In an interesting twist to the old story of civil and criminal immigration law enforcement overlap, the U.S. Court of Appeals for the Seventh Circuit recently concluded that time spent in civil immigration detention can be considered when determining a sentence for a federal immigration crime. United States v. Estrada-Mederos, No. 14-2417, slip op. (7th Cir. April 29, 2015). The Seventh Circuit held that a sentencing judge could view the time spent under ICE’s custody as the basis for granting a convicted migrant a downward departure from the sentencing range for illegal reentry.
This case reads like a case study of what, in a forthcoming article, I call “immigration imprisonment”—confinement for migration-related activity regardless whether it happens under civil or criminal authority. Here, Marcos Estrada-Mederos, seemingly an unauthorized migrant, was arrested by local police officers on suspicion of a state crime. While criminal proceedings were pending, he was told that ICE had issued an immigration “hold” (often described as an “immigration detainer”) against him, so he couldn’t be freed even if he paid his bail amount. After roughly 11 months of pretrial detention, he was convicted of obstruction of justice. Id. at 3. He then served 7 months imprisonment as punishment for that offense. Id.
At that point, state officials paroled into the custody of ICE officers who then kept him in civil immigration detention for over six months. Id. at 4. An immigration judge eventually concluded that Estrada-Mederos was removable and denied relief. Id. One month later, federal criminal prosecutors charged him with illegal reentry, a federal felony under INA § 276. Id. By that time, Estrada-Mederos had been held in immigration imprisonment for about 24 months. He later pleaded guilty to illegal reentry. Id.
Despite admitting his unlawful presence in the United States, Estrada-Mederos sought a more lenient sentence than recommended by the U.S. Sentencing Guidelines. He wanted the time he spent in ICE custody to count in his favor in reducing the prison sentence issued for the illegal reentry conviction. Normally, convicted offenders are credited with time served prior to conviction. That’s not the case when the custody is civil immigration detention. As the Seventh Circuit explained, “The Bureau of Prisons instructs its officers: ‘Official detention does not include time spent in the custody of [ICE]…pending a final determination of deportability.’” Id. at 10.
The Seventh Circuit seems to imply that this is a problematic position because civil and criminal confinement on immigration charges often looks very similar. Indeed, the court cites Anil Kalhan’s excellent Rethinking Immigration Detention and my own Immigration Detention as Punishment to support its conclusion that, “Though the immigration custody is civil detention and the state custody is criminal incarceration, the similarities are too strong to ignore.” Id. at 9. On the page of my article that the court cites, I explain that “the most invasive features of penal imprisonment resonate through the immigration detention estate”: strip searches, controlled movements, limited recreation, sparse opportunities to visit with family or friends. César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA Law Review 1346, 1384 (2014).
Unable to ignore this reality, the Seventh Circuit concluded that “a district court could reasonably find that such uncredited confinement warrants a reduced federal criminal sentence.” Id. at 10-11. A sentencing judge isn’t required to downwardly depart, but can if she decides, in her discretion, that it is appropriate to do so. Regardless, the judge must consider such a request and explain her conclusion. According to the Seventh Circuit, the judge who sentenced Estrada-Mederos failed to do that. The sentencing judge denied Estrada-Mederos’ request, explaining in only the most cursory fashion that he “did take into account” that Estrada-Mederos had “been in[to] custody on other charges.” Id. at 6-7. This explanation, the Seventh Circuit concluded, was insufficient “to show that he considered [Estrada-Mederos’] argument and had a reasoned basis for rejecting it.” Id. at 11. As a result, the Seventh Circuit vacated and remanded for reconsideration.
It’s refreshing to see a federal court weigh the reality of confinement as a means of enforcing immigration law. Whether through civil or criminal statutes, the fact of the matter is the United States routinely uses the same enforcement mechanism (incarceration) to sanction the same activity (migration). If we’re going to keep doing this, we should at least be honest about it. Call it civil immigration detention or criminal confinement, at the end of the day it’s immigration imprisonment.
Find this information useful? Then let others know about crImmigration.com, as well as César’s Twitter, Facebook, and LinkedIn pages. And to make sure you don’t miss an update, subscribe to the blog by entering your email address in the subscription box that appears on every page.