In an odd reversal of roles, prosecutors are seeking to keep an illegal immigrant in custody in Los Angeles as his defense lawyer seeks to have him deported.
At the center of the legal controversy is Wesley Wheaton, a Canadian citizen paroled after serving nine years in prison in California for sexual assault on a child.
The Los Angeles County district attorney's office does not want Wheaton freed, either in the United States or anywhere else. It contends he is a violent sexual predator. Prosecutors want him kept securely in a state hospital.
Three other illegal immigrants -- from Mexico and Guatemala -- are also in jail as lawyers debate their status. Like Wheaton, each was convicted of sex crimes, served his prison term, was paroled and on the verge of release when prosecutors intervened.
"It's ironic -- we're arguing for the deportation of our clients
One of the men, Juan Cordero, even had been released into the custody of immigration officials and a judge had ordered him deported when Los Angeles prosecutors got him transferred back to county jail.
In Wheaton's case, federal immigration officials have issued a warrant for his arrest because he is illegally in the United States. Canadian consular officials sent a letter this spring saying that the government is aware of Wheaton's status as a sex offender and that it "has no objection" to accepting him back, as long as he enrolls in a rehabilitation program.
California's Sexually Violent Predator Act, which took effect in 1996, allows judges or juries to commit repeat sex offenders to state hospitals after they finish serving their prison sentences.
The process is twofold. After being paroled, an offender is transferred to a county jail, where he is arraigned and then participates in a hearing to determine if there is probable cause to believe he may commit new sexually violent crimes. If probable cause is found, the offender undergoes a full trial to determine whether he should be committed to a hospital for two years.
Wheaton, who has previous rape convictions, is currently in Los Angeles County Jail awaiting such a trial. But his attorney asked a judge to transfer him to federal custody for a deportation hearing. Love said California taxpayers should not have to foot the bill for Wheaton's mental health treatment here, where resources are already tight.
"I don't see what interest [California] has in paying for his room and board rather than having him deported," said Wheaton's lawyer, Deputy Public Defender John Love. "If he's that dangerous, then why not deport him?"
State law requires that illegal immigrants who have been convicted of crimes be deported, defense attorneys said, and prosecutors are violating that law by preventing them from going through deportation proceedings.
Prosecutors argue that Wheaton and others in a similar position have no right to be sent home, and that his deportation could endanger public safety. They also maintain that deportation hearings are not free.
"Who pays if they decide to come back?" said Deputy Dist. Atty. Rebecca Madrid. "Who pays on the other side of the border if they go and victimize someone in their home country?"
Madrid wrote in court papers that there is no guarantee that Wheaton, 39, will be deported even if he is released to federal custody.
Late last month, Los Angeles Superior Court Judge Richard E. Rico denied Love's request to transfer his client to federal custody, ruling that he is deportable but that immigration officials are not "actively seeking" deportation.
Rico said during a hearing that the decision on Wheaton should be left up to federal immigration officials.
"If they want him, they can come and get him; and if at that point the state of California refuses to turn him over ... maybe then you have something to talk about," the judge said.
The judge also denied similar petitions from the three other illegal immigrants. Defense attorneys are considering an appeal.