National News

Judge Faults U.S. for Holding Immigrant Defendants Freed on Bail

Posted January 7, 2018 4:31 p.m. EST

NEW YORK — In mid-October, Keston Lett arrived at Kennedy Airport on a JetBlue flight from his home in Trinidad and Tobago. As Lett was passing through customs, a border agent caught a strong odor coming from his bag and noticed that its bottom “was unusually thick and heavy,” court papers say.

The agent tested the bag for cocaine and when the test proved positive, he opened it and found more than 2 kilos of the drug inside. Lett was arrested on the spot. The next day, he appeared in U.S. District Court in Brooklyn where he was charged with importing drugs into the country.

While it is hardly unusual for customs officials to nab drug suspects at New York’s airports, what happened next not only broke the law, his lawyer says, but also seemed in keeping with a recent shift in immigration policy that a federal judge in Brooklyn has complained of twice in separate cases in the past three months.

A few weeks ago, Lett was freed from the custody of the Brooklyn court and was supposed to be released on a $30,000 bond to his aunt’s house in New Jersey. He never made it. Instead, court papers say, he was rearrested on an immigration detainer and sent to an immigration detention center at the Hudson County Correctional Facility in Kearny, New Jersey.

According to both Lett’s lawyer and the judge, Dora L. Irizarry, the government cannot decide to criminally prosecute immigrants and then keep them locked up on immigration detainers, if, as their cases proceed, they are granted bail. To do so, they said, was to take what amounted to a second bite of the apple, one that skirted the constitutional protections of the criminal-justice system by using the separate immigration process to obtain a result they failed to get the first time.

“The executive branch has a choice to make,” the lawyer, Michelle Gelernt, wrote last week in a motion to dismiss Lett’s charges. “Whether to proceed with the criminal case against Mr. Lett or whether to proceed instead with his removal.”

“What the executive branch cannot do,” Gelernt said, “is to use its immigration authority to detain Mr. Lett while pursuing its criminal case against him.”

In making her argument, Gelernt, of the Federal Defenders of New York, relied on two recent orders by Irizarry that came in similar cases of immigrants who were arrested on detainers after being freed on bail. In her orders, Irizarry wrote that by holding immigrants released on bail with immigration detainers, the government was essentially making “an end run” around the country’s bail laws.

At play in all three cases is a tension between the Bail Reform Act, which protects defendants’ rights to be released before their trials, and the Immigration and Nationality Act, which gives the government the power to detain and deport people who are in the country illegally. Though appeals courts have not yet addressed the conflict, Irizarry wrote in one of her orders that criminal cases legally take precedence over deportation efforts, adding in the other that the government cannot “proceed on a dual criminal prosecution and deportation track.”

But by using its immigration powers to hold immigrant suspects freed on bail by legal means, the government, Irizarry wrote, had placed in jeopardy “the constitutional rights of the accused.”

In both of the cases she considered, Irizarry gave the government two options: It could either deport the defendants through the immigration system or dismiss the charges against them. But it could not detain them for immigration violations while continuing to pursue their criminal prosecutions, she said.

The first case, decided in November, concerned a Dominican man, Saba Rosario Ventura, who arrived in New York from Santo Domingo on April 7 with a green card that had expired the previous day. When border agents at Kennedy Airport determined that Ventura had been deported once before for an immigration violation, they took him into custody.

In August, he was indicted in Brooklyn on immigration charges and released on bail within two weeks with his case still pending. But instead of going free as the court had ordered, Ventura was arrested by the Bureau of Immigration and Customs Enforcement, or ICE, and is now in the Hudson County jail as the government decides if it will appeal.

The defendant in the second case, decided Dec. 20, is Salomon Benzadon-Boutin, a dual citizen of Panama and Spain. In July 2015, Benzadon-Boutin arrived in New York on a Panamanian visa that expired six months later.

In October — while in the country illegally — Benzadon-Boutin was charged with money laundering after an investigation by the Drug Enforcement Administration. Although he was granted bail in November and was supposed to be released, he was arrested on an immigration detainer and also taken to the Hudson County jail.

In court papers, Lett’s lawyer, Gelernt, said she spoke in December with the Customs and Border Protection agent who arrested her client and claims the agent told her that detaining immigrants who had been freed on bail marked a change in policy.

“The agent verified that, under previous policy, arriving aliens who were charged with federal crimes and released on bail pursuant to the Bail Reform Act, were routinely released after a brief detention at JFK,” Gelernt wrote. “The CBP agent further informed defense counsel that, as a result of a recent executive order, CBP was now instructed to request ‘bed space’ in an immigration detention facility for arriving aliens charged with federal crimes, but released on bond.”

Teddy Camlen, a spokesman for Customs and Border Protection in New York, said the authority to use detainers in bail situations was not new, but was being newly enforced.

“These are charges that could possibly get people deported and we don’t want them out walking on the street,” Camlen said. “That’s the whole point of the detainer.”