INS Inmate Freed in Rare Victory

After spending nine months behind barbed wire at the INS Mira Loma Detention Center, fighting and praying for the right to stay in the United States, Hermogenes Canales was released this week in a rare victory for a legal immigrant convicted of a crime.

Tough U.S. immigration laws imposed by Congress in 1996 make it nearly impossible to have a deportation order reversed by a judge.

But in the case of Canales, 41, a native of El Salvador, his attorney managed to do it by getting Canales’ original criminal conviction vacated.

Until Tuesday, Canales was among 14,500 “criminal aliens” being held in 15 makeshift prisons nationwide by the Immigration and Naturalization Service. Last year, the federal government detained 153,000 noncitizens and deported more than 55,000 who had committed crimes.

All have served their sentences--in some cases, years ago--but have spent months in federal custody without bail awaiting a decision on whether they would be deported.

Canales was convicted of statutory rape for having sex with a 16-year-old in 1987. He served his sentence of less than a year in jail and community service. He did not have another brush with the law until he was stopped at Los Angeles International Airport on April 1 as he returned from visiting his sick father in El Salvador.

Canales is not a U.S. citizen, but he is a legal, permanent resident. Under the 1996 law, noncitizens convicted of certain crimes known as aggravated felonies, including statutory rape, must be deported regardless of when they were committed.

Canales was ordered deported Aug. 3 by U.S. Immigration Judge Robert Vicar as his wife and daughter, both U.S. citizens, cried in a makeshift Lancaster courtroom. “We don’t have nothing,” his wife, Lillian, said that day. “It’s like a little ant fighting with the elephant.”

His lawyer, Vadim Yuzefpolsky, appealed the case, then turned to the only legal alternative still available: trying to get Canales’ original conviction overturned or vacated in criminal court. More and more immigration attorneys are resorting to the strategy in the face of tougher immigration laws.

“There is nothing else, once they are convicted of an aggravated felony, except vacating the judgment,” said Dan Korenberg, a partner with one of the largest immigration law firms in California.

Closer examination of the original court transcript revealed that Canales had not been warned before entering his plea that he could be deported for his crime. Because the court was legally bound to issue such a warning but had failed to do so, Canales’ original guilty plea was set aside.

Los Angeles County Superior Court Judge Robert Martinez vacated Canales’ criminal charges a day before Thanksgiving. On Tuesday, the Bureau of Immigration Appeals terminated the case and the INS set him free. “So he’s going to be home for Christmas,” Yuzefpolsky said.

Canales could not be reached for comment Wednesday.

Korenberg, whose firm handles hundreds of similar cases, said he could “count on one hand the number of cases that have been vacated.”

As the number of criminal noncitizens in detention continues to rise, national organizations such as the ACLU and the National Immigration Forum are fighting to ease the 1996 law. The number of detainees at Mira Loma rose from 600 in early 1998 to 850 last June, causing crowded conditions and inmate disturbances.

Five bills are pending in the House of Representatives and two in the Senate that would modify the 1996 immigration law.