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Paradox of prosecuting undocumented immigrants highlighted by Kansas case

A U.S. Border Patrol agent handcuffs an undocumented immigrant near the U.S.-Mexico border on April 11, 2013 near Mission, Texas. (Photo by John Moore/Getty Images)

A U.S. Border Patrol agent handcuffs an undocumented immigrant near the U.S.-Mexico border on April 11, 2013 near Mission, Texas. (Photo by John Moore/Getty Images)  (2013 Getty Images)

Federal prosecutors are expected to ask a judge on Friday to deny bond to a Mexican man jailed in Kansas for unlawful re-entry into the U.S., but not because they think he might flee: They fear he'll get deported before facing trial. Again.

Juan López-Morales lost his legal residency status following a 1994 conviction and prison sentence for burglary, though he wasn't deported until an immigration judge issued a removal order in 2009. Since then, he has illegally returned to the U.S. — and been deported — at least five times, according to court documents.

But his most recent deportation, in 2014, came despite prosecutors' efforts to keep him in the U.S. to face trial and, if convicted, a lengthy prison sentence. The 41-year-old is now facing a new charge of illegal re-entry following a July arrest in Texas, and prosecutors hope this time to prevent the case from getting tangled in differing roles within the U.S. Department of Homeland Security.

López-Morales' attorneys convinced a judge to grant him bond in the 2014 case, noting he was accused of a non-violent offense, had lived in the Wichita area for roughly 25 years and had dozens of local relatives, including his wife and two children. But because of his immigration status, López-Morales was transferred into the custody of U.S. Immigration and Customs Enforcement after posting bond.

And, as prosecutors warned, the agency deported him before he could face trial.

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"It doesn't happen often, but it happens from time to time," Assistant U.S. Attorney Brent Anderson said this week. "It is distressing to our office because when a person is deported, it frustrates the ends of justice from our point of view. We can't bring the case to conclusion because the defendant has been removed."

ICE spokesman Shawn Neudauer said if a person is in ICE custody under a deportation order, the agency must carry it out. He said prosecutors have the opportunity to take someone back into custody.

But Anderson said that "creates a vicious circle," because the process brings a defendant back to the federal court that granted bond in the first place.

The U.S. attorney's office in Kansas said in court filings that it was dropping the 2014 case because López-Morales had been deported. But it subsequently filed a new indictment so there would be an active arrest warrant if authorities encountered him again in the U.S.

The U.S. Bail Reform Act requires federal prosecutors to show that a presumably innocent defendant is a flight risk or is dangerous in order to keep that person detained pending trial.

In the 2014 case, López-Morales' attorney, John Henderson, downplayed his client's criminal history and emphasized his family ties to the Wichita area, arguing in court documents: "The greatest testimony to his lack of flight risk is that he persistently comes back to the United States as soon as he is deported."

López-Morales' new public defender, Steve Gradert, declined comment Wednesday because it was an ongoing case.

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