WICHITA, Kan. (AP) - A federal appeals court has ruled judges cannot deny bail to immigrants in criminal cases solely because they are living in the country unlawfully and could be deported before trial.
The little-noticed ruling by a three-judge appellate panel last week noted it's the first decision of its kind in the 10th Circuit Court of Appeals, setting the legal standard for pretrial release of immigrants in criminal cases across a territory that includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah.
The 10th Circuit noted the Bail Reform Act requires judges to decide the pretrial detention of deportable immigrants "on a case-by-case basis," considering various factors to determine the risk a defendant might flee. While doing so, judges cannot consider the possibility of involuntary deportation, the panel said.
At issue in this case was whether a defendant can be considered a flight risk solely because the Bureau of Immigration and Customs Enforcement has lodged a "detainer," which is essentially a formal notice requesting the U.S. Marshals Service to contact ICE before a person is released.
"We don't do blanket analysis of people and that is where we have gotten. The ICE detainer became the scarlet letter of defendants, and it shouldn't have been," said Michael Sharma-Crawford, an immigration lawyer in Kansas City, who is not involved in the case. "The defendant's own character is what everybody should be examining."
He called the ruling "profound," since courts can no longer consider immigrants an automatic flight risk just because a detainer is filed.
The appeal court's decision comes in the case of Mario Ailon, Guatemalan citizen who lived without legal permission in Dodge City, Kansas, for at least seven years before his arrest in July. ICE referred the matter to the Justice Department for criminal prosecution after determining he had re-entered the U.S. illegally after his 2001 removal. He is charged with re-entry after deportation, misuse of a Social Security number, making a false written statement to the U.S. government, and aggravated identity theft.