Immigration records detail DUI crash suspect’s many deportations

San Diego Union-Tribune (CA)

May 24--An unauthorized immigrant charged with DUI and hit and run in a crash that seriously injured a 6-year-old San Ysidro boy was deported or allowed to voluntarily return to Mexico 17 times over the past 14 years without facing criminal charges, according to Department of Homeland Security immigration records released Wednesday.

The timeline of Constantino Banda Acosta's run-ins with immigration and border authorities, beginning in 2002 and ending with the May 6 crash, suggest a person who is highly motivated to be in the U.S., at times crossing within days of being removed to Mexico. Records show Banda, 38, has repeatedly tried to enter the U.S. illegally with counterfeit documents, by crossing the border fence and at least once in the trunk of a car.

He was last deported in January by Border Patrol agents patrolling Tecate, and it is unknown when and how he entered the U.S. to be arrested near the scene of the crash that put Lennox Lake in the hospital for 18 days. Lennox was released from Rady Children's Hospital on Tuesday and is recovering at home in "delicate condition" with deep skull fractures and also battling infections, rash and fever, his aunt said.

Banda's records show that three of the deportations occurred after he was arrested on state charges, including domestic violence and DUI, and was picked up by Immigration and Customs Enforcement officers from local jails.

It wasn't until his arrest after the crash that he was charged criminally with violating federal immigration law.

Border Patrol Agent Terry Shigg, president of the San Diego chapter of the National Border Patrol Council, said criminal prosecutions and the threat of prison sentences aren't being used enough to deter repeat offenders like Banda. That is expected to change under President Donald Trump's administration, which has promised more prosecutions as part of its crackdown on illegal immigration.

"It's one of those things you get so used to that it becomes the norm, to know that multiple times throughout my career I've returned the same group of people (to Mexico) multiple times on the same day," Shigg said. "It's frustrating. It's almost as if there's a loophole, a fault in the system and no one wants to fix it. Recidivists come through and there's laws on the books to stop them. ... After about the 10th time, a flag should go up that in about three months this guy is going to be back, because that's what happened in the past."

The U.S. Attorney's Office in San Diego has historically prosecuted unauthorized immigrants with serious criminal backgrounds who have crossed multiple times or under aggravated circumstances. Banda possibly didn't appear a major threat because he had misdemeanor convictions, not felonies, and because his deportation record was spread out over several years, said San Diego immigration attorney Andrew Nietor, who is not involved in the case.

It is unknown if law enforcement referred any of Banda's cases to prosecutors.

"It's unclear where the decision was made," Nietor said. It could have been the Department of Homeland Security or the Department of Justice, he said. The caseload, resources and priorities of both agencies could have played a role, the lawyer added.

People who aren't prosecuted criminally -- as in Banda's case -- are handled through administrative immigration court or returned to Mexico under various methods.

One of those options is an expedited removal order issued by law enforcement authorities, often after catching someone attempting to enter illegally. The immigrant is returned quickly to Mexico without seeing an immigration judge. Such orders can be reinstated if the person is found illegally in the country again.

A civil immigration judge issues formal removal orders after a determination has been made on an immigrant's legal status.

Unauthorized immigrants are also sometimes allowed to voluntarily return to their home country quickly by signing a waiver. Or, if immigrants are at a port of entry trying to get in, they might be allowed to withdraw the request for admission and just turn around.

Using Homeland Security immigration records and San Diego County Superior Court records, a timeline of Banda's encounters with law enforcement emerges:

--Nov. 12, 2002: Deported to Mexico at the Tecate Port of Entry based on an expedited removal order issued after he attempted to illegally enter the U.S. by presenting a counterfeit alien registration card.

--Feb. 9, 2003: Deported to Mexico at the San Ysidro Port of Entry based on an expedited removal order after Banda attempted to illegally enter the U.S. using counterfeit documents.

--Jan. 8, 2004: Deported to Mexico at the Calexico Port of Entry based on an expedited removal order issued after Banda attempted to illegally enter the U.S. by presenting a counterfeit alien registration card.

--July 19, 2004: Deported to Mexico at the Otay Mesa Port of Entry based on the reinstatement of a prior removal order following his arrest by the Border Patrol, which encountered him in the mountains west of Tecate.

--Dec. 29, 2004: Deported to Mexico via a port of entry in Nogales, Ariz., based on an expedited removal order issued after Banda attempted to illegally enter the U.S. at the San Ysidro Port of Entry concealed in the trunk of a vehicle.

--Feb. 26, 2006: Arrested on a DUI charge and later pleaded guilty to a misdemeanor. He was sentenced to five years' probation, a $1,925 fine and allowed to participate in a first-conviction program.

--April 8, 2007: Deported to Mexico at the San Ysidro Port of Entry based on an expedited removal order issued after Banda attempted to illegally enter the U.S. by falsely telling authorities he was a U.S. citizen. Banda also presented a Washington state identification card bearing his name.

--Aug. 24, 2007: Pleaded guilty to misdemeanor domestic battery two days after the offense and was sentenced to 60 days in jail. It appears he didn't serve that sentence. Banda was transferred to ICE custody by the Chula Vista Police Department based on an immigration detainer, then deported at the San Ysidro Port of Entry following the reinstatement of a prior removal order.

--March 12, 2008: Deported to Mexico at the San Ysidro Port of Entry following the reinstatement of a prior removal order. Banda was transferred to ICE custody based on an immigration detainer lodged with Chula Vista police.

--Feb. 16, 2009: Voluntarily returned to Mexico by Border Patrol agents.

--June 23, 2009: Voluntarily returned to Mexico by Border Patrol agents in Yuma, Ariz.

--Jan. 12, 2011: Pleaded guilty to misdemeanor driving with a suspended license. He was sentenced to 10 days in jail, three years' probation and a $1,400 fine.

--Jan. 18, 2011: Deported to Mexico at the San Ysidro Port of Entry following the reinstatement of a prior removal order by ICE after Banda was transferred from the George Bailey Detention Facility to ICE custody.

--Jan. 22, 2011: Returned to Mexico at the San Ysidro Port of Entry after being allowed to withdraw his application for admission when he attempted to enter the U.S. using an entry document belonging to someone else.

--Feb. 9, 2011: Returned to Mexico at the San Ysidro Port of Entry being allowed to withdraw his application for admission.

--March 4, 2011: Deported to Mexico via the San Ysidro Port of Entry based on an expedited removal order issued after Banda attempted to illegally enter the U.S. by presenting a counterfeit Mexican passport.

--March 27, 2011: Voluntarily returned to Mexico via Harlingen, Texas. Banda was arrested by Border Patrol agents after he illegally entered the U.S. on foot near the Otay Mesa Port of Entry.

--Jan. 13, 2012: Charged with driving with a suspended license with a prior DUI. He was sentenced to three years probation and $660 fine.

--Jan. 10, 2017: Deported to Mexico at the San Ysidro Port of Entry based on the reinstatement of a prior removal order. Banda was picked up by ICE officers in the San Diego Central Jail.

--Jan. 17, 2017: Deported to Mexico via San Luis, Ariz., based on an expedited removal order Border Patrol issued. Agents patrolling the border near Tecate apprehended Banda.

In Banda's most recent involvement with law enforcement, Border Patrol agents found him on May 6 about a mile from the wreckage of the Lake family's Honda Accord. Authorities say Banda sped through a stop sign in San Ysidro and broadsided the car, as the family was returning from Disneyland.

The driver of the damaged pickup kept going. Agents found the truck and arrested Banda and an unnamed passenger.

Banda's public defender said in court last week that she intends to show Banda was not the driver and requested immigration authorities not deport the passenger pending further investigation.

Nietor, the immigration attorney, said while he has heard of unauthorized immigrants with extremely long immigration records, Banda's case shouldn't be used as a typical example.

"I think this is the sort of case the Trump administration tries to politicize and tries to portray as typical, but it's not typical. One of the reasons this case is noteworthy is because of the extreme circumstances," Nietor said. "Every study shows that the non-citizen population, including the undocumented, is more law abiding than the U.S. citizen population."

For Lennox's family, the immigration debate is far from their thoughts.

"I can't afford to be angry and/or dwell on why or how this could have happened," Lennox's mother, Ingrid Lake, said in a text to the Union-Tribune. "'What is happening and what do I need to do?' has been the only question that's mattered since the second we were hit by that truck," she said.

She said the family is grateful for the support it has received. "Thousands of people are pulling for Lennox to get well, and the love and support we've received makes it almost impossible for me to think about anything other than how appreciative I feel and relieved that Lennox is still here with us."

Staff writers Pauline Repard and Dana Littlefield contributed to this report.

kristina.davis@sduniontribune.com

Twitter: @kristinadavis

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