While we’re on the subject of pretrial detention and bail (see last week’s post), I thought I’d offer some thoughts on another problem we run into in the pretrial detention and bail context – immigration detainers. The thoughts are triggered by a recent e-mail sent out by the FPD office here about a district court opinion from Oregon – United States v. Castro-Inunza, No. 3: 11-CR-00418-MA, 2012 WL 1697401 (D. Ore. May 14, 2012), which is linked here. It’s a wonderful opinion that holds that the mere fact the defendant has an immigation detainer does not mean he’s ineligible for bail. The opinion notes that an immigration detainer is not listed as a ground for mandatory detention, notes that an immigration detainer is not even included in the factors that 18 U.S.C. 3142(g) directs a court to consider in deciding whether to grant bail, and concludes that “flight risk” under the Bail Reform Act means voluntary flight, not the possibility of involuntary “flight” in the form of deportation. On this last point, the court quoted language that an Iowa district court opinion in turn quoted from a Nebraska district court opinion that strikes me as a nice piece of irony: “[T]he Bail Reform Act does not permit this court to speculate on the ‘risk’ that a defendant would not appear in this court due to his being removed from this country by the same government that is prosecuting him.”Castro-Inunza, 2012 WL 1697401, at *6 (quoting United States v. Villanueva-Martinez, 707 F. Supp. 2d 855, 857 (N.D. Iowa 2010) and United States v. Montoya-Vasquez, No. 4:08CR3174, 2009 WL 103596, at *4 (D. Neb. Jan. 13, 2009)).

Castro-Inunza also makes a nice point that an undocumented person who keeps returning to this country because he or she has extensive family and community ties here is in a way the opposite of a flight risk:

[T]he government’s position on flight is undermined by Defendant’s demonstrated desire to remain in this country. He sought and achieved permanent resident status, has been persistent in pursuing legal proceedings to overturn the felony conviction that resulted in revocation of permanent resident status, and – to the Government’s understandable frustration – apparently keeps coming back to this country despite the Government’s efforts to keep him out.

Castro-Inunza, 2012 WL 1697401, at *4.

Of course, there remains the question of whether getting bail for someone who has an ICE detainer is just a Pyrrhic victory, since the detainer seems to mean the person will just be transferred into ICE custody. And sitting in ICE custody may be worse, because the BOP probably won’t give credit for that custody time against any sentence that’s eventually imposed. There are a couple of options that you can at least consider as a way to address this problem, however.

First, there’s the option that the defendant in Castro-Inunza was exploring. He “was taking steps to address the detainer and his deportation order in separate proceedings with separate counsel.” Id., 2012 WL 1697401, at *3. Remember that all an immigration detainer means is the person will go into immigration custody for immigration proceedings – if ICE decides to execute the detainer. Once in immigration custody, the defendant can ask for an immigration bond. That doesn’t guarantee the defendant will get a bond, and there are some defendants who are technically ineligible for bond, but it’s certainly worth consulting with an immigration attorney about the possibility.

There’s also a second very interesting argument out there that was developed by a deputy federal public defender here in Los Angeles based on litigation in a couple of other districts. That’s an argument that ICE can’t detain a defendant if he’s been ordered released in a federal criminal case under the Bail Reform Act. This argument has support in at least one published district court opinion – United States v. Adomako, 150 F. Supp. 2d 1302 (M.D. Fla. 2001) – and has persuaded a magistrate in a couple of cases in our district. A motion which I filed in one of my cases (shamelessly plagiarized from the deputy who did the real work), with exhibits that include the cases in this district where the argument has worked, is linked here. The motion lays out the argument in full detail, but the gist of it is two points.

The first point is based on 18 U.S.C. 3142(d). That provision authorizes the temporary detention of a defendant who is undocumented for a period of up to 10 days. But it places two important limitations on the government’s use of that detention authority. First, this temporary detention is “to permit . . . deportation or exclusion.” 18 U.S.C. 3142(d). This suggests the government can transfer the defendant into ICE custody only if it’s going to move forward with removal or exclusion proceedings, which is doubtful if the government has just instituted criminal proceedings for which it needs the defendant present.

Second, section 3142(d) says that if the defendant isn’t taken into ICE custody, he or she “shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings.” Id.(emphasis added). That is, if the government chooses not to transfer a defendant into ICE custody within a 10-day period of time in order to proceed with deportation or exclusion, the Bail Reform Act trumps other laws that might apply to a noncitizen defendant, including immigration law bail and detention provisions. In other words, ICE can’t take the defendant into custody and keep him on “ice” (pun intended) as a substitute for the pretrial detention that the criminal prosecutors were denied in the criminal case.

There’s also a constitutional argument. The Supreme Court has held that immigration detention violates the Due Process Clause if it exceeds a time period “reasonably necessary to secure the alien’s removal.” Demore v. Kim, 538 U.S. 510, 526 (2003) (citing Zadvydas v. Davis, 533 U.S. 678, 699 (2001)). In Demore, the Court upheld a mandatory detention provision in 8 U.S.C. § 1226(c) against a due process challenge on the ground that the detention was “pending . . . removal proceedings.” Id. at 526-28; see also id. at 530 (“Detention during removal proceedings is a constitutionally permissible part of that [removal] process.” (Emphasis added.)). The Supreme Court’s recent due process jurisprudence thus holds that ICE may detain an alien onlyduring removal proceedings, and even then, only as long as reasonably necessary to carry out the removal proceedings.

So immigration detainers aren’t necessarily the hopeless obstacle we might sometimes think they are. There’s a good argument that an immigration detainer shouldn’t be a basis for denying bond in the criminal case. And it’s not necessarily the Pyrrhic victory you might think it is at first impression. First, there may be the possibility of an immigration bond if and when the defendant is transferred to ICE custody. Second, there’s arguments that ICE has no business detaining your client unless it’s going to move forward with the removal or exclusion proceedings, which is extremely unlikely as long as there are criminal charges pending.

If anyone’s had any good experiences in this area, please share them with a comment.