By Paul Duggan and Carol Morello
Washington Post Staff Writers
Thursday, August 5, 2010; B01
Proponents of tougher immigration enforcement have seized on the case of a Bolivian man charged with killing a nun and critically injuring two others while driving drunk as a symbol of a badly broken immigration system.
Carlos A. Martinelly-Montano, 23, who entered the United States illegally at age 8 with his parents and sister, has been awaiting a deportation hearing after two convictions for drunken driving in 2007 and 2008. His case has been postponed three times -- and it is one of about 243,000 cases that are clogging immigration courts, according to statistics compiled by Syracuse University.
Because of the backlog, it takes 15 months to conclude the average case. Martinelly-Montano's has dragged on for nearly two years.
Immigrant advocates and groups such as Mothers Against Drunk Driving have said that this is a case about drunken driving, not illegal immigration. The nuns' order, the Benedictine Sisters of Virginia, has asked that the crash not be politicized.
But Martinelly-Montano has become Exhibit A in calls to stiffen immigration enforcement since his car swerved Sunday into the path of a vehicle carrying three nuns who were on their way to a retreat in Prince William County. He told police he didn't remember the crash, according to the arrest warrant. Prince William Commonwealth's Attorney Paul Ebert said he intends to ask a grand jury to return a second-degree murder indictment next month.
A wake will be held Thursday for Sister Denise Mosier, 66, and her funeral will be Friday. The two nuns injured in the crash, Sister Connie Ruth Lupton, 75, and Sister Charlotte Lange, 70, remained in critical condition Wednesday.
Corey A. Stewart, chairman of the Prince William Board of County Supervisors, said Wednesday that Congress, President Obama and Homeland Security Secretary Janet Napolitano "all have blood on their hands."
"This tragedy is not due to some mistake by some low-level staff at the Department of Homeland Security," said Stewart (R-At Large). "The president and Congress have deliberately starved the department to the point that [Immigration and Customs Enforcement] doesn't even have the resources to hold and deport illegal aliens who commit crimes in our communities."
Martinelly-Montano's journey through the immigration system is hard to verify, because privacy rules bar officials from discussing specifics of the case. Homeland Security officials will conduct an internal review to determine why the effort to deport Martinelly-Montano after his second drunken-driving arrest, in 2008, was incomplete at the time of Sunday's crash.
His mother, Maria Martinelly, said in an interview that she, husband Alejandro, Martinelly-Montano and a daughter entered the United States illegally from Bolivia in 1996. They filed for permission to live here permanently in 2001 -- an application that she described as still pending -- and were granted work permits in 2007, she said.
Martinelly showed the employment authorization cards, which were issued by U.S. Citizenship and Immigration Services, to a Washington Post reporter this week. But work permits do not confer legal status to undocumented immigrants, said Crystal L. Williams, executive director of the American Immigration Lawyers Association.
"That's actually a common misunderstanding of people who get employment cards," she said. "When they get the card, it makes them think they're legal. In fact, all the government is saying to them is: 'You have what appears on its face to be a valid petition for legal residency. So while we're trying to decide that, we'll let you work.' "
After Martinelly-Montano's first drunken-driving arrest, in Prince William in 2007, ICE apparently was not notified of the charge, said an ICE official who spoke on the condition of anonymity because of the sensitivity of the case. The agency's first contact with him was after his second drunken-driving arrest in 2008, also in Prince William, the official said. Martinelly-Montano served no jail time in the first case and 20 days in the second.
Although Martinelly-Montano had a work permit at the time of his October 2008 arrest, he had not been granted legal status, the official said. A month after that arrest, the official said, ICE began trying to have him deported.
Even if he had been granted legal status by then, Williams said, he still would have been "removable." She said ICE probably would have sought deportation based on the drunken-driving arrests, regardless of his status.
Martinelly-Montano's deportation hearing before an immigration judge was initially scheduled for April 21, 2009, six months after ICE had first encountered him, said Elaine Komis, a spokeswoman for the immigration court. In the meantime, rather than detaining him, ICE allowed Martinelly-Montano to remain free on his own recognizance, the official said.
Williams said ICE typically detains violent criminals pending deportation hearings but not convicted drunk drivers. "There's not enough room in the jails, and it's incredibly expensive," she said. "The federal government has got to make these choices, and does every day, on how to best use taxpayer resources."
Citing privacy rules, Komis would not disclose why Martinelly-Montano's hearing was repeatedly delayed -- from April 2009 to May 7, 2009; then to Dec. 3, 2009; then to Aug. 19.
Williams said that the number of continuances in Martinelly-Montano's case was "a bit unusual," although it is common for lawyers on both sides to seek delays. "That happens a lot," she said.
Critics of the immigration system say that's part of the problem.
"Here is a perfect example of how our government at various levels -- state, federal and local -- is failing to protect the public safety," said Greg Letiecq, head of the anti-illegal immigrant group Help Save Manassas. "If the government had done the job they promised us they would do, and kept illegal aliens out of this country, a nun would be alive today."
Staff writers Jennifer Buske and Kevin Sieff contributed to this report.