Is Global Warming Melting ICE’s Immigration Detainer Glaciers?

January 14, 2014
By Hanging Out with Carl Gunn


  • There are now 16 separate cases approving bond for defendants even though the defendants were in the country illegally.
  • The cases also suggest that an immigration detainer alone has almost no relevance to the detention issue.
  • You can not only argue against detention but can argue that the government isn’t even entitled to a detention hearing in most non-violent, non-drug crime cases.


Last year and the year before, I put up a couple of posts on the subject of bail for defendants who were in the country illegally and subject to ICE immigration detainers as a result. (See “Can ICE Really Ice Your Client Even When He Gets a Bond in a Criminal Case? Or Is There a Way to Melt ICE?” in the May 2012 link at the right, and “The Ice ICE Is Using to Ice Your Client Is Melting a Bit” in the October 2013 link at the right.) The posts laid out some arguments about how and why an immigration detainer (1) shouldn’t be a basis for denying bond in the criminal case and (2) shouldn’t be used to prevent release on bond if and when a bond is set and posted.

I recently got another e-mail on one of the e-mail lists I’m on with some additional materials on this and so I thought I’d revisit the issue and share those materials. They include an appellant’s opening brief and ACLU amicus brief in an appeal of a denial of bail in Iowa, attached here and here, and a really helpful article from the National Immigration Project of the National Lawyers Guild, attached here and also found at the National Immigration Project website linked here. Those materials summarize the arguments in more detail and collect even more cases, so they’re a wonderful resource for the arguments in this area. They also add the argument that an immigration detainer alone – as opposed to the defendant’s connections (or lack thereof) to a foreign country – has almost no relevance to the detention issue.

It struck me as I was reading these materials that we’re now far beyond just a few cases that the government can try to characterize as rebellious outliers. Looking back on my prior posts, you can find 8 separate cases that support our position. The briefs and articles I’ve linked in this post add, by my count, 8 more cases, for a total of 16. To list them, we have United States v. Xulum, 84 F.3d 441 (D.C. Cir. 1996); United States v. Blas, No. CRIM. 13-0178-WS-C, 2013 WL 5317228 (S.D. Ala. Sept. 20, 2013); United States v. Sanchez-Martinez, No. 13-cr-00236-JLK, 2013 WL 3662871 (D. Colo. July 12, 2013); United States v. Tapia, 924 F. Supp. 2d 1093 (D.S.D. 2013); United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Ore. 2012);United States v. Castro-Inunza, No. 3: 11-CR-00418-MA, 2012 WL 1697401 (D. Ore. May 14, 2012); United States v. Morales, No. 11-cr-20132-09-KHV-DJW, 2012 WL 603520 (D. Kan. Feb. 24, 2012); United States v. Jocol-Alfaro, 840 F. Supp. 2d 1116 (D. Iowa 2011); United States v. Marinez-Palino, No. 11 CR 064, 2011 WL 902466 (N.D. Ill. Mar. 14, 2011); United States v. Villanueva-Martinez, 707 F. Supp. 2d 855, 857 (N.D. Iowa 2010);United States v. Barrera-Omana, 638 F. Supp. 1108 (D. Minn. 2009); United States v. Lozano-Miranda, No. 09-cr-20005-09-KHV-DJW-5, 2009 WL 113407 (D. Kan. Jan. 15, 2009); United States v. Montoya-Vasquez, No. 4:08CR3174, 2009 WL 103596 (D. Neb. Jan. 13, 2009); United States v. Chavez-Rivas, 536 F. Supp. 2d 962 (E.D. Wis. 2008); United States v. Rembao-Renteria, No. 07mjg399 (JNE/AJB), 2007 WL 2908137 (D. Minn. Oct. 2, 2007); and United States v. Adomako, 150 F. Supp. 2d 1302 (M.D. Fla. 2001). There’s also two unpublished opinions not available on Westlaw authored by then magistrate judge, now district judge, Fernando Olguin right here in our own Central District of California, and the unpublished Ninth Circuit order I mentioned in my post last October. Those three opinions are all attached as appendices to the National Immigration Project article linked above.

This is a pretty good collection for a pretrial detention issue, since those issues generally don’t get written up in opinions because of their pretrial nature. (Do a check on how many published court of appeals opinions there are on detention and bond issues, and you won’t find very many.) To loop back to the titles of this and my other posts, we have not just a few cases that are melting some of ICE’s ice but maybe a global warming that’s melting ICE’s glaciers.

The opening brief in the Iowa case also suggests a good preliminary argument to make in these cases. Under subsection (f) of 18 U.S.C. § 3142, the government isn’t entitled to a hearing where it can even ask for detention unless (a) the case involves a crime of violence, a drug offense with a maximum sentence of 10 years or more, or some other type of offense listed in paragraph (f)(1), or (b) there’s “a serious risk that [the defendant] will flee” or a serious risk he will obstruct justice in some way. So you can argue lack of flight risk to keep the government from even getting a hearing on detention in most non-violent, non-drug crime cases. See the Iowa opening brief for a nice illustration of how you might make this argument.

To sum up, there’s some really good stuff out there. Your client’s immigration status shouldn’t come even close to being the absolute bar to bail that courts perceived it to be 20, 10, or maybe even 5 years ago.