El Paso Attorney: Sheriff's Office holding immigrant in custody illegally

Osvaldo Cruz was arrested in November 2016

The El Paso County Sheriff's Office and the Public Defender's Office are caught in a battle over an illegal immigrant detained by ICE. People from both offices were in the courtroom on Thursday, arguing about whether holding an inmate after he was found not guilty on the state level is legal.

Osvaldo Cruz was arrested in November 2016 and has been in jail ever since. On Wednesday, an El Paso County judge and jury ruled he was not guilty of assault causing bodily to a family member. But even though he's technically innocent, the Sheriff's Office still kept him in custody at the jail.

"In this case, I do think maybe we could have been a little bit quicker in notifying ICE," said Sheriff Richard Wiles. "But once we did make the notification, they were pretty responsive, and they usually are very responsive. And many times they pick up these containers at the same time they would have been released otherwise."

The Public Defender's Office argues that since Osvaldo Cruz is innocent, he should be a free man already. An emergency hearing was called Thursday because, according to the Public Defender's Office, the sheriff has no legal authority to hold Cruz past the release order from the state charge. The judge denied that in court Thursday.

A spokesperson from the Public Defender's Office told the judge, "Mr. Cruz is still sitting here in his prison jumpsuit ... shackled 48 hours after his acquittal and this court ordered him released."

In November 2016, The Department of Homeland Security initiated an investigation that concluded Osvaldo Cruz was in America illegally.

The Public Defender's Office told the judge, "This court should look at why they are holding him now, not whether he is here illegally."

"This is really about public safety. I've said this all along. On average, we hold 1,600 state prisoners. On average, ICE has 53 detainers. Vast majority of those are serious offenders. This individual was in jail accused of a family violence assault. There was probable cause and the judge found probable cause. He did go to court and he was acquitted. We don't know what ICE knows about his past or background, or what other issues he's had with ICE, but they wanted him held and we will comply with those detainers."

In 2014, Cruz was deported. ICE picked him up and came back with a judgment for illegal re-entry into the United States. He was booked for reentry and served his time.

"We do honor ICE holds. He had an ICE detainer and we notified ICE and we were waiting for them to pick him up," Sheriff Wiles said.

The ICE detainer is from back in November, but ICE has 48 hours to pick him up after the not guilty verdict. The Public Defender's Office side argues that 48 hours has passed and ICE should let him go because there's no probable cause to hold him on the state level.

"It wasn't anywhere near the 48 hours," Sheriff Wiles said.

The judge told the court, "This is a 'Catch-22.' I don't know why the Sheriff's Office is holding him, but at the same time, he is here illegally and I couldn't order his release and have him hit the streets."

The ICE detainer will expire at 9:00 Friday morning. If ICE hasn't picked Cruz up by then, the Sheriff's Office will have to release him in El Paso.

"I believe he's already been picked up," Sheriff Wiles said.

The judge ruled the ICE detainer is still valid. Sheriff Wiles said the fact that this was even in El Paso Court is inappropriate.

"I do have concerns about them representing this individual on a federal immigration detainer," Sheriff Wiles said. "Now, remember that the Public Defender's Office is paid for with local county taxpayers' money. They were appointed to represent him on the state charge of family violence. When they finished, and he was acquitted, their job ended. And what they tried to do was to get into state court and continue representing him on local county taxpayer money to release an immigration hold from the federal government. I don't think that is an appropriate use of the local taxpayer money. I think if this individual has immigration problems he needs to get an attorney to address that. Or if the federal government the points attorneys for that, they need to do that. It's probably something that may be better handled in federal court. But I certainly don't think that we should be tied up in state court with public defenders getting paid from local taxpayers' money to handle a federal immigration problem. I do not think that's appropriate and not a wise use of our local taxpayers' dollars."

The Public Defender's Office told CBS4 it has no comment right now. The chief said he would send CBS4 a written statement on Friday.

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