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In ‘sanctuary’ fight, a new question of justice emerges


When feds take charge of inmates, they might not return for trial.

ICE says it determines custody ‘considering all the merits and factors of each case.’

When Travis County District Attorney Margaret Moore was alerted to the case against Hugo Gallardo-Gonzalez, accused of repeatedly sexually assaulting a young girl and targeted by federal immigration agents, she had a clear vision for his future.

She wanted to take him to trial on the most serious felony charge possible.

Then see him do time.

And then — and only then — possibly see him expelled from the country.

As the battle over so-called sanctuary cities continues, Moore’s pursuit exposes what has been a largely unexamined dimension of whether Texas sheriffs should be bound to hold inmates for U.S. Immigration and Customs Enforcement for possible deportation: What happens to the original cases that landed those suspects in jail?

Moore took action last week after learning that, because Gallardo-Gonzalez had posted a bond on a continuous sexual assault charge, he was eligible for release to federal immigration officials. To keep him here, she and other prosecutors hastily arranged a hearing in which she successfully asked a judge to revoke the bond and dramatically increase his bail so he would remain at the Travis County Jail. (His attorney says Gallardo-Gonzalez is a “resident alien,” in the country legally.)

“What is important to me is not whether (Sheriff Sally Hernandez) honors a detainer request from ICE,” Moore told the American-Statesman. “That is her business. What matters to me is a problem that existed before her policy and exists now, which is the removal of felony defendants from our jurisdiction by ICE before we’ve had a chance to resolve their cases.”

According to Moore and other law enforcement officials involved in the process, immigration agents often transport local inmates with ICE detainers to a federal holding facility after they post bail at the county jail. They contend that at times, they can’t proceed with a case because a defendant is in a federal lockup and they have difficulty retrieving the inmate, or the suspect is deported with charges unresolved.

Although some immigrant advocates say deportation is a severe penalty, critics of the arrangement say it can set dangerous offenders free outside the United States without ever paying for their crimes.

Officials said they do not have a list of such examples. Yet in one instance, Moore said, prosecutors are working with ICE to get a man charged with a felony drunken driving case returned to Austin from federal detention.

“We aren’t having much success in getting him back,” she said. “And we have lost defendants in the past, I’m told.”

Travis County has become the center of the national debate over how local jails should handle ICE detainers since Hernandez announced last month that she will limit her cooperation with ICE to cases in which inmates are accused of one of four crimes or if ICE obtained a warrant. Last week, she said the jail staff will more tightly review other cases to evaluate whether to hold an inmate for the federal government.

Hernandez cited the issue of unresolved cases in announcing her new policy on YouTube, saying that previously, “the victim and their family never had their day in court. … Public safety is fostered whenever there is accountability and closure.”

Lawmakers have since proposed a law requiring Texas sheriffs to hold a defendant for ICE, but the law doesn’t create a framework for how county prosecutors work with immigration officials to ensure resolution of a criminal case.

Last week, Moore and Hernandez arranged a system in which the jail staff will provide prosecutors a daily list of inmates with newly placed ICE detainers and their bail amount. Moore said she will consider asking judges to raise the bail for defendants in an effort to keep them in Travis County for prosecution.

When the Statesman asked regional ICE officials about the handling of pending local criminal charges, the agency said in a statement, “ICE custody determinations are on a case-by-case basis considering all the merits and factors of each case while adhering to agency guidelines and legal mandates.”

Different routes to deportation

What happens when an inmate reaches a federal detention facility for possible deportation varies from case to case, those familiar with the process say. They added that many of the possible outcomes offer no guarantee of ensuring justice to crime victims or penalties for offenders.

Bob Libal, executive director of the criminal justice reform group Grassroots Leadership, said, “The immigration system actually can interfere with the criminal justice system. Not having immigration involved helps the criminal justice system carry out its duties, whereas when you mix immigration and criminal justice, you end up not doing justice by anybody.”

After collecting inmates from local jails across the state, federal authorities often offer suspects a chance to leave the country voluntarily, and many immigrants, especially those without adequate legal representation, do so, said Jose “Chito” Vela III, an immigration and criminal defense attorney in Austin.

Sometimes, the inmates will decline to leave voluntarily and attempt to fight their case in immigration court. Others will not be offered the voluntary removal because ICE wants to pursue having a judge give them a formal order of removal, or deportation, said Vela, a Democrat who is planning a run for state representative.

In rare cases, immigrants can petition to have a judge let them out on a federal immigration bond, which must be paid in full and not guaranteed through a bondsman like in county jail.

Many of the inmates, however, remain in federal custody and often miss the trial dates for their original criminal cases, which further complicates their immigration status because the state judges will issue arrest warrants for failing to appear in court.

An option for prosecutors

Moore said that while federal officials are handing the matter of immigration, prosecutors might be simultaneously losing ground on the pending criminal case.

“That’s not a satisfactory situation,” she said. “That means these felony cases get cold and are harder to make. We want to ensure that the felony charges are prosecuted before this person is deported.”

Lawyers say there are times when ICE does not attempt to apprehend the suspects until after they are sentenced for their original criminal offense. In those cases, the inmates serve out their time in state prison before being handed over to federal authorities for immigration proceedings.

A.J. Louderback, the Jackson County sheriff who works with the Legislature on behalf of the Sheriffs’ Association of Texas, said many local law enforcement officials work well with ICE, ensuring that once the federal government has resolved a defendant’s immigration matter — but before deportation — they will transfer custody to a local sheriff to handle local cases.

“Prosecutors have that option, to do that before the final order for removal is acted upon,” he said. “Obviously, there could be mistakes and things that go on, but the cooperation between the two is what is crucial. The cooperation and working together. That is the real answer for public safety.”

Moore said she has reached out to the regional ICE director to schedule a meeting later this month to possibly develop a plan about how her office and the federal government can ensure that local cases reach a resolution.

Senate Bill 4 does not seek to alter the process in which ICE detainers are handled, said Matthew Dowling, chief of staff for the bill’s sponsor, state Sen. Charles Perry, R-Lubbock. The purpose of the bill, he said, is to make sure that ICE detainers are honored in all Texas counties.

Throwing a wrench in the system

Immigration lawyer Cynthia De Los Santos said she commonly sees cases in which defendants are deported before they can go through the courts. Such instances are a lose-lose situation for the defendant and the justice system, De Los Santos said.

“The humanitarian side of (going to court) is that someone has the right to clear their name,” De Los Santos said. “The other side is that if they are guilty, why wouldn’t you want them to pay their fines or pay their debt to society?”

When a person doesn’t show up in court because he or she is in detention or has already been ejected from the country, a judge can issue a bench warrant authorizing an arrest to bring the person back to court, said immigration attorney Stephanie Taylor.

Most of the time, the person is already out of the country, but in some circumstances, he or she has not yet left and can be summoned back from federal custody, Taylor said.

“It just throws a wrench into the whole system when someone is not able to continue with the criminal justice process,” Taylor said. “It’s bad any way you look at it.”

De Los Santos said she knows of a lot of people who will do whatever they can to stay, even if it means sitting in jail or not posting bail, in order to have their time in court.

As many of them know, those deported with pending criminal charges will have an even more difficult time trying to come back legally, she said. It’s a “vicious catch-22,” she said.

Accountability and closure

The deportation of a defendant before prosecution can also have a negative effect on victims as they are trying to heal, advocates say.

“For some, it might be a really good thing just to get that person out of their lives altogether,” said Ted Rutherford, communications program director for the Texas Association Against Sexual Assault. “For some, it could feel like robbing them of their chance for justice in court.”

Going through the criminal justice system is important for many victims so they can see a judge or jury acknowledge that what happened to them is wrong and see the perpetrator be held accountable, said Jeff Dion, deputy executive director of the National Center for Victims of Crime.

“Some victims might see that deportation as punishment, and others are sort of wondering, ‘Well, what does that mean?’ ” Dion said. “That means people back in the perpetrator’s own country are at risk because this person wasn’t held accountable.”

Victims are also denied restitution when their cases don’t go to trial, Dion added.

“There’s not going to be any assistance to try and help them get their life back together,” he said.

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