Challenging Bail Determinations for Non-Citizens in New Mexico (Originally published by the New Mexico Criminal Defense Lawyers’ Association in For the Defense; Winter 2012)

Challenging Bail Determinations for Non-Citizens in New Mexico By Carolina M. Ramos & Ernest Herrera

Immigration status & ICE holds may or may not be factored into the calculus of bail determination. Arizona, Oklahoma. Illinois, Virginia and Missouri permit judges to deny bail to certain non-citizens by statute. Arizona had the distinction of being sued by the ACLU & MALDEF after voters passed Proposition 100, The Bailable Offenses Act,1 which explicitly and categorically denies bail to non-citizens charged with certain crimes. Civil rights advocates argued that Prop. 100 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution, the Excessive Bail Clause of the Eighth Amendment, the Fifth Amendment prohibition against self-incrimination, and the Sixth Amendment right to counsel. Plaintiffs also argued that Prop. 100 is unconstitutional under the Supremacy Clause of the U.S. Constitution since immigration is an area preempted by federal law.2

Most jurisdictions look to case law and the Federal Bail Reform Act to support considering alienage as a factor in bail determination. Under this type of approach, state courts focus on the traditional individualized analysis: 1. danger to community; 2. risk of flight; & 3. pre-trial liberty interests. Immigration issues should only be considered as they are related to securing defendant’s appearance at trial or pretrial liberty interests. While immigration status and ICE holds may be factored into bail determination, the state court should not give these factors too much weight in the overall calculus.3 State criminal courts may not impose pre-trial punishment for violations of federal immigration laws, especially where such violations are perceived and unsubstantiated. Likewise, alienage should never undermine the presumption of innocence.

New Mexico has not addressed how immigration issues factor into bail determination by statute or case law. Although not related to immigration, New Mexico has amended its constitution to limit bail rights through the adoption of Constitutional Amendment 3 (1980) and Constitutional Amendment 5 (1988). Most recently, in 2011, Rep. Dennis J. Kintigh4 introduced House Joint Resolution 20 to once again amend the constitution. Although New Mexico has been moving towards limiting rights to bail, New Mexico has a long history of expanding the rights of defendants under the New Mexico Constitution and through case law. In fact, New Mexico has recognized greater protections through an interstitial approach.5 

Therefore, New Mexico is in a unique position where we as a state can provide greater protections for non-citizen defendants. With the political will, New Mexico could in fact become the first jurisdiction to prohibit considerations of immigration status in determining bail. The interstitial approach recognizes that New Mexico enjoys distinctive state characteristics. New Mexico’s culture, politics and legal system are deeply influenced and shaped by the fact that we share an international border with Mexico and special relationships with sovereign Native American nations within the state. New Mexicans are likely to confront inter-jurisdictional issues in this context. Therefore, it makes sense that we would be concerned with how our geographic location and demographics impact our civil rights.

Mexican non-citizens in particular have been a part of the fabric of New Mexico communities since before statehood and since time immemorial. Native and Hispano populations have extensive familial, social, cultural and economic relations into modern day Mexico that have existed since before any international boundary was drawn. The New Mexico Constitution Article II, Sec. 5 explicitly protects additional rights under the Treaty of Guadalupe Hidalgo. Protections for the civil rights of Mexicans in particular were written into the New Mexico Constitution in response to anti-Mexican discrimination and violence during the movement for statehood.

The NM Supreme Court has recognized these distinctive characteristics and provided greater protections for New Mexicans through the interstitial approach and case law.6 In State v. Cardenas-Alvarez, the court departed from more limited federal protections and held that extended detention of defendant at a border checkpoint was unlawful under Article II, section 10 of the New Mexico Constitution.7 Also, New Mexico was the first state to ensure that non-citizen defendants were properly advised of immigration consequences of guilty pleas and convictions in Paredez.8 Creative lawyering in this unique context has the potential of developing model jurisprudence. 

Criminal defense should use this precedent to realize greater equity for non-citizens through challenges to bail determinations that unfairly infringe on non-citizen defendants’ liberty interests and constitutional rights. We should ensure that our state does not move in the direction of Arizona and encourage the judiciary to focus on individualized bail determinations that focus on traditional arguments.

Defense counsel should explain to local courts that the federal immigration courts have jurisdiction to set immigration bonds so our courts should not conflate these issues. Also, the majority of non-citizens are doing everything possible to stay in the U.S. and not be deported.9 Therefore, where it is under the defendant’s control, she/he will be highly motivated to appear for court and resolve the case. Further, ICE holds are not evidence that a person is in the U.S. unlawfully or that they are amenable to deportation. Courts should not attempt to draw conclusions from the filing of a Form I-247 immigration detainer (ICE hold). Immigration matters are highly complex issues that are handled through administrative regulations that are different and separate than criminal law. Local criminal courts should not attempt to make determinations about immigration status and definitely should not be asking defendants to admit to immigration status, unlawful presence or illegal re-entry. Judges should understand that asking clients about these issues is essentially asking them to admit to elements of federal immigration offenses and violates their rights against self-incrimination and right to counsel.

Despite the national trends towards shrinking rights of non-citizens, jurisprudence in New Mexico leaves room for hope for the rights of non-citizens. Although Mexico is a border state, politics have not had the same reactionary tone as in other states, and those politics are likely influenced by New Mexico’s unique demographics and history. We should note that even Arizona demonstrated intolerance for extreme anti-immigrant politics when Russell Pearce, the author of the infamous SB 1070 laws and sponsor of Proposition 100 was voted out of office in a recent recall election. Our courts have given us important protections under the New Mexico Constitution and through case law. However, if we fail to advocate for stronger protections now, either statutory or through case law, we may find ourselves battling the same problems we have seen elsewhere.