BOZEMAN, Mont. (AP) — A Mexican citizen who feared posting bail on a misdemeanor sexual assault charge in Montana because he was the subject of a civil immigration hold was released from jail this week and, within an hour, was taken into custody by immigration officials.
Public defender Annie DeWolf argues Arturo Valerio-Gonzales' release Wednesday was coordinated by local and federal officials to render moot an effort before the Montana Supreme Court that argues civil immigration holds are illegally keeping defendants in jail. Such detainers are a request for local authorities to hold someone who is suspected of being in the country illegally for another 48 hours after they are eligible for release from custody. The extended detention allows immigration agents to decide whether defendants should be taken into federal custody to begin the deportation process.
The Gallatin County attorney's office filed a motion Thursday asking the Supreme Court to declare DeWolf's petition moot because he has already been released. The attorney general's office did the same on Friday.
DeWolf said she still plans to ask the state Supreme Court to rule on the issue because it could be repeated.
Valerio-Gonzales, 46, had been jailed since the charges were filed in June even though he could afford to post bail. His trial was scheduled to start Dec. 12.
The American Civil Liberties Union of Montana, the Montana Human Rights Network and other groups filed a brief supporting Valerio-Gonzales' release.
"Arturo Valerio-Gonzales is not the first person in Montana, nor will he be the last, to have his detention unlawfully prolonged due to the improper use of ICE detainers," wrote ACLU of Montana legal director Alex Rate. "Montana should join the list of states that have rejected the widespread use of civil ICE detainers as a means of unlawfully imprisoning individuals, who enjoy the presumption of innocence, pending trial."
On Wednesday, Valerio-Gonzales appeared in court in street clothes. The Justice of the Peace delayed his trial until Jan. 6 because DNA evidence was not yet available. Without a motion from either side, and over the objections of both, the judge ordered Valerio-Gonzales released without bond.
"ICE somehow learned about the own-recognizance release, arrived in Bozeman and assumed custody of Mr. Valerio-Gonzales," within an hour, DeWolf wrote in a brief filed with the Supreme Court on Thursday.
The defendant believes the Gallatin County jail administrator "has acted in bad faith in an attempt to prevent (the Supreme Court) from reviewing the matter," DeWolf wrote.
Attorneys for Valerio-Gonzales also are subpoenaing information about any communications among local law enforcement, ICE and the DOJ.
"These communications will shed light on the abnormal proceedings that accompanied Mr. Valerio-Gonzales' sudden release — after months of custody — and his transfer to the custody of federal immigration authorities," DeWolf
In it's brief, the attorney general's office criticized Valerio-Gonzales' petition as a "thinly veiled request" for the court to nullify federal immigration law. It argues that the Gallatin County jail has the authority to voluntarily comply with an immigration detainer.
Valerio-Gonzales was charged with sexually assaulting a woman in a vehicle at a gas station near Bozeman. The woman said she had been traveling with the defendant and that they had pulled over to rest when the alleged assault occurred. He has pleaded not guilty.
Valerio-Gonzales has lived in Utah for about 20 years and has two children who are American citizens, DeWolf said. She said she did not know if he was in the country illegally.