In many California counties, Juana Reyes would not have gone to jail for refusing to stop selling tamales in front of a Walmart store on Florin Road, or she would have been released in a day or two.
Instead, she spent 13 days in the Sacramento County jail due to an unusual Sheriff's Department policy that detains suspected undocumented immigrants without bail until the federal government either takes custody of them or cuts them loose.
Sacramento County does not allow bail for such immigrants if U.S. Immigration and Customs Enforcement has placed a hold on them for possible deportation. Sacramento County's policy differs from most law enforcement agencies, according to the California State Sheriff's Association.
Yolo and San Joaquin county sheriff's departments say they will hold alleged undocumented immigrants charged with crimes for up to 48 hours on ICE holds, as mandated by federal law. If ICE doesn't take custody of them, Yolo and San Joaquin will then release them on bail.
If ICE had not placed a hold on Reyes, she would have been released on $1,000 bail the day she was arrested, said Sacramento County sheriff's spokesman Jason Ramos.
But she remained in jail until the local charges were dismissed. She then waited another few days before ICE told the county that she should be allowed to post bail and leave.
"If we were to cite and release her, we'd be setting her up for failure to appear if it gets to the point where they deport her, creating a backlog in our court system," Ramos said. "That's the reason we let the local charges be adjudicated first."
Reyes was arrested June 28 and appeared in court on Friday, July 6, when the district attorney dropped the trespassing charges against her.
"After court she was an ICE inmate, and we had zero interest in her once her charges were dismissed," Ramos said.
Because July 6 was a Friday, ICE's 48-hour time clock didn't start until Monday, July 9. Reyes was released the following day, when ICE allowed her to post bail.
Reyes, a 46-year-old single mother from Mexico, was identified as a "deportable alien" by ICE agents during a routine jail screening on the day she was booked on trespassing charges. Her kids Cesar and Monserrat Cuesta, ages 10 and 7 were placed in foster care until she was released from jail on a $1,500 ICE bond, pending her appearance in immigration court next year.
Her stay in the jail cost taxpayers about $100 a day. Her offense: refusing repeated requests by store security and sheriff's deputies to stop selling her chicken, pork and chili cheese tamales in front of the Walmart Supercenter on Florin Road, Ramos said.
"I don't know of a single sheriff's office that places a no bail ICE hold on you for a trespass charge or any misdemeanor," said sheriff's association lobbyist Curtis Hill, the former sheriff of San Benito County.
If an ICE agent hadn't been in the Sacramento County jail interviewing potential illegal immigrants, "she would have been cited and released, then gotten a letter in the mail saying, 'Your charges have been dismissed,' " he said.
Hill, who conducted his own investigation, said Reyes was being stubborn. But instead of arresting her, "the deputy could have just driven her to her apartment, cited and released her right there and warned her if she comes back, she goes to jail next time," Hill said. "She'd never been arrested before but now her fingerprint card's in the system."
ICE's Virginia Kice said a detainer "is not an instruction to local agencies to retain custody indefinitely."
"It's simply a request that they give us 48 hours' advance notice prior to release so we can make an appropriate determination about what to do next."
Reyes is among thousands of undocumented immigrants who the Obama administration said should not be targeted for deportation because they have not committed serious crimes, said her attorney, Julia Vera. Reyes entered the United States illegally 16 years ago, but has no criminal history and was selling tamales to help feed her American-born children because she couldn't find a job.
"Her neighbors and friends know her to be a humble, hardworking and honest woman who does everything she can to protect and provide for her children and help her neighbors when she can," Vera said.
ICE officials are considering granting Reyes prosecutorial discretion, which means they would close her case and she would no longer be in deportation proceedings. It would not, however, grant her legal status.
The Reyes case has drawn attention from backers of a bill by Assemblyman Tom Ammiano, D-San Francisco, that would forbid local officials from holding suspects for ICE unless they've been convicted of serious felonies.
"Because ICE issued a 'hold' request, she was trapped in the Sacramento County jail for nearly two weeks," said Jon Rodney of the California Immigrant Policy Center. "It's ridiculous to hold a nonviolent person with no record in our local jails, just for deportation purposes, especially at a time when there is so much pressure on jail space."
Sheriffs in other counties say they won't keep suspects on ICE holds for more than 48 hours. San Joaquin County allows ICE agents into the jail to screen inmates. But "the moment they post bail, their 48 hours starts," said spokesman Les Garcia, "and if ICE doesn't pick them up, we release them on bail regardless of the charge."
In Yolo County, Sheriff Ed Prieto said Reyes never would have been jailed in the first place because his county needs the beds for more serious offenders. "Arresting her and taking her away from her two kids doesn't benefit anybody," he said, noting that about 71 percent of inmates deported nationally haven't been convicted of violent crimes.
Santa Clara County does not honor ICE's request to place a detainer on any suspected undocumented immigrant unless they're charged with a serious or violent crime, said Sgt. Jose Cardoza. Undocumented suspects held on less serious offenses are treated like any other inmate and ICE isn't ever notified, Cardoza said.
Since 2009, Sacramento County has allowed ICE agents come to the jail daily "to check anyone who's in custody where there's a question of their immigration status," said John McGinness, who was sheriff at the time the policy was instituted.
McGinness said if ICE puts a detainer on somebody, "you don't let them leave." But he said he doesn't understand why Reyes was placed under an ICE hold given the Obama administration's immigration policy focusing on violent criminals.