Getting tough

A judge ordered him released. He’s still in jail.

Perhaps the biggest question about Marco Nicolas-Sanchez is why he stayed.

Maybe he was naïve. He got busted for driving under the influence in Rantoul last year, and it’s well-known that illegal immigrants arrested for such offenses end up on Immigration and Customs Enforcement radar. Maybe he was greedy. His job at an Indiana company that builds grain bins enabled him to send money home to support his wife and three sons and pay the mortgage on the family’s home in Mexico City.

But Nicolas-Sanchez didn’t return to Mexico, and so the feds arrested him nearly five months ago, a year after his DUI arrest, and charged him with illegal reentry for returning to the U.S. after being deported in 2014. He’s still in jail, even though a judge has ordered him released on bond. Prosecutors say that ICE also has a detainer order, a predicate to deportation. Given the detainer, bond order and lack of serious criminal history, why is he still locked up, or even in the United States?

It appears to be a matter of getting tough. Nicolas-Sanchez will, almost certainly, be returned to Mexico. The question is, how long should he be jailed before he goes back.

Immediately after U.S. District Court Judge Sue Myerscough ordered Nicolas-Sanchez released on bond in March, he was arrested in the Springfield courthouse and charged with presenting false paperwork to obtain employment in Indiana – he had the misfortune of living in Illinois, where Myerscough presides, and working in another state, where a different federal court decides cases. Federal prosecutors in Indianapolis filed charges the same day that Nicolas-Sanchez appeared in Springfield. His lawyer says that court rules called for Nicolas-Sanchez to make his first appearance on the Indiana charges in Springfield, where he’d just been ordered free on bond. But that didn’t happen. For the past three months, he’s been traveling between jails in Illinois, Kentucky, Oklahoma and Indiana.

The first stop after Myerscough ordered him released was a Pulaski County jail. After a magistrate in East St. Louis ordered him sent to Indianapolis to face the false paperwork charges, he went to Indiana, then to a lockup in Oklahoma. In April, he asked to plead guilty to the illegal reentry charges filed in Illinois. The day before he was scheduled to plead guilty, prosecutors asked for a postponement: The defendant, they wrote in a motion, was in transit and couldn’t make it to court.

“Since this court ordered him released on March 7, he has been to county jails in three states, traveling south, then west, then east, then south again, crisscrossing judicial districts,” Johanes Maliza, Nicolas-Sanchez’ lawyer, wrote in a motion opposing the requested delay. “From his perspective, a continuance would only give the government time to find new ways to keep him from a courthouse, then argue that things should be delayed because he is unavailable.”

At that point, the defendant was being held in Kentucky, according to the court docket. Two weeks later, he returned to Illinois and pleaded guilty to the illegal reentry charge, with sentencing scheduled for July 3. Prosecutors say sentencing guidelines specify 14 months in jail, partly because of his criminal record: Because Nicolas-Sanchez had no driver’s license when he was busted for drunken driving, his DUI conviction counts as a felony, even though no one was injured, no kids were involved, there was no accident and it was his first offense. “Pretty standard DUI,” recalls Walter Ding, the lawyer who defended him. “Nothing crazy. He was cooperative.” False paperwork charges remain pending in Indiana, and so the end of his legal saga in Illinois still might not end of his legal woes.

In March, prosecutors told Myerscough that freeing Nicolas-Sanchez on bond might ruin their case, thanks to an ICE detainer and order that he be sent back to Mexico.

“If released to ICE custody, immigration authorities would do their job – they would implement the removal order, and the defendant would be deported to Mexico on the first available plane,” prosecutors wrote in a March motion. “Meanwhile, the defendant would not be present for this case.” Not so, Maliza countered, citing a 2012 case in which an Oregon judge ruled that ICE shouldn’t arrest or deport a defendant released on bail after being charged with illegal reentry, the same charge Nicolas-Sanchez faces in Illinois. More recently, a federal appellate court last year overruled a judge in Ohio who had granted bond to a construction worker who’d pleaded guilty to illegal reentry and was awaiting sentencing. The Ohio judge had ordered ICE not to arrest or deport the man until the criminal case was concluded. The appellate court, however, ruled that ICE not only could arrest and deport the defendant, the law required it.

In Illinois, Nicolas-Sanchez’ case comes two years after then Attorney General Jeff Sessions announced that U.S. attorneys would prosecute immigration offenses once seen as minor.

“This is the Trump era,” Sessions said. “The lawlessness, the abdication of the duty to enforce our immigration laws and the catch-and-release practices of old are over.”

That comports with Ding’s anecdotal experience. He says he’s handled seven or eight DUI cases involving illegal immigrants, with varying results. “Some get deported, but I’ve seen a couple guys out in the community, still,” he says. “Back in the Obama administration, I don’t think they were as heavy handed.”
The number of illegal immigrants has skyrocketed at the nation’s southwest border, with more than 144,000 people apprehended in May. Nearly 600,000 people have been detained at the border since October, when the government’s fiscal year began. That is, already, more apprehensions than in any fiscal year going back to 2014.  

Contact Bruce Rushton at

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