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Ninth Circuit Finds that ICE Detention After Indictment Counts Against Sentence

Ninth Circuit Finds that ICE Detention After Indictment Counts Against Sentence

by Derek Gilna

Petitions under 28 U.S.C. § 2241 are used to challenge federal sentencing calculations, and Daniel Alejandro Zavala did just that, arguing that he was entitled to credit for the time he spent in Immigration and Customs Enforcement (ICE) custody after he was indicted. The district court disagreed but the Ninth Circuit reversed on May 18, 2015, holding that Zavala was entitled to credit for time served in ICE custody under 18 U.S.C. § 3585(b).

After completing a state sentence, Zavala, a Mexican national, was detained by ICE. The agency determined that he had previously been removed from the United States by a deportation order and had reentered the country illegally. He was then prosecuted for illegal reentry, transferred between ICE and U.S. Marshals custody several times, and eventually sentenced to 46 months in federal prison.

The BOP granted Zavala sentencing credit for time spent in the custody of the U.S. Marshals prior to his conviction, but not for time served in ICE custody.

According to § 3585, a defendant is entitled to sentencing credit for time spent in “official detention prior to the commencement of the term of imprisonment,” but the statute does not define “official detention.” The Court of Appeals noted, “Under the plain meaning of the words, detention is the holding of aliens in custody (which the immigration statutes expressly describe as ‘detention’), and ICE is without question an official entity.”

The appellate court rejected the BOP’s argument that their administrative Program Statement interpreting § 3585 precluded them from granting the sentencing credit, since the Program Statement did not mention or address time spent in immigration custody pending a criminal sentence – only pending deportation proceedings.

The Ninth Circuit concluded that “when immigration officials detain an alien pending potential prosecution, the alien is entitled under § 3585(b) to credit toward his criminal sentence. We also hold that an alien is entitled to credit for all time spent in ICE detention subsequent to his indictment or the filing of formal criminal charges against him. Finally, we hold that where a factual dispute exists, the district court must hold an evidentiary hearing as to whether an alien’s detention by ICE prior to the date of his indictment or the filing of criminal charges against him constituted detention pending prosecution.” See: Zavala v. Ives, 785 F.3d 367 (9th Cir. 2015).


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Related legal case

Zavala v. Ives