Judges re­ject ICE de­ten­tion prac­tices

D.C. court among those rul­ing bail, speedy-trial laws can’t be ig­nored

The Washington Post - - METRO - BY SPENCER S. HSU

Judges in the na­tion’s fed­eral crim­i­nal courts in­creas­ingly are balk­ing at what they call un­law­ful ef­forts by U.S. im­mi­gra­tion author­i­ties to con­tinue to de­tain peo­ple charged with en­ter­ing the coun­try il­le­gally, even af­ter they have been granted bail.

The rul­ings com­pli­cate the Trump ad­min­is­tra­tion’s “zero tol­er­ance” crack­down on de­fen­dants who are charged with il­le­gally cross­ing the bor­der but whom judges have de­ter­mined do not pose a flight or safety risk.

The de­ci­sions force prose­cu­tors to make a choice — charge de­fen­dants with il­le­gal en­try or reen­try and risk that a fed­eral judge re­leases them pend­ing trial, or keep sus­pects locked up in civil de­ten­tion pend­ing de­por­ta­tion pro­ceed­ings and forgo crim­i­nal pros­e­cu­tion.

A re­cent rul­ing by a fed­eral judge in Washington high­lights

hu­man and le­gal is­sues at stake, the case of a dish­washer from El Sal­vador who has a wife and two chil­dren in the Dis­trict, where he re­turned af­ter two de­por­ta­tions.

The surge in such crim­i­nal cases stems from an April 2017 an­nounce­ment by U.S. At­tor­ney Gen­eral Jeff Ses­sions pri­or­i­tiz­ing Jus­tice De­part­ment pros­e­cu­tions of en­try and reen­try crimes. More than 60,000 peo­ple have faced such crim­i­nal charges since then, with twice as many new pros­e­cu­tions this July, the most re­cent month for which data is avail­able, com­pared with the same month in 2017, ac­cord­ing to Syra­cuse Uni­ver­sity’s Trans­ac­tional Records Ac­cess Clear­ing­house, which mon­i­tors cases.

In­di­vid­u­als caught with­out doc­u­ments on a first of­fense can be charged with a mis­de­meanor, but any­one caught in the United States af­ter a prior de­por­ta­tion can be charged with a felony and face more than a year in prison. Im­mi­gra­tion-re­lated pros­e­cu­tions are now the ma­jor­ity of all fed­eral crim­i­nal cases, stretch­ing far be­yond states bor­der­ing Mex­ico.

Ad­vo­cates for im­mi­grants say the re­cent court rul­ings may limit the use of the crim­i­nal charges to pres­sure de­fen­dants to aban­don ef­forts to stay in the United States. The im­pact on over­all re­moval ef­forts re­mains to be seen, but courts ap­pear to be push­ing back at an ex­pan­sion of author­ity by prose­cu­tors and Im­mi­gra­tion and Cus­toms En­force­ment.

In the Dis­trict, one re­jec­tion of the tougher tac­tics came from U.S. Dis­trict Judge Royce C. Lam­berth, a 1987 ap­pointee of Pres­i­dent Ron- ald Rea­gan. On Sept. 26. Lam­berth said the gov­ern­ment can­not have it both ways — ask­ing fed­eral courts to deny bail to de­fen­dants await­ing crim­i­nal trial and then, if a judge dis­agrees, hold­ing them any­way in the im­mi­gra­tion sys­tem.

The de­ci­sion came in the case of Jaime Omar Vasquez-Ben­itez, 38, who court pa­pers say was pick­ing food up at a restau­rant in July when D.C. po­lice stopped him for sus­pected gang ac­tiv­ity and turned him over to ICE. Fed­eral pub­lic de­fend­ers say Vasquez-Ben­itez had quit a gang and fears for his life if he is de­ported.

He was charged in Au­gust with felony reen­try de­spite de­por­ta­tion or­ders in 2008 and 2014.

A fed­eral mag­is­trate and dis­trict judge ruled Vasquez-Ben­itez should be re­leased on bail, but U.S. mar­shals re­turned him to ICE cus­tody. De­fense at­tor­neys moved to en­force the re­lease or­der, and the case ended up in front of Lam­berth af­ter Vasquez-Ben­itez was in­dicted.

Lam­berth ruled that a land­mark 1966 U.S. bail statute specif­i­cally cov­ers mi­grants and must “trump” more-gen­eral im­mi­gra­tion laws, re­leas­ing Vasquez-Ben­itez into a high-in­ten­sity su­per­vi­sion pro­gram. He wrote that courts have long “up­held as sacro­sanct” the prin­ci­ple that no one can act as pros­e­cu­tor and judge at the same time, and that the Jus­tice De­part­ment can­not ig­nore bail rul­ings any more than it can shrug off a de­fen­dant’s right to a speedy trial.

The judge said prose­cu­tors can pur­sue both crim­i­nal charges and civil re­moval cases against de­fen­dants but must abide by a judge’s de­ci­sion to grant bail. Or they can forgo charges and keep de­fen­dants locked up in civil de­ten­tion while pur­su­ing de­por­ta­tion.

Peo­ple de­tained with­out valid im­mi­gra­tion doc­u­ments may well be worse off if un­charged, “lan­guish­ing” in­def­i­nitely with­out speedy trial or ac­cess to bail in ICE de­ten­tion camps far from fam­i­lies or coun­sel, the judge noted.

“Nev­er­the­less, the gov­ern­ment can do that” un­der im­mi­gra­tion law, Lam­berth wrote. “But so long as the gov­ern­ment in­vokes the juthe ris­dic­tion of a fed­eral court, the gov­ern­ment must con­sent to the Court’s cus­to­dial do­min­ion over the crim­i­nal de­fen­dants be­fore it.”

A de­ci­sion on whether to ap­peal is pend­ing. Bill Miller, a spokesman for the U.S. at­tor­ney’s of­fice for the Dis­trict, said the of­fice was re­view­ing the rul­ing.

In a July 2017 Jus­tice De­part­ment bul­letin to 94 U.S. at­tor­ney of­fices na­tion­wide, Ore­gon fed­eral pros­e­cu­tor Gre­gory R. Ny­hus said that fed­eral crim­i­nal statutes and civil im­mi­gra­tion laws “are rec­on­cil­able” and that “courts should be en­cour­aged to har­mo­nize these statutes rather than fo­cus­ing on [one] to the com­plete ex­clu­sion of the other.”

The gov­ern­ment’s po­si­tion — that it can hold Vasquez-Ben­itez strictly for de­por­ta­tion on a re­in­stated re­moval or­der, un­re­lated to his pros­e­cu­tion — has yet to be de­cided by an ap­peals court.

Rul­ings by trial judges in sim­i­lar cases have var­ied. Since July 2017, fed­eral judges in Washington, Man­hat­tan, Brook­lyn, De­troit, Cleve­land and Austin have re­jected the gov­ern­ment’s ap­proach, draw­ing on a 2012 dis­trict court opin­ion in Ore­gon and a sim­i­lar 2015 rul­ing by the U.S. Court of Ap­peals for the 9th Cir­cuit that “the ex­ec­u­tive branch has a choice to make” be­tween hold­ing an un­doc­u­mented per­son for de­por­ta­tion or pros­e­cut­ing that per­son un­der crim­i­nal law and the Con­sti­tu­tion.

Fed­eral judges in Buf­falo and Philadel­phia have come down on the other side, say­ing that crim­i­nal and im­mi­gra­tion laws can “co­ex­ist” on “par­al­lel” tracks. Be­fore the Trump ad­min­is­tra­tion, prose­cu­tors would typ­i­cally drop crim­i­nal charges to pur­sue civil re­moval if a pre­vi­ously de­ported de­fen­dant won bail.

Yi­hong “Julie” Mao, staff at­tor­ney with the Na­tional Im­mi­gra­tion Project of the Na­tional Lawyers Guild, said the group was “heartened” by court rul­ings up­hold­ing un­doc­u­mented im­mi­grants’ right to bail and pre­trial re­lease based on fam­ily and com­mu­nity ties.

Mary Pe­tras, an as­sis­tant fed­eral pub­lic de­fender who is rep­re­sent­ing Vasquez-Ben­itez in the Dis­trict, de­clined to com­ment.

In court fil­ings, As­sis­tant U.S. At­tor­ney Ken­neth Clair Kohl ar­gued that the de­fen­dant’s case is not cov­ered by the 2012 rul­ing, be­cause ICE is hold­ing him solely to de­port him, not to pros­e­cute him.

The Sal­vado­ran man was first ar­rested in 1997, falsely claimed Mex­i­can cit­i­zen­ship and was al­lowed to go to Mex­ico, ac­cord­ing to court pa­pers. He was de­ported in 2008 af­ter serv­ing a three-year sen­tence for felony ob­struc­tion of jus­tice in the Dis­trict and again in 2014, be­fore he was caught for a fourth time this July.

Prose­cu­tors would have pros­e­cuted Vasquez-Ben­itez even in past years be­cause of what they said in court pa­pers was his “threat­en­ing, vi­o­lent be­hav­ior” and felony crim­i­nal con­vic­tion. Vasquez-Ben­itez was con­victed of ob­struc­tion of jus­tice for telling a woman in 2005 she would “pay the con­se­quences” if she called the po­lice, and a 2014 ar­rest war­rant in El Sal­vador said he has been charged with ex­tor­tion, prose­cu­tors said.

“There may come a time ... [when] im­mi­gra­tion pro­ceed­ings have con­cluded . . . forc­ing the United States to choose be­tween phys­i­cal re­moval and con­tin­u­a­tion of this crim­i­nal case. That time, how­ever, has not yet come,” wrote Kohl and As­sis­tant U.S. At­tor­ney El­iz­a­beth De­war in an un­suc­cess­ful ef­fort to de­tain the man.

Pe­tras told the court the man is a long­time restau­rant worker, and his wife works part time as a ho­tel house­keeper. Both have fam­ily nearby, and the cou­ple’s 3-year-old daugh­ter and 9-year-old son at­tended a re­cent court hear­ing.

Pe­tras ar­gued the man posed no flight risk, be­cause he is seek­ing to halt his de­por­ta­tion af­ter gang mem­bers in El Sal­vador sent him a mes­sage warn­ing that he had “signed his death war­rant” by quitting the gang.

The lawyer said the fact that her client has lived in the Washington area for years and re­turned shows that he “wants to be here and that he has no in­tent or in­cen­tive to flee.”

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.