United States v. Santos-Flores, No. 15-10289 (July 2015 motions panel) --- In a published order, the Ninth Circuit held that a criminal defendant may not be denied bail simply because he is likely to be placed in immigration custody and thereby not be made available for trial.  The court affirmed the denial of bail in this case, however, on the alternative ground that the district court made individualized findings about the likelihood that this defendant would not voluntarily appear for trial in light of his history of immigration violations and the circumstances under which he was caught in this case, which included the fraudulent use of identity documents.

The defendant here is charged with illegal reentry.  He was on supervised release for a prior illegal re entry, and was caught coming back with false documents. The government indicted him, and he sought release.  The district court said "no" because he would be turned over to ICE and deported, and alternately examined individualized factors. On appeal, the Ninth Circuit parsed the Bail Reform Act, and concluded that Congress did not bar consideration for release.  Congress had stated that immigration had to be informed, and that if they did nothing, the defendant could be considered.  The 9th concludes that there may be various reasons why ICE would not deport or remove someone, or would want them prosecuted.  This factor cannot bar release considerations.  Endorsing a conclusion by Judge Simon of the District of Oregon, the court said, "If the government, by placing Santos-Flores in immigration detention or removing him, jeopardizes the district court’s ability to try him, then the district court may craft an appropriate remedy."  Alas, for the defendant here, the Ninth Circuit concluded that individual factors supported the detention decision.  These include a record, prior immigration matters, and the use and possession of fraudulent identity documents.

Kudos to CJA panelist and former Assistant Federal Public Defender Bob McWhirter of Tempe, Arizona.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/23/15-10289o.pdf