Criminal Defense of Immigrants

(B)  Immigration Status is Not Conclusive.  In considering citizenship or immigration status in release decisions, the court balances them against the quality and strength of traditional factors such as family ties and ties to the community. In one case, Justice Brennan reversed the revocation of defendant’s bail pending appeal, where the government pointed to his lack of United States citizenship and his contact with the Vietnamese consulate as a basis for holding him in detention:

the reasons relied upon by the courts below do not constitute sufficient “reason to believe that no one or more conditions of release will reasonably assure” that appli­cant will not flee. The evidence referred to by the Court of Appeals is that applicant maintained contact with the Vietnamese Ambassador in Paris; that he has not established a permanent residence in this country; and that, should applicant flee to Vietnam, the United States would have no means to procure his return.[17]

These findings and conclusions are equally relevant to pretrial release considerations.

                While federal courts may consider noncitizen status as one factor among others, lack of U.S. citizenship in and of itself does not require a conclusion that a defendant ought not be released from custody: “the factor of alienage . . . may be taken into account, but it does not point con­clusively to a determination” that the defendant poses a serious risk of flight.”[18]  “[A]lienage does not by itself ‘tip the balance either for or against detention . . . .  When assessing an alien defendant’s ties to the United States, factors to be considered include how long the defendant has resided in this country, whether defendant has been employed in the United States, whether defendant owns any property in this country, and whether defendant has any relatives who are United States residents or citizens.”[19]

[17] Truong Dihn Hung v. United States, 439 U.S. 1326, 1329 (1978) (Brennan, J. in chambers) (footnote omitted) (“there was insufficient basis for revocation of applicant’s bail following his conviction, and that his bail should be continued at $250,000 pending decision of his appeal”).  See 18 U.S.C. § 3146 (Bail Reform Act provides that release of an individual during trial be continued pending appeal absent a finding that no conditions of release would reasonably assure that the person will not flee).

[18] United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985) (ordering defendant released from pretrial custody conditioned on posting bond, travel restrictions, and surrender of both his passport and green card) (citing Truong Dinh Hung v. United States, 439 U.S. 1326, 1329 (1978); United States v. Honeyman, 470 F.2d 473, 474-475 (9th Cir. 1972)).

[19] United States v. Townsend, 897 F2d 989, 995-996 (9th Cir. 1990), citing United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985). See also United States v. Honeyman, 470 F.2d 473 (9th Cir. 1972) (court of appeal reversed trial court detention order based on noncitizen non-Lawful Permanent Resident status of a person who had travel documents with which he could easily flee, and granted bail under the condition, among others, that the defendant’s passport be seized); United States v. Dominguez, 783 F.2d 702 (7th Cir. 1986) (reversing pretri­al detention order for Cuban immigrants who had resided in the United States for five years and showed economic and social stability); United States v. Khashoggi, 717 F. Supp. 1048 (S.D.N.Y. 1989) (releasing a well-known Saudi Arabian businessman on bail who owned property and possessed financial ties to the United States). But see United States v. Delgado-­Rodriguez, 840 F. Supp. 191 (N.D.N.Y. 1993) (stating in dictum that an undocumented noncitizen who failed to rebut the presumption of risk of flight set forth in 18 U.S.C. § 3142 (e) based on the maximum possible sentence of the offense charged, should be detained because even though he has family in the U.S., he “will be facing deportation charges irrespective of the outcome of the instant proceedings”).