DAVENPORT ? One of two men who failed to appear in U.S. District Court in Davenport on June 26 because he was being held in Immigration and Custom Enforcement Custody has been deported to Mexico, according to court documents.
Reinaldo Garcia Munoz was one of 32 men arrested May 9 during a raid by ICE officials in Mt. Pleasant, and was one of five who have appeared in federal court in Davenport because the charges against them are felonies.
He was charged with unlawful re-entry, having been deported from the United States twice before. He was deported for a third time on July 3.
The other defendant, Elmer Urizar Lopez, still is being held in the Hardin County Jail in Eldora. He, too, is charged with unlawful re-entry, having been deported from the United States once before.
Each of the unlawful entry charges carries a sentence of up to two years in prison and/or a fine of up to $250,000, a $100 special assessment and supervised release ranging from one to two years. Because the previous deportation orders against Munoz from 2009 and 2013 still stand, he could have been removed at any time under immigration rules and procedures, his attorney, Eric Tindal of Iowa City said.
But both Tindal and Charles Paul, a certified law student practitioner representing Lopez, argue that in handling these men?s cases, the government (meaning ICE and the Attorney General) cannot have it both ways ? it cannot both prosecute under the judicial branch AND carry out deportation under immigration rules and procedures of the executive branch.
Tindal calls this a ?muddy issue? that ?we?re all struggling with a little bit.?
If operating under the jurisdiction of the judicial branch, ICE and the Attorney General would have to follow the law regarding bail, allowing for the release of prisoners awaiting trial, Tindal argues.
?So when a judge makes a determination that a person should be released, the government has to honor that,? Tindal said. ?And it did not,? he said, referring to his client, Munoz.
In a response filed for Lopez, Paul argued similarly: ?the executive branch cannot proceed with both immigration and federal criminal proceedings simultaneously without violating the Bail Reform Act and the U.S. Constitution.?
In his responses to both cases, Assistant U.S. Attorney Richard D. Westphal of Des Moines argued there can be simultaneous criminal and administrative hearings and that ICE is not in contempt in any way. He also asked that the court reopen the detention hearings against Lopez.
In addition to arguing the judicial vs. executive branch point, Tindal said he hopes to file yet this week a request that the illegal re-entry charge against Munoz be dismissed with prejudice, meaning it can?t be refiled.
The reason is a hope that, down the line, Munoz might qualify for legal entry.
If that request were granted, and if Munoz? wife is successful in obtaining a lawful visa, then Munoz ?could potentially gain lawful status? and the previous deportation orders would not be enforced, Tindal explained.
In addition to his wife, Munoz, a native of Mexico, has two children living in the Mt. Pleasant area, along with his mother.
Lopez, a native of Guatemala, is a single parent and sole support of his 15-year-old son, according to Tammy Shull, chairwoman of IowaWINS, a refugee/immigrant assistance group based at First Presbyterian Church, Mt. Pleasant.
The three other men who have appeared in federal court in Davenport ? Ricardo Macias Saucedo, Elmer Joel Espinal and Oscar Romeo Mota Rivera ? all have had future court dates set.
Saucedo?s trial date is set for Sept. 4 and Espinal?s is set for Oct. 1. Both are charged with unlawful entry.
Saucedo, a native of Mexico, was previously deported in 2008. He has a wife and two children in Mt. Pleasant.
Espinal, a native of Honduras, was deported in 2007. His history includes a 2004 conviction in Texas for assault causing bodily injury, according to court documents. He has a wife and two children in the Mt. Pleasant area, Shull said.
A hearing for Rivera has been continued until September because his attorney has a pre-scheduled eye surgery. Rivera is charged with unlawful re-entry, as well as fraud and misuse of visas/permits, misuse of Social Security numbers and use of identification documents not lawfully issued.
Rivera, a native of Guatemala, was deported in 2015. He has a sister living in the United States, Shull said.
The other 27 men who were arrested in Mt. Pleasant did not have previous convictions, so they face civil, not criminal, charges. Of those, most have been released from custody pending further court proceedings, although three have been deported.
The men were arrested at a concrete plant.