State

Bail hike issue has DA, ICE at odds

Facing charges she possessed several pounds of methamphetamine, Noelia Cardenas found help from an unlikely source: the federal government.

After posting bail, Cardenas was picked up by immigration officials who knew she was an illegal immigrant.

They sought to deport her, and Cardenas gave them her blessing. She was sent back to Mexico on Feb. 2, less than two months after she was arrested. Cardenas was due to face a judge in Stanislaus County Superior Court on March 23.

"She will have successfully escaped justice and may never be held accountable for the crimes she committed," said Steve Jacobson, an investigator with the district attorney's office.

Cardenas is among a small number of illegal immigrants who choose to be sent home rather than sit in a California jail.

Illegal immigrants convicted of crimes in the United States are expected to serve out their sentences and then are deported to their home countries. Currently, 64 illegal immigrants are housed in Stanislaus County jails, nearly all from Mexico.

Since about 2000, Jacobson said, he has seen more illegal immigrants leaving custody on bail before their trials, then choosing not to fight deportation or even request it.

Last week, a prosecutor tried to keep history from repeating itself with 33-year-old Samuel Mendez Contreras, a Mexican national who faces up to 16 years in prison for having sexual intercourse multiple times with a 13-year-old girl.

Contreras posted the $75,000 bail and was taken into custody by federal immigration officials. Contreras asked to be deported as soon as possible, according to court documents.

Increase ruled justified

But on Thursday, prosecutor Annette Rees successfully argued to raise Contreras' bail to $300,000 out of fear he, too, would be deported before he faced trial for his alleged crimes.

"I'd be happy to give him a fair trial," Rees said, "but he has to be here."

Superior Court Judge Marie Silveira ruled the bail increase was justified in light of the serious charges and the risk Contreras could be sent out of the country with no chance to return.

"It's a very grave matter," Silveira said of the charges.

The federal government's interest centers on getting illegal immigrants out of the country as quickly as possible, especially if they're picked up on suspicion of a crime.

A spokeswoman with Immigration and Customs Enforcement, a division of the Department of Homeland Security, said the law does not allow her agency to hold someone on state charges if the defendant has posted bail.

Virginia Kice said ICE's San Francisco office oversaw the deportation of more than 17,000 illegal immigrants from Northern California, including 8,300 who had prior criminal convictions.

"We're responsible for ensuring that the deportation hearing process goes forward," Kice said. "When you have a situation where a potentially dangerous criminal is put back on the street ... ultimately we can seek to send them out of the country so they can't reoffend in that community."

But Turlock immigration lawyer Axel Gomez, who does not represent Contreras, said such decisions could create a double standard for setting bail based on a person's immigration status.

"It is a slippery slope," Gomez said. "There could be two bail scales -- one for citizens, one for noncitizens. Where do we stop?"

Factor: Likeliness to show up

Rees said a judge has the right to consider the probability a defendant will show up in court as a factor in setting bail amounts.

"If any defendant out on bailwere found with documents proving he or she were intent on leaving the country, and not returning, we would bring that before a judge and ask for an increase in bail," Rees said. "We are all working ... to ensure both defendants and victims have an opportunity for a fair trial."

Bee staff writer Merrill Balassone can be reached at mbalassone@modbee.com or 578-2337.

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