Federal agents arrested a sex offender who was in the country illegally Monday after they say the Orange County jail released him despite an immigration detainer.
The Orange County Sheriff’s Office responded Wednesday that U.S. Immigration and Customs Enforcement could have picked up Udiel Aguilar-Castellanos anytime after his Sept. 8, 2017, arrest. An attempt to contact ICE after his conviction was unsuccessful, the Sheriff’s Office said.
Aguilar-Castellanos, 43, of Carrboro, pleaded guilty June 27 to two counts of sexual battery involving an 11-year-old child and was required to register as a sex offender. Sexual battery is a misdemeanor defined as sexual contact by force or against another person’s will, or against a person who is mentally disabled or incapacitated or physically helpless.
Aguilar-Castellanos also was convicted of driving while impaired in Durham County in 2014, ICE spokesman Bryan Cox said.
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In a news release, Cox said Aguilar-Castellanos had been under a federal immigration judge’s removal order since January 2015. An immigration detainer also was issued to the Orange County Sheriff’s Office in September 2017 after his initial arrest, Cox said.
A detainer is a request to local law enforcement to hold someone for up to 48 business hours after the time he or she would normally be released from custody, such as by posting bail.
Orange County court records show Aguilar-Castellanos originally was charged with felony indecent liberties with a child and felony second-degree kidnapping. An agreement with prosecutors allowed him to plead guilty to the lesser charge and be released immediately, because he had served 293 days in jail awaiting trial, records show.
The maximum sentence he could have received for the sexual battery charges was 150 days.
Cox said the Sheriff’s Office did not keep ICE abreast of changes in Aguilar-Castellanos’ status or notify the agency when he was released. He triggered an ICE alert when he was listed in the sex offender registry on July 11.
A Raleigh-based ICE team arrested him. He is being held in the Stewart Detention Center in Lumpkin, Georgia, while awaiting his deportation to Mexico.
ICE agents also arrested four others who were in the Collins Crossing apartment with Aguilar-Castellanos — and who were living in the country illegally — according to the Spanish-language newspaper Que Pasa.
It is not the first time Orange County did not honor an ICE detainer for a registered sex offender, Cox said. The county also released a Guatemalan national convicted of sexual battery on a girl in May, he said, declining to name the person because of “ICE privacy rules.”
Monday’s arrest “demonstrates the clear threat to local public safety created when law enforcement agencies do not cooperate with ICE and instead choose to release serious criminal offenders back into the community,” Cox said.
Jennifer Galassi, legal adviser to the sheriff, said the man released in May — Jonathan Escobedo, 20, of Carrboro — was arrested in Georgia in November and extradited to Orange County on a second-degree forcible rape charge. Escobedo remained in the jail until he pleaded guilty to sexual battery on May 31, she said. He registered as a sex offender on June 5.
ICE issued a detainer for Escobedo but did not come to Orange County to pick him up, Galassi said. She also noted that ICE had Aguilar-Castellanos in custody following his Durham arrest in 2014 but did not deport him.
Orange County Sheriff Charles Blackwood has said his department does not honor immigration detainers. While an automatic notice is sent to ICE when someone is arrested and fingerprinted, immigrants with a detainment notice can be released if they bond out of jail.
Chapel Hill and Carrboro officers also do not make immigration status a priority.
Durham County Sheriff Mike Andrews has said his department honors detainer requests, while Clarence Birkhead, who defeated him in the Democratic primary, has said he will not.
In its response to ICE, the Orange County Sheriff’s Office said the jail released Aguilar Castellanos on June 27 because he already had served the required time for his crimes.
Officials also noted that Aguilar Castellanos was held in the jail for more than the 48 hours normally requested by an ICE detainer.
“Aguilar spent close to 300 days in custody awaiting resolution of his charges,” the release stated. “At any point during that time, Immigration and Customs Enforcement was able to assume custody of Mr. Aguilar; however, that option was not exercised.”
Sheriff’s Office Maj. Randy Hawkins also contacted the Department of Homeland Security at the phone number provided in the detainer, the release stated, but he did not get a response.
“Neither an immigration detainer or an administrative warrant is issued by a judge or judicial officer, and [those documents] subsequently lack the probable cause necessary to hold someone in custody,” the statement said. “Doing otherwise is unconstitutional and in violation of an individual’s Fourth Amendment rights, which would subject the Sheriff and the County to civil liability.”
ICE asked Orange County to let them know before releasing Aguilar-Castellanos from custody, Cox said, so it’s “simply not accurate” for them to say they attempted to contact ICE prior to his release or in the two weeks after his conviction.
The statement from the Sheriff’s Office shows that is true, he said.
“For sake of argument, assuming they did place one phone call as they state (which we’re accepting for sake of argument alone),” Cox said by email, “the county concedes it made no real attempt to inform federal authorities that it planned to release, and then did release, a clear threat to public safety that it knew this agency sought to take into custody.”
ICE’s Atlanta field office region, which includes Georgia and North and South Carolina, reported 13,551 arrests in 2017, up from 8,886 in 2016 and 9,088 in 2015, Cox has said.
Roughly 90 percent of the 2015 detainees had criminal convictions, compared with 88 percent who had criminal convictions in 2016 and 67 percent in 2017, he said.
Nationwide, 92 percent of the 143,470 people that ICE arrested in 2017 either had a criminal conviction, a pending criminal charge or were subject to a federal immigration judge’s removal order, he said. Roughly 74 percent had been convicted of a crime.
That was down from 2016, when 86 percent of the 110,104 people arrested had criminal convictions, he said, and from 2015, when 85 percent of the 119,772 people arrested had criminal convictions.
“Nearly 90 percent of all foreign nationals taken into ICE custody this year were targeted following their criminal arrest,” said Sean Gallagher, director of ICE’s Enforcement and Removal Operations Atlanta Field Office. “Despite efforts by certain groups to misrepresent this reality, the fact is ICE continues to focus its enforcement efforts toward criminals and public safety threats. When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders onto the streets it undermines ICE’s ability to protect public safety.”