ICE deportations are derailing criminal prosecutions

Shelly Bradbury, Tribune News Service

“Clerk notified via email that deft” — the defendant — “has been removed from the country,” Chief Judge Jeffrey Pilkington wrote in a May 19 order. The deportation effectively ended the state’s criminal case against Castillo — the prosecution cannot continue without his presence in court, though he remains wanted on a warrant and could be prosecuted if he were to return to Colorado. There was no conviction, no sentence, no jail time — just a deportation.

“It’s been pretty hard on me and my daughter,” JE said. “She doesn’t feel like she is getting the justice she deserves. It just has been so easy for immigrants to come into the country after they are deported. So the fear is that he might relocate somewhere else in the US and do this to someone else. Them deporting him ruined justice for my daughter.” At least two dozen defendants and one witness in criminal cases in metro Denver have been taken into custody by US Immigration and Customs Enforcement and deported in the middle of ongoing state prosecutions since September, The Denver Post found. District attorneys across the region started to notice more defendants disappearing into ICE custody this spring, as President Donald Trump ramped up deportations nationwide.

Colorado district attorneys who spoke with The Post said such deportations are not in the interest of justice and do not improve public safety over the long term. “If I can’t hold someone accountable because the defendant is deported before we’ve reached a just outcome in the case, and the defendant finds their way back here and commits another crime, that does not make the community safer,” 17th Judicial District Attorney Brian Mason said. “If victims of crime are afraid to call the police after they have been sexually assaulted or some other terrible crime because they are worried about being deported, that makes our community less safe.” The defendants deported were charged with crimes that included driving under the influence, car theft, drug distribution, assault, domestic violence, attempted murder and human trafficking. Again and again, court records reviewed by The Post showed criminal cases stalled by deportations. “Def does not appear as he was deported and is no longer in the US,” a document notes in the file for a 26-year-old man from Brazil who was accused of swinging a knife at his wife.

“Deft no longer in the country. Defendant (failed to appear),” a record states in the file for a 32-year-old man from Mexico charged with driving a stolen car.

Detectives with the Arapahoe County Sheriff’s Office and the Denver Police Department spent six months building a case against a 28-year-old man from El Salvador who they alleged sold drugs and was connected to a woman who fatally overdosed at an Arapahoe County apartment complex in October. The investigation included a drug deal with an undercover Denver detective and ongoing surveillance. The man was charged with four felony counts related to drug dealing and two counts of child abuse after the six-month investigation culminated in his arrest on April 9.

The man’s arrest affidavit notes that he was arrested by the Aurora Police Department’s SWAT team, and then, without further explanation, says he was taken into custody by ICE. Aurora police spokesman Joe Moylan said the city’s SWAT team assisted in the arrest and then turned the man over to the sheriff’s office while at the scene. Anders Nelson, a spokesman for the Arapahoe County Sheriff’s Office, said the agency “partners with ICE” when pursuing cases against suspected non-citizen drug dealers.

“ICE uses various means to positively identify these individuals, and so when they are arrested, ICE agents respond to identify the individual so that we can charge them accordingly under their correct name,” Nelson said. “In this case, the subject had a lengthy criminal history that included active warrants for his arrest and had entered the US illegally on several occasions, and so ICE agents took custody of him.” The suspect accused of selling drugs was deported within a month. The state criminal case remains open. “Deft has been deported,” the man’s court records noted on May 9. In an emailed statement, Denver ICE spokesman Steve Kotecki said the federal agency “arrests aliens who threaten public safety and commit crimes.”

Before their recent arrests and deportations, the two men from El Salvador and Brazil had previously been cited only for traffic violations in Colorado, according to records kept by the Colorado Bureau of Investigation. The man from Mexico had prior convictions for car theft and drug possession. “ICE recognizes the importance of addressing unlawful actions with the full force of the law, ensuring that individuals are held accountable for their actions,” Kotecki said in the statement. “We are committed to creating safe and thriving communities by supporting effective and fair law enforcement practices.”

Tristan Gorman, a criminal defense attorney, noted that ICE’s mid-case deportations, which come before a defendant is convicted of a crime, are “completely disregarding the constitutional presumption of innocence.” Mason, who serves as DA for Adams and Broomfield counties, said federal agencies “are under enormous pressure to implement the policies of the current administration.”

“This is new,” he said of the growing number of mid-case deportations.

In the past, when ICE detained defendants while their state cases were ongoing, prosecutors relied on court orders called writs to ensure the defendants still appeared in court. A writ in this context is a judge’s order to a custodial agency, like a jail or immigration detention center, requiring the agency to bring the defendant to court. ICE is no longer reliably complying with writs to produce defendants for their state hearings, First Judicial District Attorney Alexis King said. “It’s hard to know and it’s hard to predict how a writ will be honored or not,” she said. “... A writ was our standard process that we relied on to keep someone available for a criminal proceeding. It is not consistently working.” ICE hasn’t communicated its policies or procedures in any cohesive way to her team of Jefferson and Gilpin county prosecutors, King said. Her office is relying on personal connections between staff and officials at ICE to try to ensure defendants in federal custody are brought to court.

“It’s felt pretty ad hoc, and often reliant on us being very proactive,” she said. ICE officials informed the Adams County Sheriff’s Office and the Denver Sheriff Department in June that the agency would no longer comply with writs for detainees in immigration custody to physically appear in the counties’ criminal courts. “ICE Denver is no longer honor (sic) writ from Denver County Court due to the Denver County Jail do not (sic) comply with immigration detainer or fail to transfer custody of aliens in a safe and orderly manner,” Hung Thach, a supervisory detention and deportation officer in the Denver field office, wrote in a June 16 email to Denver officials.

In a statement issued to 9News and Colorado Public Radio, Denver Field Office Director Robert Gaudian said ICE would not honor the writs because agency officials were not confident the detainees would be returned to ICE’s custody after their state court appearances.

Kotecki did not respond to a request to share that statement with The Post. He previously has requested blanket anonymity for his statements as a spokesman for the federal agency, which The Post declined to grant. He also has said he would no longer provide information to The Post unless the newspaper complied with his request for anonymity. “In the past, ICE Denver and the Adams County sheriff have enjoyed a great working relationship, with ICE honoring writs for trials and the sheriff notifying us of an alien’s release,” Gaudian said in the statement, according to 9News. “This relationship must be reciprocal, though. If I’m not confident that the sheriff will return an alien to us, then I cannot in good conscience release that individual.”