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Va. county sues feds to learn status of detained illegal immigrants

- The Washington Times - Thursday, August 4, 2011

Prince William County on Thursday filed a lawsuit in federal court demanding the release of records related to the status of more than 4,000 criminal illegal immigrants that the county has detained and transferred to the Department of Homeland Security since 2008.

The county had filed two Freedom of Information Act (FOIA) requests to obtain the records, but the Department of Homeland Security has not fulfilled the requests, according to the county.

Officials began seeking the information after a high-profile incident last August in which Carlos A. Martinelly Montano, an illegal immigrant who twice had been convicted of drunken driving, was charged with fatally striking a Benedictine nun with his car while again driving drunk.

"We've waited a long time. We had to wait until we've exhausted all administrative remedies," said Prince William Board of County Supervisors Chairman Corey A. Stewart, at-large Republican. "I don't want to be overly dramatic, but there are literally people being raped, murdered and assaulted by other illegal aliens who have been in federal custody and should have been deported," he said.

A separate lawsuit, filed by the county in March, demanded that Homeland Security Department release a report detailing the circumstances behind Mr. Martinelly Montano's case. He was charged last year with felony murder, driving on a suspended license, a third drunken-driving charge, and maiming as a result of driving while drunk.

Mr. Martinelly Montano, who entered the country illegally with his family in 1996, had been released by the county into Homeland Security custody and was awaiting a deportation hearing when the incident occurred.

Homeland Security Secretary Janet A. Napolitano called for an investigation after the fatal accident into why Mr. Martinelly Montano had not been deported. A subsequent report from the department released in response to a Freedom of Information Act request from the conservative watchdog group Judicial Watch said that Mr. Martinelly Montano had been released by immigration authorities after showing that he was not a flight risk.

Prince William County officials released him from custody in October 2008 after his second drunken-driving conviction, after which Immigration and Customs Enforcement (ICE) began removal proceedings and released him back into the community under its supervision with a GPS tracker.

The Justice Department, though, delayed his deportation hearing multiple times, even as he had several minor run-ins with the law in 2009 and 2010 that were not reported to ICE.

Prior to filing its lawsuit, Prince William County also asked Congress to subpoena ICE to obtain the whereabouts of the illegal immigrants it had turned over to the agency.

ICE does not comment on pending litigation, a department spokeswoman said Thursday.

But Claire Guthrie Gastanaga, an advocate for immigrants, questioned whether there would be any benefit for the county from such a pursuit.

"The fact is, the folks have been turned over to ICE, and that process is still moving forward," she said. "So they sue and win. What do the county residents get out of that? I would want to know as a taxpaying county resident what benefit I would get out of that. I'm not any safer. It's not going to save any tax dollars."

Since January 2009, ICE has changed its policy regarding the apprehension, detention and removal of criminal aliens who pose a threat to the public, and ICE Director John Morton outlined the policies in a memorandum in June 2010.

Under the new policies, Mr. Martinelly Montano likely would have been detained had he been turned over to ICE, the report said. The department deported a record 393,000 illegal immigrants in fiscal 2010, about half of which were "non-criminal" immigrant violators.

A jury trial for Mr. Martinelly Montano is scheduled to begin Oct. 31.

Prince William County became the focus of national attention in 2007 when it passed an ordinance that initially would have required police to check the immigration status of suspected criminals if they had probable cause to think they were in the country illegally. It was later modified so that immigration status would be checked for anyone held under physical custodial arrest.

In the wake of the accident last August, Virginia Attorney General Kenneth T. Cuccinelli issued an official legal opinion in response to a request from Delegate Robert G. Marshall, Prince William Republican, saying that state police had the authority to check the immigration status of anyone they stop or arrest. A 2008 Virginia law requires law enforcement to check the immigration status of any person taken into physical custodial arrest suspected of committing another crime.

Gov. Bob McDonnell in September ordered the state Department of Motor Vehicles to stop accepting an Employment Authorization Document, or work permit, as proof of legal status. Mr. Martinelly Montano used the document when applying for an identification card, police said.

Mr. McDonnell, a Republican, also sent a letter to Ms. Napolitano this year pressing her to approve the state's application to enter into a federal program known as 287(g), which deputizes local law enforcement agents to enforce certain federal immigration laws.

A handful of Virginia jurisdictions participate in the program, including the town of Herndon, Loudoun County, Prince William County, and the cities of Manassas and Manassas Park.

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