ALBANY — Two Schenectady siblings and their mother were sentenced Tuesday to time served for their convictions in a federal visa fraud case. The three had spent just days in jail.
Senior Judge Frederick Scullin took into account the family's situation in passing the sentence, he said. Specifically, he noted they've lived otherwise law-abiding lives in Schenectady for 17 years.
He also questioned why the case wasn't left in immigration courts.
"The law without compassion isn't just," Scullen said in imposing the time-served sentences.
The cases concerned siblings Mario and Jennifer Cardenas, and their mother, Susana Alarcon Moscoso, all of Schenectady.
The defense contended the mother brought herself and her children to the United States from Guatemala to flee an abusive husband.
Immigration cases against the three are underway and could lead to their deportation. However, their criminal defense attorneys indicated later that they hope the family's entire story, including the lives they've lived while in the United States, will help convince an immigration judge to let them stay.
Moscoso brought the family to the United States from Guatemala in 1999, when her children were 14 and 15. They came to Schenectady in 2000.
The visa fraud happened when they claimed to be from El Salvador; they were actually born in Guatemala.
Those born in El Salvador are eligible for special temporary protected status in the U.S. — a status for which Guatemalan citizens are not eligible — because returning to El Salvador may be too dangerous. The deception allowed the pair to live and work in the Capital Region for more than 15 years.
A federal court jury in June convicted Mario Cardenas, 34, and Jennifer Cardenas, 32, of six counts of visa fraud. They were charged in 2015. Moscoso pleaded guilty to visa fraud counts prior to trial.
Federal sentencing guidelines suggested sentences of between 6 and 12 months in jail for the siblings and between 0 and 6 months for Moscoso.
Prosecutor Jeffrey Coffman asked for sentences within those guidelines.
"The fact that you can understand it doesnt mean you can excuse it," Coffman said.
Scullen sentenced the each family member after hearing from them, in turn, as they appeared before him.
Jennifer Cardenas gave a tearful statement, apologizing and saying she didn't want to hurt anybody. She then appeared to reference her baby son and her family as she cried.
All three now have children who were born in the United States: Moscoso has a 14-year-old daughter; Jennifer Cardenas has an 11-month-old son; and Mario Cardenas has a 14-year-old son.
Mario Cardenas told of working hard and being involved in the community. He said he is raising his son the same way.
"I am going to continue to work hard," Mario Cardenas said after the judge imposed the sentence.
In addition to the time-served sentence, Scullen ordered each of the family members to undergo two years of supervised release and perform 20 hours of community service.
The immigration attorney representing the three could not be reached for comment after the sentencings. Criminal attorneys for Moscoso — Gene Primomo — and Jennifer Cardenas — Michael Jurena — said Moscoso and Cardenas are expected to remain free until their immigration cases are decided.
Mario Cardenas' attorney, James Gross, said afterward that Mario Cardenas was taken into custody to go before an immigration judge to seek bond for his release, pending the immigration case's resolution. That could happen as early as Wednesday, family said.