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Illegal Alien Not Required to Submit Dual Parole Plans in California

California's First District Court of Appeals has held that a prisoner is not required to prepare a parole plan for both California and a country he will be deported to if there is a conclusive presumption that he will be deported upon release.

Before the Court was the appeal of prisoner Liber R. Andrade, who was convicted in 1982 of second-degree murder and aggravated assault and sentenced to a term of 17 years to life. Because he was an illegal alien from Mexico, the Immigration and Naturalization Service placed a hold on him.

At his first parole hearing, the Board of Prison Terms (Board) found Andrade suitable for parole, setting a June 1995 release date. In May 1995 the Board rescinded the grant of parole. Andrade challenged his earlier denial of parole, which was based on two factors: (1) the commitment offense, which was described as "violent and brutal" and "demonstrated a disregard for human life," and (2) the need for Andrade to have viable parole plans for California.

The Court affirmed the denial of parole based upon the commitment offense; however, it elaborated on the wrongfulness of requiring Andrade to submit parole plans for California and Mexico when the probability of his deportation was high.

The Board's position was apparently that it did not believe Andrade's parole plans were realistic because they did not cover the contingency that he may remain in the United States. The Court held the Board had misconstrued § 2402 of Title 15 of the California Administrative Code, which requires the Board to consider whether "the prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release."

The regulation does not require an illegal alien "conclusively presumed" to be deportable to have fail-safe parole plans in two different countries.

Both Andrade's presence and employment in the United States after his release would be illegal. The state cannot assert the federal government will not deport him, and a government may not require as a condition of parole that someone arrange to violate the law. The Board's insistence that an illegal alien have employment plans in the U.S. did precisely that.

As such, the Court held that Andrade could not be required to make parole plans for California and Mexico. Rather than hold that against him, the Board should have considered Andrade's Mexico-based parole plan as a factor supporting his suitability for parole.

The Court, however, denied Andrade's petition because his parole would have been denied based on the factors related to his commitment offense. See: In re Liber R. Andrade, on habeas corpus, 141 Cal.App.4th 807, 46 Cal.Rptr.3d 317 (Cal.App. 1 Dist. 2006).

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Related legal case

In re Liber R. Andrade, on habeas corpus