Can ICE Deport Someone a Federal Judge Released on Bail?

Yes. A non-citizen released on bail in a federal criminal case can still be detained by Immigration and Customs Enforcement (ICE) and possibly deported, even before sentencing. In United States v. Veloz-Alonso, 910 F.3d 266 (6th Cir. 2018), the Sixth Circuit held that a district judge could not order ICE to stop detaining or deporting a defendant released on bail before sentencing.

Many people in federal criminal cases also face deportation, so this conflict comes up more often than families might expect.

How Criminal Cases and Deportation Overlap

Deportation Proceedings

Section 237 of the Immigration and Nationality Act lists the reasons a non-citizen can be deported, such as certain felonies, fraud, or helping others enter the country illegally. Deportation is a separate civil process from a criminal case.

In most cases, an immigration judge must issue a removal order before ICE can deport someone. The person gets a chance to be heard at an immigration hearing and may have a lawyer, though the government does not have to pay for one. There are exceptions. For example, a prior removal order can sometimes be reinstated without a new hearing, and someone stopped at the border may not get a hearing at all, because they have not officially entered the country.

The Bail Reform Act lets federal judges release defendants before trial or sentencing under set conditions. In Veloz-Alonso, the question was whether a judge's bail order could override ICE's power to detain and deport.

The Facts

Cesar Veloz-Alonso, a citizen of Mexico, had been removed from the U.S. in 1997, 1999, and 2008. In 2018, he was found in the U.S. again, indicted for illegal reentry, and pleaded guilty. (The original version of this article said he had been convicted of illegal reentry four times over a 20-year period.)

After a guilty plea, the Bail Reform Act requires detention unless the judge finds by clear and convincing evidence that the person is not a flight risk or a danger. 18 U.S.C. § 3143(a)(1). The government argued he was a flight risk because ICE would pick him up and deport him before sentencing.

Release on bail in an illegal reentry case is very unusual, because most people facing these charges are seen as a flight risk. His lawyer, however, showed he was an active member of his community. His employer testified that he was a reliable worker who would not leave his family in the U.S.

The judge released him, with electronic monitoring and a lien on his house. The judge also ordered the government, under threat of contempt, "to refrain from detaining or deporting the Defendant while he is released pending sentencing." The judge's view was that deporting him would ignore the court's power to set bail under the Bail Reform Act. According to the original article, the prosecutor refused to answer the judge's question about why the government would not drop the federal charge so ICE could go forward with removal.

The Sixth Circuit's Ruling

The government appealed, arguing it had the authority to continue with removal. The Sixth Circuit reversed. It held the district court was wrong to find a conflict between the two laws and wrong to block ICE.

Put simply, the Bail Reform Act and the immigration laws run side by side. Prosecutors handle the criminal case, and ICE handles removal. A judge's bail order does not stop ICE from doing its job.

The original article said the case drew significant attention because it was the first time a federal appeals court addressed whether a defendant out on bail can be deported before sentencing.

What This Means

When this post was written in 2018, the Trump administration had taken a more aggressive approach than earlier administrations to detaining and deporting undocumented immigrants. That made it harder for federal courts to coordinate criminal cases with deportation. As Veloz-Alonso shows, a defendant on bail could be deported and never be sentenced in the criminal case.

If you or a family member face both a federal charge and immigration consequences, raise the immigration issues with your lawyer early. Timing matters, both for your sentence and for whether you are deported right away. It helps to have the criminal case docket number, any prior removal orders, and any immigration paperwork ready when you talk with a lawyer.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.