Thursday, December 26, 2019

Mississippi judge: ICE cannot detain immigrant during criminal prosecution

In August 2019, ICE raided six chicken-processing plants in Mississippi and detained hundreds of people, including Ms. Baltazar-Sebastian. Two weeks later, she was indicted for misuse of a Social Security number. A federal magistrate judge found that she was not a danger or a flight risk, and released her on bond. But Ms. Baltazar-Sebastian was not released. ICE immediately took her into custody and transferred her to a detention facility in Louisiana for removal proceedings. Motions were filed. The United States asked for reconsideration. ICE got involved. Main Justice got involved.

Judge Carlton Reeves, a judge in the Southern District of Mississippi, held that ICE's detention of Ms. Baltazar-Sebastian violates the release order and has no legal basis. He rejected any argument that the Bail Reform Act and immigration laws were in conflict: the Bail Reform Act requires release if a person is not a danger or a flight risk, and the immigration statute doesn't require otherwise. Judge Reeves rejected the United States' argument that an ICE detainer is an "exception" that creates different rules. In Ms. Baltazar-Sebastian's circumstances (no aggravated felony, no prior removal), immigration detention is permissive (ICE detainer or no), and allows for detention only for removal purposes. But the detention can't be for removal purposes because immigration regulations don't allow for removal during a criminal prosecution. (Border defense lawyers will already know that ICE has a different interpretation of these regulations). Judge Reeves also distinguishes or rejects decisions from circuit courts that have allowed alien-defendants to be detained by ICE, despite a release order in a parallel criminal prosecution.

There is a lot in this opinion. It is worth a read if you come across this situation, as many of us will. Ramped-up immigration enforcement leads not just to more criminal cases, but to increasingly complex difficulties stemming from parallel criminal prosecutions and removal proceedings.

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