Judge Faults U.S. for Holding Immigrant Defendants Freed on Bail

By ALAN FEUER JAN. 7, 2018

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While it is hardly unusual for customs officials to nab drug suspects at New York’s airports, what happened next not only broke the law, his lawyer says, but also seemed in keeping with a recent shift in immigration policy that a federal judge in Brooklyn has complained of twice in separate cases in the last three months.

A few weeks ago, Mr. Lett was freed from the custody of the Brooklyn court and was supposed to be released on a $30,000 bond to his aunt’s house in New Jersey. He never made it. Instead, court papers say, he was rearrested on an immigration detainer and sent to an immigration detention center at the Hudson County Correctional Facility in Kearny, N.J.

According to both Mr. Lett’s lawyer and the judge, Dora L. Irizarry, the government cannot decide to criminally prosecute immigrants and then keep them locked up on immigration detainers, if, as their cases proceed, they are granted bail. To do so, they said, was to take what amounted to a second bite of the apple, one that skirted the constitutional protections of the criminal-justice system by using the separate immigration process to obtain a result they failed to get the first time.

“The executive branch has a choice to make,” the lawyer, Michelle Gelernt, wrote last week in a motion to dismiss Mr. Lett’s charges. “Whether to proceed with the criminal case against Mr. Lett or whether to proceed instead with his removal.”

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