country--or tries to re-enter the country--he can be charged with a federal crime punishable by up to 15 years imprisonment, depending on the nature of the original felony.

Although the INS describes the law as a deterrent to re-entry, immigrants often ignore the threat, or are unaware of the law.

In numerous interviews, deportable immigrants--either those in the country illegally or others whose crimes violated the terms of their legal residency--openly said they would soon return.

Pedro Gonzalez, 22, had been caught moments earlier by a Border Patrol agent as he jumped from a hill within sight of the border crossing at San Ysidro. An illegal immigrant, Gonzalez said he had been deported three days before after serving two years in state prison for selling heroin.

Allowed to voluntarily return to Mexico, he said he would be back. “Only now I’m not going to hang out with criminals or guns or anything,” he said.

At the Los Angeles County Jail, inmate Carlos Humberto Morales Cotan, 22, scoffed at the notion that he had something to fear in the U.S. re-entry law. He had been ordered deported at a hearing an hour before, his second deportation in three years.

A self-described drug dealer serving five months for auto theft, he said he had crossed illegally into the United States so many times that he had lost count. “I’ve spent my life here,” he said. “I can’t get used to Mexico now.”

Morales, who is married with two small children in Mexico, said that over his wife’s objections he plans to keep living in the United States. “I’m going to come back, but to another state, maybe Washington or Nevada, where there are more benefits, where there’s more work.”

In 1992, Los Angeles County officials looked at this phenomenon through a computer search. They found that more than 40% of the deportable felons identified in their first jail study were arrested an average of two times in the following 12 months; 87% of those arrests were in Los Angeles County.

Additionally, 1,536 illegal immigrant defendants accounted for 10,989 arrests throughout the United States from 1958 through February, 1992.

And then there are felons such as 20-year-old San Minh D., a San Francisco resident who will probably never be returned to his native Vietnam.

San Minh, who goes by at least five aliases, entered the United States as a refugee, with his parents, when he was 7. He is in San Quentin State Prison now, scheduled to be released in May.

San Minh’s adult criminal record began in 1991 with a first-degree burglary conviction and includes a chain of arrests for other crimes--and assault, stealing cars, receiving stolen property--after that.

The INS has an immigration hold on him, and an immigration judge could order him deported, but international politics will probably interfere. The United States does not have diplomatic relations with Vietnam.

“Most likely he will declare that he is stateless,” said Michael Flynn, investigations chief for the INS’s western region. “And if we can’t show that a third country, like France for instance, will take him, then we will release him to the street.”

Prison Population

Out of a total California prison population of 118,995, the Immigration and Naturalization Service has immigration “holds” on 12,510. Another 6,424 have been labeled as “potentials” by prison officials.

Inmates with holds face a deportation hearing. All potentials--those inmates who have given officials reason to believe that they may be deportable--are supposed to be interviewed by the INS. The INS says an estimated 85% of the potentials will end up with a hold on them.

Counties Where Arrested: Top 10

1. Los Angeles: Potential: 3,300 Holds: 6,373 *2. San Diego: Potential: 433 Holds: 1,588 *3. Orange: Potential: 329 Holds: 1,216 *4. Santa Clara: Potential: 368 Holds: 332 *5. Fresno: Potential: 253 Holds: 372 *6. San Francisco: Potential: 237 Holds: 225 *7. Riverside: Potential: 150 Holds: 265 *8. San Bernardino: Potential: 104 Holds: 250 *9. Ventura: Potential: 65 Holds: 204 *10. San Joaquin: Potential: 60 Holds: 200

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Offenses:

Narcotics: Potential: 2,328 Holds: 5,243 *Murder/Manslaughter: Potential: 511

Holds: 1,510 *Burglary: Potential: 633 Holds: 1,395 *Robbery: Potential: 728 Holds: 1,235 *Assault: Potential: 511 Holds: 792 *Rape/Sex Crimes: Potential: 447

Holds: 799 *Kidnaping: Potential: 62 Holds: 200 *Vehicle Theft: Potential: 266 Holds: 446 *Theft/Receiving Stolen Property: Potential: 296 Holds: 399 *Driving Under the Influence: Potential: 394 Holds: 156 *Weapons Possession: Potential: 103 Holds: 167 *Arson: Potential: 12 Holds: 14 *Others: Potential: 133 Holds: 154

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Nations of Origin: Top 10

Mexico: Potential: 3,997 Holds: 9,758 *United States and Puerto Rico*: Potential: 969 Holds: 720 *El Salvador: Potential: 237 Holds: 524 *Vietnam**: Potential: 189 Holds: 158 *Cuba: Potential: 116 Holds: 169 *Guatemala: Potential: 73 Holds: 158 *Colombia: Potential: 46 Holds: 140 *Honduras: Potential: 47 Holds: 81 *Philippines: Potential: 33 Holds: 45 *South Korea: Potential: 62 Holds: 24

* Anyone born in the United States or Puerto Rico is a U.S. citizen and therefore not deportable. Officials say the inmates listed in this category, however, falsely claimed to be U.S. citizens.

The claims of those in the potential column are probably false, but must be investigated by the INS first.

** Prison officials say it is likely that because of an error in data entry, an additional 14 inmates with actual INS holds and 22 listed as potentials should be included in this category.

Statistics from the California Dept. of Corrections as of Oct. 31, 1993. All inmates listed are adult felons.