On the eve of Trump’s inauguration, with immigration politics heating up, I take up not sanctuary cities, the mass deportation of criminal aliens, or the “big, beautiful wall,” but the more obscure issue of whether and when a judge can deny probation to an undocumented immigrant on the basis of his or her immigration status. In a case the Nebraska Supreme Court decided last week, Jose Cerritos-Valdez, an undocumented immigrant, was convicted of a DUI and a misdemeanor drug charge. (See 295 Neb. 563 (Neb. 2017).) Cerritos-Valdez asked the trial judge for probation, but the judge opted for a straight jail sentence and made this remark upon sentencing:
[H]e’s not in the United States legally and that becomes problematic for the Court when probation is being requested because were he here legally, the Court might entertain probation but it’s very difficult, if not impossible, for the Court to impose probation when the first term of probation is that you obey all laws; and to obey all laws, you would have to leave this country, which would then conversely make it impossible for you to be supervised by probation.
Cerritos-Valdez appealed the sentence, asserting that he was illegally denied probation based solely on his status as an undocumented immigrant. In upholding the sentence, the Nebraska Supreme Court joined what it called a “consensus” that “it is impermissible for a sentencing court to deny probation based solely on a defendant’s undocumented status.” (Cerritos-Valdez, it found, was not denied probation solely because of his undocumented status.) That consensus is consistent with longstanding notions of sentencing: Just as Harvard and other elite universities subject applicants to a “whole-person” review, judges must conduct a “whole-offender” review when imposing sentence.
There is also consensus that illegal alien status can be a proper sentencing consideration. Indeed, the caselaw, while not uniform, indicates that judges can afford illegal alien status substantial weight in certain cases, so long as the court ties an offender’s undocumented status to traditional sentencing considerations, e.g.: (1) Is the offender able to lead a law-abiding life in the community? (2) Does the offender have an extensive criminal history? (3) Will the offender maintain suitable employment? (4) Does the offender have a social support system? Consider, from People v. Cesar, 131 A.D.3d 223 (N.Y. App. Div. 2015), this list of factors that may legitimately affect whether an undocumented immigrant is given probation: (1) “the likelihood of the defendant’s deportation during the probationary period,” (2) “the defendant’s history, if any, of repeated departures from and illegal reentries into the United States,” (3) “the presence or absence of family in the United States,” (4) “the defendant’s employment history,” and (5) “the defendant’s legal employability.”
The factors Cesar cites reappear in related caselaw. For instance:
Factor #1: Although the Oregon courts have held that immigration status is not per se relevant to sentencing, it was deemed relevant where the defendant was facing immediate deportation, and thus couldn’t comply with probation. State v. Morales-Aguilar, 855 P.2d 646 (Or. Ct. App. 1993).
Factor #2: In State v. Martinez, 165 P.3d 1050 (Kan. Ct. App. 2007), the court held that if a defendant’s “continued presence in the United States is in violation of [federal immigration law], that fact alone may constitute a substantial and compelling reason to deny presumptive probation.” An undocumented immigrant’s continued presence in the United States is not a criminal offense unless that individual has previously been deported and has again reentered the United States illegally. (Cerritos-Valdez had reentered the country after a previous deportation, so the trial judge was correct to point out that he would have to leave the country to be in full compliance with the conditions of probation.) Note, however, that courts are inconsistent on this point: In State v. Zavala-Ramos, 840 P.2d 1314 (Or. Ct. App. 1992), the court held that “a history of deportation, standing alone, would not justify” a judge’s decision to impose incarceration instead of the presumptive probationary sentence.
Factor #5: In Trujillo v. State, 698 S.E.2d 350 (Ga. Ct. App. 2010), the trial judge rejected the defendant’s request for probation, explaining that the court could not order him to maintain employment—a standard condition of probation—“without ordering him to violate the law and/or be an accessory to any employer who would hire him in violation of the law.” The court of appeals found the trial judge’s decision fell within his broad discretion upon sentencing.
In short, trial judges have such wide latitude to take undocumented status into account that it will be the rare case where an appeals court finds the trial judge gave undue weight to that status.
And with that, reader, see you in the Trump presidency.