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New Ruling in Deportation of Inmates

The Michigan Court of Appeals recently decided a case which clearly explains the status of Michigan law related to the deportation option for citizens of foreign countries who are serving prison sentences.

In Chico-Polo v. Department of Corrections, the court clarified a statute applicable to prisoners whom received orders of deportation. Plaintiff requested mandamus for declaratory relief compelling the DOC to parole and release him to the U.S. Immigration and Customs Enforcement (ICE) for deportation under MCL 791.234b. Mandamus is a court proceeding in which the Plaintiff is attempting to get a court to order a government official to perform a clear legal duty.

In this case, Plaintiff was convicted of delivery/manufacture of a controlled substance over 650 grams and was sentenced to life imprisonment in 1998. Additionally, plaintiff is not an American citizen and was subject to a reissued order of deportation in 2003. After being sentenced to life in prison, he attempted to get the Michigan Department of Corrections to release him ICE for deportation. He first exhausted his administrative remedies by filing Step I, Step II and Step III grievances, along with two requests for declarative rulings from the department.

The statute in question authorizes the parole board to release prisoners meeting certain requirements to ICE for deportation. Generally, deportation is possible once an inmate has served half of his original court imposed minimum sentence.

However, the prisoners must meet all of the following conditions:

  • (1) A final order of deportation was issued against the prisoner;
  • (2) The prisoner served at least half the minimum sentence imposed by the court; and
  • (3) The prisoner was not serving a sentence for:
  • (a) first or second degree murder, or
  • (b) criminal sexual conduct in the 1st, 2d, or 3rd degree, or
  • (c) convicted of multiple felonies under Michigan’s Habitual Offender statute.

Chico-Polo’s main argument was that 20 years was his statutory minimum because by then he would be eligible for parole despite serving a life sentence. However, while the trial court stated that nothing precluded the application of the statute, it nevertheless denied his request for relief citing he must serve the full 20 years before being considered for parole and deportation. On appeal, the court focused on the language of the statute, stating the prisoner must have “served at least ½ of the minimum sentence imposed by the court.” (Emphasis added.) The court said that the Legislature effectively excluded prisoners serving a life sentence by requiring that the minimum sentence be imposed by the court. This is because parole dates are fixed by statute and not imposed by the court. Furthermore, prisoners serving a life term never will have a minimum sentence imposed by the court. Therefore, the court concluded that the plain language of the statute excludes prisoners serving life sentences.

At the time of this posting, this ruling has not been challenged in the Michigan Supreme Court. As with most appellate issues, the case points to the need for trial counsel to consider and understand the collateral consequences of convictions, especially when working with illegal or legal aliens facing criminal charges. We routinely advise our clients to work closely with their criminal defense attorney and with a knowledgeable immigration law attorney before making decisions in their case. For assistance with parole hearings or appeals at the state or federal level, our attorneys are ready to provide assistance. The Kronzek Firm PLC, provides aggressive legal representation in every county in Michigan’s Lower Peninsula.
I am available to help evaluate your case, as are the other attorneys in my firm.

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