Immigrant Gets Time-|Served Credit in 9th Cir.

     PASADENA, Calif. (CN) – The 9th Circuit ruled Monday that an undocumented immigrant should be granted credit for time spent in immigration detention for his criminal sentence for illegal re-entry.
     Daniel Zavala was transferred from state custody, where he had finished serving a state criminal sentence, into Immigration and Customs Enforcement custody in September 2010.
     He was given a form by an ICE officer that stated Zavala was found to be the subject to a prior order of removal in 2006, that he was removed that year, and that he illegally re-entered the United States in July 2009.
     Although ICE had the authority to remove Zavala after it regained custody of him, the agency chose to detain him for 16 days, during which he was charged in Nevada with illegal re-entry.
     Zavala was transferred to the custody of the U.S. Marshals Service, (USMS) then returned to ICE custody for 12 days until he was charged in California – the proper venue – for the same crime.
     Zavala was sentenced to 46 months in prison and three years of supervised release, and was granted credit by the U.S. Bureau of Prisons for the time he spent in the Marshals custody, but not the time he was detained by ICE, because it did not constitute “official detention.”
     A three-judge panel found that when ICE detains an undocumented immigrant awaiting potential criminal prosecution it is an “official detention” and the immigrant is entitled to credit toward a criminal sentence.
     “Given that prosecutions for immigration-status crimes result from cooperative efforts between the two sets of officials, it would be arbitrary to afford sentencing credit when the government elects to hold a defendant in USMS detention while it builds its criminal case but not when the government elects to hold a defendant in ICE detention while it does so,” Judge Stephen Reinhardt wrote for the panel.
     If immigration detention is not an “official detention,” undocumented immigrants may serve sentences of varying lengths based on which agency detains the immigrant.
     “Individuals in immigration detention, unlike those in USMS detention, could be subjected to lengthy periods of detention with no offsetting sentencing credit,” Reinhardt wrote. “Further underscoring the arbitrariness of a blanket rule denying sentencing credit any time aliens are in ICE detention is the fact that BOP [the Bureau of Prisons] itself has afforded credit to aliens held in state detention pending federal prosecution.”
     Judge Consuelo M. Callahan concurred in part and dissented in part. She wrote that an undocumented immigrant should not be entitled to credit toward a criminal sentence while detained by ICE pending potential criminal prosecution.
     “The bright-line rule adopted by most courts, that ICE custody becomes ‘official detention’ … when an alien is indicted or criminally charged, makes much more sense as a matter of efficient administration,” Callahan wrote.
     She wrote that Zavala should not receive credit for the 16 days he was detained by ICE for the first time, but should receive credit for his second stint after he was indicted.
     While Reinhardt found Zavala was improperly denied credit for the second time he was in ICE custody, Reinhardt ordered the court that convicted Zavala to find whether the first time he was held by ICE was pending deportation or pending potential prosecution. If he was held for the latter, he is also entitled to credit for that time period.
     Zavala’s attorneys could not be immediately reached for comment Monday.
     The U.S. Attorney’s Office declined to comment.

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