§ 6.19 C. Criminal Custody Conditions
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DETENTION " CRIMINAL DETENTION " FEDERAL COURT " PRACTICE ADVISORY
A new practice advisory has been issued on the Bail Reform Act's provisions for non-citizen federal defendants, including an overview and explanation of 8 U.S.C. 3142, part of the Bail Reform Act of 1984, analysis on how noncitizen federal defendants can win bail in spite of their immigration status or immigration detainers, and presents arguments for release if ICE takes custody after a defendant pays criminal bail. http://www.nationalimmigrationproject.org/legalresources/practice_advisories/pa_Federal_Bail_Advisory.pdf
DETENTION " CRIMINAL DETENTION " ICE DETAINER NOT SUFFICIENT ALONE TO JUSTIFY CRIMINAL COURT DENIAL OF PRETRIAL RELEASE
United States v. Ailon-Ailon, 875 F.3d 1334 (10th Cir. Nov. 22, 2017) (defendant facing federal prosecution for illegal reentry, and also subject to an ICE detainer, could not be denied pretrial release solely due to the risk that ICE would remove him before his criminal trial).
Lower Courts of Third Circuit
DETENTION - CRIMINAL BAIL CAN BE SET HIGHER FOR UNDOCUMENTED IMMIGRANT
State v. Fajardo-Santos, 199 N.J. 520, 973 A.2d 933 (N.J. Jul. 8, 2009) (lodging of an immigration detainer against defendant marked a change in circumstances, warranting an increase in bail pending trial; the existence of the immigration detainer increased the likelihood that the defendant would not appear in criminal court for trial because he would be deported).
NOTE: The court finds that 8 C.F.R. 215.3(g) (allowing a prosecutor to prevent the departure of "[a]ny alien who is needed in the United States as a witness in, or as a party to, any criminal case under investigation or pending in a court in the United States: Provided, That any [such] alien ... may be permitted to depart from the United States with the consent of the appropriate prosecuting authority...."), does not apply to noncitizens in removal proceedings. Therefore, the court determined that the State had no authority to prevent the removal of the noncitizen prior to the criminal trial.
DETENTION " IMMIGRATION DETENTION " IMMIGRATION HOLD DISQUALIFIED DEFENDANT FROM ELIGIBILITY FOR MANDATORY SUPERVISION PORTION OF SENTENCE
People v. Camp, ___ Cal.App.4th ___, ___ Cal.Rptr.3d ___, 2015 WL 273088 (4th Dist. Jan. 21, 2015) (immigration hold disqualified defendant from eligibility for mandatory supervision portion of realignment , so criminal court modified sentence, terminated mandatory supervision, and ordered defendant released to ICE custody).
DETENTION " CHALLENGE TO DENIAL OF DRUG PROGRAM TO PRISONERS WITH ICE DETAINERS
Gallegos-Hernandez v. United States, 688 F.3d 190 (5th Cir. Jul. 18, 2012) (denial of drug rehabilitative treatment to prisoners with ICE detainers did not violate prisoner's due process rights or the equal protection clause; BOP policy was rationally related to BOP's legitimate interest in preventing prisoners from fleeing).
SENTENCE " IMMIGRATION-RELATED CONDITIONS
United States v. Zamudio, 718 F.3d 989 (7th Cir. Jun. 4, 2013) (without imposing supervised release, criminal judge may not impose immigration-related conditions such as requiring defendant to report to ICE or to remain outside the United States if removed).
DETENTION " IMMIGRATION DETENTION " ICE DETAINER CAN PREVENT TRANSFER FROM CUSTODY TO HALFWAY HOUSE
An ICE detainer can prevent a defendants placement in a halfway house. http://famm.org/wp-content/uploads/2013/08/FAQ-Halfway-House-4.24.pdf; http://www.fd.org/docs/training-materials/2010/MT2010/MT10_Practical_Tips_BOP.pdf