While Wake County Sheriff Donnie Harrison was trying to appease the press and the public last month about a joint federal-local initiative at the Wake County Detention Center to combat illegal immigration, Teodolo Nunez Bustos was sitting in a cell a few floors away. A suspected illegal immigrant, he was later held illegally, according to his lawyers.

Bustos had arrived at the lockup Aug. 9 after being picked up for possession of cocaine. After 17 days in jail, he pled guilty in Wake County District Court to a charge of possession of drug paraphernalia and was sentenced to time served.

Most inmates would have been released, but not Bustos.

Wake County officers who have been trained on the 287(g) program can delay the release of a prisoner they suspect might be living in the country illegally. Under an Immigration and Customs Enforcement detainer, prisoners can be held for 48 hours while ICE takes them into custody and attempts to determine their immigration status.

Within that time, ICE must also file a Notice to Appear, requiring them to appear at a hearing in immigration court.

Yet, in Bustos’ case, his lawyers say, no such notice was filed. One day after the 48-hour deadline came and went, Bustos was still in jail, and at that point, according to his lawyers, legally a free man.

An ICE spokesperson refutes that claim, saying that Bustos was issued the notice Aug. 27. According to Ivan Ortiz, an ICE public information officer, copies of the notice should be available to those who had signed documents indicating that they were Bustos’ legal adviser.

Jim Melo, Bustos’ attorney, says he never saw nor knew of any such documents.

ICE would not provide the documents to the Indy.

“This is part of what’s wrong with the system,” says Melo. “How am I or any lawyer supposed to know what a client’s status is if we can’t get the right documents? I wouldn’t be doing my job if I took their words at face value.”

Melo isn’t the only attorney finding it difficult to navigate the complexities of the 287(g) program. The newness of the law, coupled with ICE bureaucracy, has left area immigration attorneys with the unenviable task of trying to unravel the 287(g) guidelines in order to aid their clients.

“What you’ve got with 287(g) is the collision of state and federal law,” Melo explains. “The guidelines are supposed to fill in the gaps, but what we’re seeing in Wake County is that more and more people are falling through the cracks where the 287(g) officers are not complying with the law.”

Of the 321 inmates processed by Wake County’s 287(g) officers since the program began earlier this summer, 201 were held for possible deportation. ICE spokesmen couldn’t say how many were kept in custody past the 48-hour deadline.

Melo spent much of last week in the Wake County Courthouse, looking for a Superior Court judge to hear his case that Bustos was being held unlawfully. Melo wanted to ask a judge to sign a writ of habeas corpus, which would have required Bustos’ immediate release.

On Aug. 29, Melo finally succeeded. After a short hearing, Judge Donald W. Stephens agreed that Bustos was being unlawfully confined and signed an order for his immediate release. Melo later arrived at the Department of Public Safety to deliver a signed copy of the order to the jail, only to find that just minutes before, ICE had released Bustos on his own recognizance after he was issued a Notice to Appear.

(To add to the confusion, jail sources say Bustos was held extra days because he refused to cooperate with a mandatory interview.)

Bustos is free, but he has a pending court date in Atlanta regarding his immigration status.

“He got out,” says Melo. “But unfortunately, until someone confronts this at a system level, this is going to keep happening.”

Last week at a seminar geared to area immigration attorneys, they commiserated on the difficulty in navigating a process they say is tangled in red tape. Immigration attorney Ricardo Vasquez, who has a client he says has languished in ICE custody for more than 70 days, says the problem starts at Wake County jail. If ICE places a hold on a prisoner’s release, the magistrate may not issue a bond even though it’s required by law. And when a bond has been issued, those trying to post it may be told they can’t because of the ICE detainereven if the detainer has expired.

Ironically, the more successful area lawyers are in challenging cases in which ICE was noncompliant with federal guidelines, the more efficient they force ICE to become at deporting their clients. “Basically, we’re forcing them to better about the process of deporting people,” says Melo. “But as long as they continue to make missteps, we’re going to try and get our clients out.”

Download court documents (PDF, 379 KB) related to this case.