No Surprise: Case Managers Are Creating Confusion
The technical and legal fact is that yes, undocumented inmates should receive benefits from the First Step Act and Second Chance Act, and can be placed in community confinement like a Halfway House. Assuming, of course, that the undocumented inmate’s offense allows qualification.
However, case managers in the federal prison system routinely tell undocumented inmates that the answer is no for each aforementioned point.
In a decision for a motion that we helped prepare, Sanchez Ledesma v. Warden Wingfield in the Southern District of Mississippi, the federal district court agreed and the U.S. Attorney concurred that a detainer is not a final order of removal.
In fact, it was reiterated that only a federal immigration judge can issue a final order of removal. Not a BOP officer, ICE agent, or anyone else. Only a judge.
In many cases, a detainer will say that the inmate is facing a final order of removal, but it is not in fact the final order itself. This is what the decision said.
An inmate is only disqualified from receiving benefits from the First Step Act if they are subject to a final order of removal. A detainer doesn’t matter. Until a federal immigration judge issues that order, case managers should be applying the same benefits as everyone else to undocumented inmates.