PROSECUTING ILLEGAL IMMIGRANTS

1. PROSECUTING ILLEGAL IMMIGRANTS Miles Madorin Deputy District Attorney First Judicial District

2. PROSECUTING ILLEGAL IMMIGRANTS Illegal immigrants commit the same crimes that citizens and legal residents commit�domestic violence, drugs, theft, assaults, etc. However, the crimes resulting from giving false identifying information to the police appear to be committed disproportionately by those who are in this county illegally

3. PROSECUTING ILLEGAL IMMIGRANTS These police contacts include Lack of identification documents, or forged identification documents Lack of vehicle documents such as registration or proof of insurance Often a language barrier with between police and suspect Prior criminal history under a different name and very often active arrest warrants

4. PROSECUTING ILLEGAL IMMIGRANTS Proof is obtained through a CBI comparison with fingerprints on file More than one alias is common and actual name is never really known Birthdates are usually different also Most common charges are forgery and impersonation, sometimes identity theft

5. PROSECUTING ILLEGAL IMMIGRANTS Immigration status is only confirmed if ICE places a hold�timing is not consistent Immigration status is never a factor in the filing of charges We do argue immigration status indirectly in the setting of bond�to show lack of ties and reason to flee, and to prevent ICE removal prior to resolution of charges

6. PROSECUTING ILLEGAL IMMIGRANTS Most often we have very little information about the defendant Residence Work history Family Even criminal history is uncertain

7. PROSECUTING ILLEGAL IMMIGRANTS Multiple aliases usually are common names Even when ICE puts a hold on the defendant, we do not always receive any information from ICE ICE is not consistent about handling of misdemeanor cases

8. PROSECUTING ILLEGAL IMMIGRANTS Many defendants, although provided interpreters and counsel, seem confused about the court process For example, they believe their bond is the amount of their fine

9. PROSECUTING ILLEGAL IMMIGRANTS Victims and witnesses are not queried about their immigration status. Only rarely is ICE notified Although special visas are available, they do not seem to be widely used Most victims/witnesses are cooperative anyway

10. PROSECUTING ILLEGAL IMMIGRANTS Overarching problem in handling prosecution of illegal immigrants is the unavailability of alternative sentences Some judges choose to ignore the immigration status and try to utilize alternatives such as probation

11. PROSECUTING ILLEGAL IMMIGRANTS Overarching problem in handling prosecution of illegal immigrants is the unavailability of alternative sentences Most judges seem to believe that probation and other alternative sentences such as community corrections are unavailable

12. PROSECUTING ILLEGAL IMMIGRANTS Overarching problem in handling prosecution of illegal immigrants is the unavailability of alternative sentences Without alternative sentences judges are faced with two options Sentence to a minimum term of incarceration Creatively sentence to a lesser term with the idea that deportation will occur This reality determines plea negotiations, sentencing, everything. Not every judge is consistent every time because the circumstances can be widely divergent. Low-level, non-violent crimes generally do not result in a prison sentence. Some immigrants have been here a long time, even brought here as children. Others we see have been previously deported. Very difficult for those in the system to reach a result consistent with that facing an American citizen. Should all illegal immigrants convicted of every felony go to prison? If the judge does not feel prison would otherwise be appropriate does that constitute extraordinary mitigation? Should the judge suspend part of the sentence on condition of deportation? Is a court�s order not to return enforceable as a practical matter?This reality determines plea negotiations, sentencing, everything. Not every judge is consistent every time because the circumstances can be widely divergent. Low-level, non-violent crimes generally do not result in a prison sentence. Some immigrants have been here a long time, even brought here as children. Others we see have been previously deported. Very difficult for those in the system to reach a result consistent with that facing an American citizen. Should all illegal immigrants convicted of every felony go to prison? If the judge does not feel prison would otherwise be appropriate does that constitute extraordinary mitigation? Should the judge suspend part of the sentence on condition of deportation? Is a court�s order not to return enforceable as a practical matter?

13. PROSECUTING ILLEGAL IMMIGRANTS Overarching problem in handling prosecution of illegal immigrants is the availability of alternative sentence. We do not always know who is going to be deported, even if there is an ICE hold. If any area is ripe for legislation this might be it. Of course this primarily a federal government problem, but perhaps some state system could be established for guidance about how to handle a defendant who is otherwise an appropriate candidate for alternative sentencing, but is ineligible due to immigration status.If any area is ripe for legislation this might be it. Of course this primarily a federal government problem, but perhaps some state system could be established for guidance about how to handle a defendant who is otherwise an appropriate candidate for alternative sentencing, but is ineligible due to immigration status.

14. HUMAN SMUGGLING AND RELATED OFFENSES Three main statutes relevant to illegal immigration Human smuggling Human trafficking Coercion of involuntary servitude Human smuggling is assisting those who are in this country illegally by providing them transportation in exchange for money. Human trafficking is basically buying and selling a person and does not only apply to immigrants, but factually usually involves those from other countries. Coercion of involuntary servitude is forcing labor out of someone either withholding their immigration documents or threatening to notify ICE of their status. No prosecution yet of trafficking. Was one coericion case but resulted in an aquittal of those charges.Human smuggling is assisting those who are in this country illegally by providing them transportation in exchange for money. Human trafficking is basically buying and selling a person and does not only apply to immigrants, but factually usually involves those from other countries. Coercion of involuntary servitude is forcing labor out of someone either withholding their immigration documents or threatening to notify ICE of their status. No prosecution yet of trafficking. Was one coericion case but resulted in an aquittal of those charges.

15. HUMAN SMUGGLING AND RELATED OFFENSES Human smuggling has been the primary prosecution�others only on a limited basis. Informal working group has suggested creation of a more formal interagency task force. AG is working on these issues. AG is working on these issues.

16. HUMAN SMUGGLING AND RELATED OFFENSES This is primarily a problem to develop admissible evidence, the elements are pretty clear I did have some problem with the elements mostly in terms of whether we had to prove the passengers were here illegally or whether we had to prove he intended to help illegals regardless of their actual status. We prevailed on the latter. In most of them the defendant made incriminating statements. The only cases I have seen or heard of have been against the driver. No attempt to investigate who hired the driver.I did have some problem with the elements mostly in terms of whether we had to prove the passengers were here illegally or whether we had to prove he intended to help illegals regardless of their actual status. We prevailed on the latter. In most of them the defendant made incriminating statements. The only cases I have seen or heard of have been against the driver. No attempt to investigate who hired the driver.

17. HUMAN SMUGGLING AND RELATED OFFENSES It is important for the police to assume the passengers will not be present for trial and to try to develop as much evidence as possible other than their statements Basically I treat these like homicide cases, in that I know the victim will not be present for trial. In theory we could get depositions and I know the one DA�s office does that, but it does not seem like a practical solution for our office. Lots of potential evidence is available. We make copies of all of their documents. We get the numbers of any cell phones or seize the drivers cell phone. The vehicle itself is evidence. There is evidence in the vehicle such as maps.Basically I treat these like homicide cases, in that I know the victim will not be present for trial. In theory we could get depositions and I know the one DA�s office does that, but it does not seem like a practical solution for our office. Lots of potential evidence is available. We make copies of all of their documents. We get the numbers of any cell phones or seize the drivers cell phone. The vehicle itself is evidence. There is evidence in the vehicle such as maps.

18. HUMAN SMUGGLING AND RELATED OFFENSES The defendants are generally also in this county illegally and are hired to drive for a small fee.

19. HUMAN SMUGGLING AND RELATED OFFENSES The passengers are usually arrested by ICE and deported. In my case they were not. In my case we had Border Patrol documents showing they had crossed the border several times in the week or two leading up to their apprehension in Wheat Ridge and had been escorted back. Of course in a trafficking or coercion case the victim would need to be available to testify.In my case they were not. In my case we had Border Patrol documents showing they had crossed the border several times in the week or two leading up to their apprehension in Wheat Ridge and had been escorted back. Of course in a trafficking or coercion case the victim would need to be available to testify.