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Prosecutors Mistakenly Charged a U.S. Citizen With Illegally Entering the Country

An illegal entry charge against Ricardo Hernandez-Contreras was dismissed last week after his attorney presented his birth certificate to the court. Yet even after the case against him was tossed, court officials said they couldn’t guarantee Hernandez-Contreras wouldn’t be handed over to ICE for deportation proceedings.

The Edward J. Schwartz federal courthouse building in downtown San Diego. / Photo by Adriana Heldiz

A U.S. citizen appears to have been mistakenly charged with a misdemeanor for illegally entering the United States earlier this month, court documents show.

The charge against Ricardo Hernandez-Contreras was dismissed last week after his attorney presented his birth certificate to the court. Yet even after the case against him was tossed, court officials said they couldn’t guarantee Hernandez-Contreras wouldn’t be handed over to ICE for deportation proceedings.

Hernandez-Contreras was arrested on Nov. 1, roughly two miles east of the Otay Mesa Port of Entry and about 200 yards north of the U.S.-Mexico border, according to the complaint against him. Hernandez-Contreras and two other individuals were found hiding in brush by a Border Patrol agent and a canine, according to the complaint against him.

Strangely, Border Patrol agents said in their account of Hernandez-Contreras’ apprehension that he admitted he was an illegal Mexican citizen, according to the complaint.

“The subjects, including on later identified as the defendant Ricardo Hernandez-Contreras, stated that they were citizens of Mexico without immigration documents that would allow them to legally enter or remain in the United States legally,” the complaint reads.

The complaint also said that record checks on Hernandez-Contreras found he was removed or deported from the United States in September 2014.

Voice of San Diego was not able to immediately reach Hernandez-Contreras. His attorney declined to comment until he could reach him.

Last week, the U.S. attorney’s office moved to dismiss the complaint again Hernandez-Contreras after his attorney, Narciso Delgado-Cruz, provided prosecutors with his birth certificate, according to a transcript of the proceeding. Federal Magistrate Judge Robert Block granted the motion.

Then Delgado-Cruz asked Block to consider another issue for after his client was released: a hold from Immigration and Customs Enforcement, which would mean he would be transferred to ICE upon his release from criminal custody.

“He is a U.S. citizen by birth,” Narciso-Cruz said. “I don’t know whether or not this court could entertain a motion through counsel, whether written or oral to have ICE release this individual upon his release from federal custody.”

Both the court and the U.S. attorney’s office said they had no authority to ensure that ICE did not detain Hernandez-Contreras after his release from criminal custody.

“In this particular case, we’ll make sure the immigration authorities get a copy of the birth certificate,” Assistant U.S. Attorney Michael Lasater told the judge. “And it’s up to them, really.”

“Yeah, and I’m not – I don’t have jurisdiction over what happens in immigration but hopefully they won’t take someone into custody who is a U.S. citizen,” Block said.

The U.S. attorney’s office declined to comment on the case.

This would not be the first time U.S. citizens have been inappropriately caught up in immigration enforcement. The American Civil Liberties Union, the Southern Poverty Law Center and the Los Angeles-based law firm Gibson Dunn & Crutcher recently sued the Monroe County sheriff in Florida of unlawfully arresting and detaining a U.S. citizen because ICE sent the sheriff a request to hold the man for removal from the country.

In September, the Los Angeles Times uncovered that in more than 1,400 cases since 2012, a citizen had ended up in immigration custody and had to prove their citizenship to be released.

Correction: An earlier version of this post misstated the location of Hernandez-Contreras’ arrest. It was about 200 yards from the U.S.-Mexico border.

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