Current chaotic practices in the U.S. for addressing unlawful immigration such as family separations and varying municipal approaches to cooperating with Immigration and Customs Enforcement might make it seem that there’s little established law for the legal processes undocumented immigrants are entitled to. But attorneys who do immigration and criminal defense work say biases in the court system toward immigrants long predate the current administration. And the biases can show up at every phase of the criminal process, from pretrial release to penalty determination.
“The Constitution does not single out citizens when it comes to the due process clause,” said Arnulfo Hernández, managing partner of Hernández & Associates, adding both documented and undocumented immigrants are entitled to due process protections. “Those are fundamental rights.”
Firm shareholder Christine Hernández said criminal defense attorneys face a delicate balance when representing immigrants because biases toward their clients can derail negotiations with prosecutors. But attorneys do have a duty of candor to the court that requires them to be honest about their clients’ citizenship status if asked.
“You don’t want to come out and say, ‘My client’s an immigrant,’ because some prosecutors don’t want to give an immigration-friendly plea,” she said. “So it’s a very fine line for criminal defense attorneys when they’re representing their clients because mentioning immigration might get you a bad deal or no deal.”
Prosecutors who appear immigration-friendly can face judgment in the court of public opinion. In 2006, then-Denver district attorney and gubernatorial candidate Bill Ritter’s office saw criticism when it came to light that his office had allowed dozens of defendants to plead guilty to agricultural trespass charges in lieu of more serious crimes they were accused of committing in order to avoid deportation.
A similar dilemma can come up in sentencing, Christine said, because judges may base their decisions on defendants’ immigration status, such as whether to grant probation. “Knowing that really determines how you’re going to argue or what cards you’re going to put on the table. It’s about knowing your judges, I think.”
Violeta Chapin, an associate clinical law professor at the University of Colorado Law School, said a defendant’s noncitizen status can influence whether a judge grants them pretrial release on bond. Judges may assume that a defendant will enter the immigration system after release, either for deportation proceedings or voluntary departure, before their criminal case resolves. Chapin said she believes that’s an inappropriate factor to base bond decisions on, pointing out that whether someone committed a crime is an issue separate from their immigration status.
“The immigration status of a person who’s appearing in a criminal case should not come into play unless for whatever reason the criminal judge thinks there’s a possibility that they’re going to flee and use their passport,” she said, in which case a judge can take the defendant’s passport or advise ICE not to deport the person while their criminal case is pending. “But it shouldn’t fall on the noncitizen to be treated differently just because he may or may not have immigration status in the U.S.”
Hans Meyer, lead attorney at the Meyer Law Office, said a person’s immigration status shouldn’t matter in a criminal case just as other characteristics such as race or gender should not.
“Our courts are as fallible as the people who work in them,” he said.
Assumptions about a defendant’s immigration status that lead to implicit bias can come into play between the pretrial and penalty phases even if the defendant’s status isn’t explicitly brought up. Arnulfo said certain clues, such as if a defendant is using an interpreter, can lead to assumptions by those in the court about the person’s status.
“It’s almost like you’re going up to the batter’s box with two strikes,” he said. “You look different than the juror, possibly, you speak a different language than the juror, possibly, and now you’re being accused of a pretty bad criminal offense.”
Probation in particular can present a two-pronged obstacle for immigrant defendants. Christine said the most overt bias she runs into tends to be judges assuming immigrants aren’t eligible for probation because they don’t have work authorization and won’t be able to comply with probation terms.
And under the Trump administration, probation offices have increasingly reported probationers to Immigration and Customs Enforcement, leading to detainments. According to a July report in Westword, ICE officers had arrested eight clients of the Office of Denver Adult Probation by that point in 2018.
In January 2017, the Department of Homeland Security issued a memo containing enforcement guidance for ICE. Under the Trump administration’s stance, just being in the U.S. illegally can trigger the deportation process. Detainments make it more difficult for probationers to then comply with their probation terms, leading to revocation and a self-fueling cycle in the criminal system.
Also receiving attention has been some local municipalities’ practice of detaining people who are suspected noncitizens longer than normal protocol for crimes they are arrested for at the request of federal authorities so ICE can contact them. A lawsuit by the American Civil Liberties Union has accused Teller County Sheriff Jason Mikesell of breaking the law by by holding Canseco Salinas, who was arrested for misdemeanors, past his release date without a warrant or sentencing order signed by a judge because ICE had asked Mikesell’s office to detain Canseco Salinas.
Meyer said ICE turning courthouses and probation programs into “arrest zones” for immigrants creates a culture of fear that undermines their trust in judicial systems and makes them less willing to participate either by coming forward as victims or taking responsibility as accused defendants.
Arnulfo said attorneys have to understand that, ultimately, each immigrant’s circumstances differ from the next, and stereotypes and generalized approaches to their cases do them a disservice. The onus is on the attorney, he said, to educate the court about the options available to approach immigrants’ cases.
“I have never run into a situation that has been like or identical to another,” he said, because of how differently each immigrant can be treated by ICE and based on the jurisdiction and court they’re in. “It is about knowing these nuances and understanding the differences so that you’re able to effectively represent your client.”
— Julia Cardi