Feds Say Missing Soldier's Illegal Immigrant Wife Not Likely to Be Deported

The wife of an Army specialist missing in Iraq could be deported because she is an illegal immigrant, but U.S. authorities say they have no intention of doing so in the foreseeable future, FOXNews.com has learned.

Army Spec. Alex Jimenez, 25, has been missing since May 12, when his unit was ambushed by insurgents. His wife, Yaderlin, was a resident of the Dominican Republican and entered the country illegally in 2001. The two married in 2004 and now live in Lawrence, Mass.

Procedures that could lead to her deportation began in 2006, but U.S. Immigration and Customs Enforcement officials alongside the Jimenez family attorney halted those proceedings before a deportation order could be issued, ICE spokeswoman Jamie Zuieback told FOXNews.com.

Yaderlin Jimenez's lawyer says she could still face deportation because ICE could reopen the case, but the case is in an inactive status in a New York immigration court, Zuieback said.

"There would have to be a proactive effort to reopen it, and that's not something that's been done in the last year and a half," and there are no plans to do so, Zuieback said.

"We certainly along with other Americans hope for Spec. Jimenez's safe return," she said.

The case has drawn the interest of Massachusetts Sens. John Kerry and Edward Kennedy, both Democrats. Kerry on Wednesday sent a letter to the Department of Homeland Security asking that Yaderlin Jimenez not be deported while the search for her husband continues, and Kennedy said he has been in contact with DHS and is "very concerned" about the situation.

"Under no condition should our country ever deport the spouse of a soldier who is currently serving in uniform abroad," Kerry said, in a statement provided to FOXNews.com.

In the letter to Homeland Security Department Secretary Michael Chertoff, Kerry wrote: "I do not believe that Yaderlin should have her stress and grief compounded by additional worries about her own immigration status. I request that no further action be taken (in) Yaderlin's case while her husband is missing in action. As Yaderlin waits to hear what has happened to her husband I ask that she be allowed to stay in our country."

"I believe this is a very real test of our government's compassion for a military family which has already made enormous sacrifices for the United States," the letter continued.

Vincent Morris, a spokesman for Kerry, said the senator is also looking into whether this is a more widespread problem in the Army.

The matter is also Kennedy's radar screen. Kennedy is the leading Democrat at the negotiating table for immigration reform measures being considered in the Senate.

"I'm very concerned about the situation facing Yaderlin Jimenez, and for millions of others, across the country. I've been in touch with the Department of Homeland Security on her behalf, and my office remains in touch with those assisting Ms. Jimenez and her family. I'm happy to assist her and Spec. Jimenez's family during this difficult time," Kennedy said in a prepared statement.

Kennedy spokeswoman Melissa Wagoner, asked if Kennedy had a position on Yaderlin Jimenez's deportation, or whether Kennedy believed this should be addressed in current reform proposals, responded by e-mail: "This is a good example of why the immigration system in this country needs to be fixed."

An Army spokesman provided a statement to FOX News, saying: "We are concerned about the welfare of the Jimenez family. ... When Mrs. Jimenez became an Army spouse, she joined a family that will never leave her." Army lawyers have also been in contact with the family lawyer to provide assistance, and a casualty assistance officer was assigned to Yaderlin Jimenez once her husband disappeared.

But it remains to be seen if efforts on the Jimenezes' behalf will be enough to prevent the deportation of Yaderlin Jimenez, whose maiden name is Hiraldo.

Jimenez family attorney Matthew Kolken, reached briefly at his Buffalo, N.Y., office, said Kerry's letter won't change his client's legal status, but "that letter is very good in that they (authorities) have it in their power to make a motion in her case" to reopen the proceedings.

Another immigration attorney said only an act of Congress would ensure the wife's legal status in the United States.

"Unless Congress passes a private bill on her behalf, she is subject to deportation," said Charles Kuck, an immigration lawyer and president-elect of the Washington, D.C.-based American Immigration Lawyers Association. The group has more than 10,000 members.

Morris said Kerry's office is "taking it one step at a time," and could consider other options including a private bill, although this letter seemed to be the fastest method available.

"The senator wanted to put up a bright red flag and say, 'hold on,' " Morris said.

Kuck, speaking with FOXNews.com from his Atlanta office, said he suspects this is a widespread problem among military families. He said he believes that throughout the country, there are between 1 million and 3 million families where one spouse is not a legal resident.

"I get a call like this at least two to three times today: 'What can I do to help my spouse, but he came in illegally?' " Kuck said.

Boston television station WBZ-TV reported that Alex Jimenez had requested through U.S. immigration services a hardship waiver to gain legal status for his wife.

"I can't imagine a bigger injustice than that, to be deporting someone's wife who is fighting and possibly dying for our country," Kolken told the station.

Kuck said that immigration laws right now pose a Catch-22 for families like the Jimenezes. The process that they likely went through requires the spouse who needs the waiver to first leave the country, and then go to the U.S. consulate in his or her home country. In this case, the Dominican Republic.

The waivers are rare. Kuck said only a few thousand a year are issued, and they favor Mexicans because of the volume of applications. But because Yaderlin Jimenez had been in the country illegally for longer than one year, she would be forced to stay away from the United States for 10 years once she left the United States, Kuck said.

Kuck said he does not fault Immigration and Customs Services for enforcing the law, but this particular problem penalizes the legal U.S. citizen spouses of the illegal residents. He said the law should be changed so the waiver hearings can be held inside the United States.

"When you're deporting the spouses of U.S. soldiers, I think the law's harsh enough," Kuck said. "Essentially we're punishing U.S. Citizens. That's why it's so essential to have comprehensive immigration reform."

Alex Jimenez and Pvt. Byron Fouty, 19, of Waterford, Mich., remain missing more than a month after the attack on their 10th Mountain Division unit. Their identification cards were found in an Al Qaeda safe house near Baghdad this weekend. A video posted earlier this month by a group affiliated with the terrorist group claimed the men had been killed, but did not provide specific proof of the claim.

The body of one soldier who was captured with Jimenez and Fouty has been found, and four other U.S. soldiers and an Iraqi interpreter were killed in the attack.

The Associated Press contributed to this report.