              IN THE SUPREME COURT OF IOWA
                              No. 18–0955

                         Filed October 18, 2019


STATE OF IOWA,

      Appellee,

vs.

GUILLERMO AVALOS VALDEZ,

      Appellant.

      Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.



      The defendant appeals his sentence of incarceration, arguing the

district court erred in declining to order probation. AFFIRMED.



      Scott M. Wadding of Sease & Wadding, Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Patrick Jennings, County Attorney, and Kristine Timmins,

Assistant County Attorney, for appellee.
                                     2

MANSFIELD, Justice.

      This case presents the question whether immigration status may be

considered during sentencing. The defendant in this case is a Mexican

national who pled guilty to and was convicted of a class “C” felony drug

offense. He was placed on an immigration hold for likely deportation. At

sentencing, the defendant sought probation, while the State requested

incarceration. The district court imposed a prison sentence, expressing

the view that it would not be feasible to order probation for someone who

was going to be deported to Mexico. The defendant appeals.

      On appeal, we conclude, like the majority of other jurisdictions, that

immigration status per se is not an appropriate sentencing consideration,

but that immigration status may be taken into account to the extent it

affects an otherwise relevant sentencing factor. We also conclude that on

this record, the district court properly determined that probation would

not be appropriate for someone whose probation would have to be

supervised in Mexico. We therefore affirm the defendant’s conviction and

sentence.

      I. Facts and Procedural History.

      Guillermo Avalos Valdez was born in Mexico in 1981. In 1997, he

entered the United States without legal permission. He settled in Merced,

California.

      On December 24, 2017, Avalos Valdez was stopped on Interstate 29

in Woodbury County for driving eighty-four miles per hour in a seventy

miles-per-hour zone. As two Woodbury County deputies approached the

vehicle, they could smell marijuana coming from it. They removed Avalos

Valdez and a female passenger from the vehicle. A subsequent search

uncovered two hockey-sized duffle bags and two boxes with Christmas-

themed wrapping paper containing a total of 184 pounds of marijuana,
                                       3

mostly divided into individually heat-sealed one-pound bags. A .45 caliber

pistol with a loaded magazine and Grim Reaper handgrips was found

under the front passenger seat. Avalos Valdez had a tattoo showing a Grim

Reaper with a marijuana leaf, and the female passenger also had a Grim

Reaper tattoo. The vehicle was registered to an “Iran Guillermo Avalos

Valdez.”

       Avalos Valdez was charged with possession with intent to deliver a

controlled substance, more than fifty but not more than 100 kilograms of

marijuana, a class “C” felony. See Iowa Code § 124.401(1)(c)(5) (2017). He

was also charged with a drug stamp tax violation, a class “D” felony. See

id. § 453B.12(2). Avalos Valdez waived speedy trial.

       On May 18, 2018, Avalos Valdez entered into a written agreement

with the State to plead guilty to the possession with intent to deliver count,

with the drug stamp tax violation being dismissed and the parties being

free to argue sentence.

       A presentence investigation (PSI) report had been prepared. The

report noted a prior California conviction in 2008 for vandalism.

Avalos Valdez indicated that he had done general labor (although he had

some    back   issues)    and   made   approximately     $12,000      in   2017.

Avalos Valdez told the interviewer that he was a regular marijuana user

for his back issues and described “being on an adventure” when he was

arrested. At the time of sentencing, Avalos Valdez was on a United States

Immigration    and   Customs     Enforcement     (ICE)   hold   for    potential

deportation. The PSI report stated that on the Iowa Risk Revised (IRR) risk

assessment tool, Avalos Valdez “scored in the low category for future

violence and the low category for future victimization.” According to the

PSI report, “The IRR would further indicate the Defendant would be

supervised initially at the low normal level of supervision should he be
                                      4

supervised in the community.” However, the report also noted the quantity

of marijuana involved and recommended that Avalos Valdez receive a term

of incarceration.

      On May 22, the district court held a hearing for the purpose of plea

taking and sentencing. During the guilty plea colloquy, defense counsel

addressed the immigration consequences of Avalos Valdez’s plea and

explained, “[B]ecause this is an aggravated felony and a controlled

substances offense, there would be deportation, mandatory detention, if

he   does   have    any   removal   proceedings.”    The   court   accepted

Avalos Valdez’s guilty plea and, with the consent of the parties, proceeded

to sentencing. The State asked for imprisonment:

            Your Honor, the State would be requesting that the
      defendant be sentenced to an indeterminate term of
      incarceration of ten years, that the minimum fine of $1,000
      plus the 35 percent surcharge be imposed and that that be
      suspended, and the other mandatory minimum requirements.

             The State believes that that penalty is appropriate due
      to the fact that the defendant did have 180 pounds of
      marijuana in his possession at that time, which is a
      significant amount. The defendant also has no significant ties
      to the area as well as the immigration hold which will make it
      difficult for him to complete probation. The State believes that
      the presentence investigation recommendation of the prison
      sentence is the appropriate one in this case, and that’s what
      we would request.

      Defense counsel responded by asking for probation:

             My client is asking that the Court grant him probation
      on this offense. The presentence report indicates that the
      Iowa risk revised assessment that was used indicates he has
      a -- he has a low category for future violence, a low category
      for future victimization, and that the IRR would indicate he
      could be supervised initially on a low/normal level in the
      community.

            I realize he has an immigration hold, but he, essentially,
      only has one prior conviction for vandalism back in 2008; so
      he really doesn’t have a criminal history to speak of at all.
                                     5
              With probation, I realize he’s going to be taken into
      custody by immigration. He has the hold. It’s likely he will
      be deported. I know there are times, at least in federal court,
      where we have made a term of probation “You shall not
      illegally re-enter the United States” so that if he ever comes
      back to the United States he will be in violation of his
      probation and he would be brought back to court.

            He’s requesting that he be given that opportunity to deal
      with his immigration and let them make that determination.
      Otherwise, other than the quantity involved here, if he was
      here as a United States citizen, I think that probation would
      be something that would definitely be a possibility. So we are
      asking that he be treated the same as someone else would and
      let immigration handle the immigration consequences that he
      is aware of.

      The court imposed a prison sentence as requested by the State. It

stated,

            I want to address some of your comments. The
      statement that you think this Court would give a U.S. citizen
      with the same record a suspended sentence is not accurate.
      180 pounds of marijuana is one big deal, and it’s -- he’s a
      danger to the community. And he’s also a flight risk. I don’t
      think probation would be appropriate with pleading to this
      charge given his immigration status. He won’t be available if
      I were to award probation, as I understand it. So I don’t think
      probation is an appropriate sentence here.

             Therefore, the Court finds that the sentence imposed
      will provide for the maximum opportunity for the defendant’s
      rehabilitation, to protect the community from further offenses
      by this defendant and others. I’ve considered the nature of
      the offense committed and the contents of the presentence
      investigation report and the plea agreement.

      Avalos Valdez filed a notice of appeal on May 31. We retained the
appeal.

      II. Standard of Review.

      We review sentences for abuse of discretion.      State v. Roby, 897

N.W.2d 127, 137–38 (Iowa 2017). However, our review is not forgiving of

a denial of a constitutional right. Id. To put it another way, if we disagree

with the trial court’s fact-finding after applying a de novo standard of
                                     6

review, we will rely on the facts as we find them to determine whether the

Iowa Constitution has been violated. Id. at 138.

      III. Mootness.

      We must first deal with a threshold question of mootness.           On

September 17, 2019, the State moved to dismiss Avalos Valdez’s appeal as

moot. Avalos Valdez was paroled on May 16 of this year, having served

approximately seventeen months of his ten-year sentence.            He was

released to ICE and then taken into the custody of the United States

Marshal pending federal prosecution in San Diego, California. The State

maintains that these events render Avalos Valdez’s appeal moot:

      [E]ven if he prevails on appeal and even if he is resentenced to
      a suspended sentence, he will face the same result—
      mandatory immigration detention and impending deportation
      following his federal criminal charge. This Court cannot grant
      any relief that will undo the prison time that the defendant
      has already served. Therefore, a remand for resentencing will
      have no appreciable effect on the defendant’s status.

Avalos Valdez resists the State’s motion. He contends the appeal is not

moot, and even if it is, an exception to the mootness doctrine applies.
      “The key in assessing whether an appeal is moot is determining

whether the opinion would be of force or effect in the underlying

controversy.” Puntenney v. Iowa Utils. Bd., 928 N.W.2d 829, 840 (Iowa

2019) (quoting Perkins v. Bd. of Supervisors, 636 N.W.2d 58, 64 (Iowa

2001)), petition for cert. pending, No. 19–447 (U.S. Sept. 30, 2019).

Avalos Valdez concedes that prevailing on this appeal would not get him

released from federal custody. However, he points out there would be a

difference going forward if he were deemed on state-ordered probation

rather than state-ordered parole. Avalos Valdez contrasts his case with

others where the defendant had completely served his sentence. See, e.g.,

State v. Wilson, 234 N.W.2d 140, 141 (Iowa 1975). We also note that if
                                        7

Avalos Valdez is convicted on the pending federal charge, his federal

sentence could be affected by whether he received a suspended sentence

or (as actually happened) a ten-year sentence on his state drug trafficking

charge. See U.S. Sentencing Guidelines Manual § 4A1.1, at 379–82 (U.S.

Sentencing Comm’n 2018) (adding 3 points to the criminal history

guideline calculation for each prior sentence of imprisonment exceeding

one year and one month but only 1 point for a totally suspended sentence).

      In any event, we agree with Avalos Valdez that the public-

importance exception applies here and warrants our exercise of

jurisdiction.     We discussed the public-importance exception at some

length in Homan v. Branstad, 864 N.W.2d 321, 330–31 (Iowa 2015). There

we said,

      We consider four factors in determining whether we should
      exercise our discretion to decide a moot action under this
      exception:

                (1) the private or public nature of the issue;
                (2) the    desirability   of   an     authoritative
                adjudication to guide public officials in their
                future conduct; (3) the likelihood of the
                recurrence of the issue; and (4) the likelihood the
                issue will recur yet evade appellate review.

Id. at 330 (quoting Maghee v. State, 773 N.W.2d 228, 234 (Iowa 2009)).

      Weighing those factors here, we find the issue both important and

likely to recur. Approximately 50,000 unauthorized immigrants reside in

Iowa, comprising 1.7% of the state’s population.            U.S. Unauthorized

Immigrant Population Estimates by State, 2016, Pew Research Center

(Feb. 5,   2019),      www.pewhispanic.org/interactives/u-s-unauthorized-

immigrants-by-state/ (follow “DATA” hyperlink).             We have already

recognized the importance of giving accurate advice to defendants on the

immigration consequences of guilty pleas. See generally Diaz v. State, 896

N.W.2d 723, 725 (Iowa 2017). Judges, prosecutors, defense counsel, and
                                     8

defendants also need to know whether immigration status can be

considered in sentencing.

      Additionally, this issue has the potential to evade appellate review.

Whether to order probation for an offender who is subject to deportation

is more likely to arise when the offender, like Avalos Valdez, otherwise

faces indeterminate prison sentencing totaling ten years or less. In those

circumstances, as with Avalos Valdez, it is quite possible that the

defendant—even if sentenced to prison—will be paroled to an ICE detainer

before any sentencing appeal can be decided. Accordingly, we deny the

motion to dismiss and will proceed to the merits of this case.

      IV. Merits.

      Avalos Valdez raises a single issue on appeal—whether his sentence

violates the Due Process and Equal Protection Clauses of the Iowa and

United States Constitutions because it was based on his immigration

status. See U.S. Const. amend. XIV; Iowa Const. art. I, §§ 6, 9. Our court

has not previously addressed the extent to which a sentencing court may

take into account a defendant’s immigration status.

      Avalos Valdez and the State cite and discuss the same out-of-state

cases in their briefs, so it behooves us to examine them closely.

      In State v. Zavala-Ramos, the trial court sentenced a drug offender

who had previously been deported and who was on an immigration hold

to prison, even though the sentencing guidelines called for a presumptive

probationary sentence. 840 P.2d 1314, 1315 (Or. Ct. App. 1992). The

defendant appealed the sentence, arguing it was improper for the

sentencing court to rely on “his immigration status and immigration law

violations.”   Id.   The Oregon Court of Appeals took a middle path,

reasoning,
                                      9
             Immigration status per se is not relevant. However,
      circumstances that demonstrate a defendant’s unwillingness
      to conform his conduct to legal requirements, whether or not
      there are criminal consequences, may be. Defendant had
      been illegally in the United States at least twice. The court
      could consider that pattern of conduct in determining whether
      it is likely that a probationary sentence would serve the
      purposes of the guidelines to protect the public and punish
      the offender.

Id. at 1316 (footnote omitted) (citation omitted). The court nonetheless

reversed and remanded for resentencing because the court had not

provided a sufficient explanation of “why the circumstances are so

exceptional that imposition of the presumptive sentence would not

accomplish the purposes of the guidelines.” Id. at 1317 (quoting State v.

Wilson, 826 P.2d 1010, 1012 (Or. Ct. App. 1992)).

      In People v. Cisneros, the California Court of Appeal took a similar

middle path. 100 Cal. Rptr. 2d 784, 785 (Ct. App. 2000). It stated,

             We conclude that the trial court erred in ruling that
      illegal aliens are categorically excluded from participation in
      the deferred judgment program for first-time drug offenders.
      Trial courts are free to consider illegal alien status as a factor
      in determining whether a defendant is a good candidate for
      the deferred judgment program, but illegal alien status is not
      an automatic disqualification.

Id. The court went on,

      An illegal alien may be a poor candidate for probation given
      typically limited ties to the community and the prospect of
      deportation. The same considerations may weigh against
      admitting an illegal alien to the deferred entry of judgment
      program. However, a defendant’s misdemeanor violations of
      the immigration laws in entering the United States without
      inspection and failing to register do not necessarily constitute
      “criminal conduct rendering him or her unsuitable for
      deferred entry of judgment . . . ” in every instance.

Id. at 788 (citation omitted) (quoting Cal. Penal Code § 1000.3).
                                      10

      The District of Columbia Court of Appeals followed the same center

course in Yemson v. United States, 764 A.2d 816, 819–20 (D.C. 2001).

There the court concluded,

            Because even an illegal alien has a right to due process,
      a court imposing sentence in a criminal case may not treat the
      defendant more harshly than any other defendant “solely
      because of [his] nationality or alien status. That obviously
      would be unconstitutional.” This does not mean, however,
      that a sentencing court, in deciding what sentence to impose,
      must close its eyes to the defendant’s status as an illegal alien
      and his history of violating the law, including any law related
      to immigration. Indeed, “[t]he sentencing court . . . must be
      permitted to consider any and all information that reasonably
      might bear on the proper sentence for the particular
      defendant, given the crime committed.”

Id. at 819 (alterations in originals) (first quoting United States v. Gomez,

797 F.2d 417, 419 (7th Cir. 1986); then quoting Wasman v. United States,

468 U.S. 559, 563, 104 S. Ct. 3217, 3220 (1984)).

      Likewise the Nevada Supreme Court.          In Ruvalcaba v. State, it

confronted the following situation:

      We note that the sentencing judge below did not sentence
      Ruvalcaba more harshly based upon ethnicity or nationality,
      or because Ruvalcaba committed the crime in a country
      foreign to him. Nor did the sentencing judge predicate his
      decision on any animus towards illegal aliens. Rather, the
      sentencing judge denied Ruvalcaba’s request for probation
      because, as an illegal alien, Ruvalcaba would likely be
      deported if he received probation and would thus ultimately
      avoid punishment.

143 P.3d 468, 470 (Nev. 2006). Drawing a distinction between a sentence

based on “citizenship” and one based on “the ability to enforce the criminal

laws of [the] state,” the court affirmed the defendant’s sentence. Id. at 471.

The court observed that “a defendant’s ability to comply with the terms of

probation is certainly a legitimate factor for a sentencing judge to consider

in determining whether to grant probation.” Id.
                                     11

      In People v. Hernandez-Clavel, the Colorado Court of Appeals framed

the issue as “whether the circumstances relating to defendant’s status as

an illegal alien subject to deportation were proper considerations in the

sentencing court’s decision to grant or deny probation.” 186 P.3d 96, 97

(Colo. App. 2008). The court answered yes. Id. at 100. It recognized as

legitimate the trial court’s concern that the defendant’s likely deportation

meant that he could not benefit from probation or be available to

participate in probation. Id. The court affirmed the trial court’s denial of

probation, rejecting also the defendant’s contention that his sentence

violated equal protection principles. Id.

      In Trujillo v. State, the Georgia Court of Appeals upheld a trial court’s

decision to deny probation to an unauthorized alien, noting that “the trial

court would have been remiss had it ignored the practical realities

presented by Trujillo’s immigration status and the obstacles that it would

have presented to Trujillo’s ability to comply with the imposed conditions

of probation.”   698 S.E.2d 350, 355 (Ga. Ct. App. 2010).           The court

specifically rejected the defendant’s argument that the sentence violated

his constitutional rights to due process and equal protection under the

law. Id. at 353–54.
      In People v. Cesar, on the other hand, the New York Appellate

Division vacated a sentence because the trial court had denied probation

“solely on the basis of the defendant’s status as an undocumented

immigrant.” 14 N.Y.S.3d 100, 107 (App. Div. 2015). The court reasoned

that this would be a violation of due process and equal protection. Id. at

106. Yet the court acknowledged,

      [C]ourts may appropriately consider a defendant’s
      undocumented immigration status in imposing criminal
      sentences. The decision to impose or not impose a sentence
      of probation may legitimately be affected by factors directly
                                     12
      related to undocumented status. Those factors include, but
      are not necessarily limited to, the likelihood of the defendant’s
      deportation during the probationary period, the defendant’s
      history, if any, of repeated departures from and illegal
      reentries into the United States, the presence or absence of
      family in the United States, the defendant’s employment
      history, and the defendant’s legal employability.

Id.
      Most recently, in State v. Cerritos-Valdez, the Nebraska Supreme

Court wrote a thorough opinion that dissected many of these prior cases.

889 N.W.2d 605, 611–13 (Neb. 2017). In that case, the defendant pled

guilty to possession of a controlled substance and driving under the

influence. Id. at 608. The district court denied the defendant’s request

for probation, commenting, “[I]t’s very difficult, if not impossible, for the

Court to impose probation when the first term of probation is that you

obey all laws; and to obey all laws, you would have to leave this country,

which would then conversely make it impossible for you to be supervised

by probation.” Id. at 609.

      On appeal, the Nebraska Supreme Court affirmed.            Id. at 613.

Following its survey of prior caselaw from other jurisdictions, the court

concluded,

             Based on the foregoing, we agree that a defendant’s
      status as an undocumented immigrant cannot be the sole
      factor on which a court relies when determining whether to
      grant or deny probation; however, a sentencing court need not
      ignore a defendant’s undocumented status. When deciding
      whether to grant probation, a defendant’s undocumented
      status may properly be considered by a sentencing court as
      one of many factors so long as it is either relevant to the
      offense for which sentence is being imposed, relevant to
      consideration of any of the required sentencing factors under
      Nebraska law, or relevant to the defendant’s ability or
      willingness to comply with recommended probation
      conditions.

Id. at 611–12 (footnotes omitted). The court then found the defendant’s

sentence in compliance with these parameters:
                                    13
      Here, the district court expressed concern that due to
      Cerritos-Valdez’ undocumented status, it would be difficult for
      him to comply with the standard terms of probation.
      Generally speaking, this is an appropriate sentencing
      consideration; it was a concern shared by the probation officer
      who completed the PSI, and it was one which was supported
      by the information contained in the PSI.

Id. at 612–13.
      Sifting through these authorities, they appear to point in a single

direction. A defendant’s immigration status, qua immigration status, may

not be the basis for a sentence. However, to the extent immigration status

affects an otherwise relevant sentencing factor, it may be taken into

account.

      Avalos Valdez cites one case to the contrary—State v. Mendoza, 638

N.W.2d 480 (Minn. Ct. App. 2002). In that case, the probation officer

indicated in the PSI that she had been told the defendants, both Mexican

nationals, would be deported once released. Id. at 482. The district court

declined to order probation for them because their immigration status

made probation “impossible and impractical.” Id. The court reversed the

sentence. Without citing or discussing any out-of-state authority, it noted

that deportation is a “collateral” consequence of a guilty plea. Id. at 483.

It then continued,

             This observation compels our conclusion that possible
      deportation because of immigration status is not a proper
      consideration in criminal sentencing. If the district court were
      to consider deportation as a factor in its sentencing decision,
      it would be considering a possible collateral consequence in
      arriving at an appropriate sentence for the defendant. We
      conclude that consideration of a possible collateral
      consequence, which is beyond the control of the district court
      and which may or may not occur, is not a valid consideration
      in deciding whether to impose a presumptive sentence or to
      depart from the guidelines.

Id. at 484.
                                        14

      The logic of Mendoza is open to criticism.           Since Mendoza was

decided, both the United States Supreme Court and our court have

recognized that immigration is not simply an inscrutable maze. There are

circumstances when deportation is more than just a “possible” result of a

criminal conviction; it can be a certainty. Padilla v. Kentucky, 559 U.S.

356, 368–69, 130 S. Ct. 1473, 1483 (2010); Diaz, 896 N.W.2d at 731–32.

To say that probation should be granted because deportation “may or may

not occur” is probably finessing the issue too much.               And to treat

immigration as simply a “collateral” consequence may no longer be

realistic. See Padilla, 559 U.S. at 365–66, 130 S. Ct. at 1481–82; Diaz,

896 N.W.2d at 732. When the Massachusetts Supreme Judicial Court

reversed its prior position on consideration of immigration consequences

during sentencing, it pointed out that:

            Reasoning that immigration consequences are collateral
      to conviction, this court has held that a trial judge should not
      consider the potential immigration consequences in
      fashioning a sentence. This reasoning was undermined in
      Padilla when the Supreme Court declined to accept the view
      that immigration consequences are collateral to conviction.
      Therefore, our precedent that a trial judge cannot factor
      immigration consequences into sentencing is no longer good
      law.

Commonwealth v. Marinho, 981 N.E.2d 648, 660 n.19 (Mass. 2013)

(citations omitted). 1
      In any event, we are persuaded that the principle announced in the

cases other than Mendoza is the correct one. Immigration status per se is

not a relevant sentencing factor, but immigration status may impact an

otherwise relevant sentencing factor and, to that extent, may be


       1Furthermore, as Avalos Valdez admits, the Minnesota Supreme Court has not

adopted Mendoza but has instead expressly left open the extent to which possible
deportation because of immigration status may be considered in sentencing. State v.
Kebaso, 713 N.W.2d 317, 324 n.7 (Minn. 2006) (en banc).
                                     15

considered.   Such a procedure does not violate due process or equal

protection. To the contrary, it complies with Iowa law, which requires the

court to take into account all pertinent information in order to select the

sentencing    option   that   provides    “maximum   opportunity    for   the

rehabilitation of the defendant, and for the protection of the community.”

Iowa Code § 901.5; see also id. § 907.5(1).

      Several other points should be noted. Courts have at times relied

on the effects of a defendant’s immigration status in imposing a more

lenient sentence.   For example, in State v. Silvera, a sentencing panel

imposed a sentence below the presumptive range so the defendant—a

lawful permanent resident who had served in the United States Armed

Forces and received an honorable discharge—would not be deported. 309

P.3d 1277, 1280–81 (Alaska Ct. App. 2013). The State challenged that

sentence (and another in a companion case) as violating equal protection.

The Alaska Court of Appeals disagreed, “[I]t was the harsh collateral

consequences they faced if they were deported, not their status as non-

citizens, that led the three-judge panel to conclude that sentencing the

defendants within the presumptive range would be manifestly unjust in

these cases.” Id. at 1287. The practice approved in Silvera could not occur

if the effects of immigration status could never be considered. Cf. State v.

Sanchez, 346 P.3d 701, 704 (Utah Ct. App. 2015) (holding that the trial

court was not required to consider the defendant’s potential deportation

and impose less than the standard sentence).

      Also, if the ramifications of immigration status could not be

considered in criminal sentencing, it would logically follow they would be

off-limits in other types of proceedings, such as bail setting, child custody

and termination of parental rights. We disagree with this result. See In re

Adoption of C.M., 414 S.W.3d 622, 669 (Mo. Ct. App. 2013) (explaining that
                                     16

the mother’s “immigration status properly played a part” in a termination-

of-parental-rights proceeding); Rico v. Rodriguez, 120 P.3d 812, 818 (Nev.

2005) (“Although we recognize that Rico is entitled to due process and

equal protection, she has simply not demonstrated that the district court’s

consideration of her immigration status violated her constitutional rights

or was a primary factor in the determination of her children’s best

interests.”); State v. Fajardo-Santos, 973 A.2d 933, 939 (N.J. 2009) (“When

bail is set, it is entirely appropriate to consider a defendant’s immigration

status in evaluating the risk of flight or non-appearance.”); In re

Dependency of J.B.S., 863 P.2d 1344, 1350 (Wash. 1993) (en banc)

(“Although not dispositive, the trial court has discretion to consider

[immigration status], insofar as it may affect the consequences of the

placement decision.”).

      Immigration status is not a characteristic that can never be relevant

to government action. For example, in Sanchez v. State, we held it did not

violate the Equal Protection and Due Process Clauses of the Iowa and

United States Constitutions for our state to deny driver’s licenses to

unauthorized aliens. 692 N.W.2d 812, 819–20 (Iowa 2005).

      In order to carry out some legitimate public policies, such as

optimizing the rehabilitation of a criminal offender, it may be necessary to

consider matters such as the offender’s living and job prospects, which

may require consideration of that offender’s immigration status. Ignoring

those factors simply because they are attributable to immigration status

could result in disparate treatment of a defendant because he or she is an

unauthorized alien.

      We now apply these principles to the present case. For that, we

return to the court’s statement of reasons for the sentence it imposed.

Initially, the district court commented on the nature of the crime (involving
                                     17

184 pounds of marijuana) and drew the plausible conclusions that

Avalos Valdez could be considered a “danger to the community” and a

“flight risk.”   The court then stated, “I don’t think probation would be

appropriate with pleading to this charge given his immigration status.”

But the court immediately explained further, “He won’t be available if I

were to award probation, as I understand it. So I don’t think probation is

an appropriate sentence here.”

       Reading the court’s statement in its entirety, we think the court

decided against probation for Avalos Valdez not because he was an

unauthorized alien but because his immigration status meant he “[would

not] be available” to undergo probation, as the court “underst[ood] it,” and

because of the quantity of marijuana involved.        We do not see any

constitutional defect in that ruling.        The record indicated that

Avalos Valdez would be taken into ICE custody and then deported as soon

as he was no longer incarcerated. It is difficult to see how probation could

have been implemented effectively for Avalos Valdez upon his deportation.

Probation requires that the person be “committed to the custody, care, and

supervision” of “the judicial district department of correctional services.”

Iowa Code § 907.8(2).        How would that supervision occur once

Avalos Valdez had been removed to Mexico?            And how would the

conditions of probation be enforced? Ordinarily, violations of probation

are enforced as provided in chapter 908. See id. § 907.3(2)(b). This starts

with an arrest and an initial appearance before a magistrate.       See id.

§§ 908.1, .2, .11.    Notably, there is an “Interstate Compact for Adult

Offender Supervision” in the Iowa Code, but no international compact. See

id. § 907B.1.

      We do not foreclose the possibility that in some future case a record

could be developed showing that probation would be workable and proper
                                   18

for a foreign national being deported to his or her home country.

Avalos Valdez did not explain below, and does not explain in his briefing

here, how such a probation could be implemented for him. Instead, his

argument is largely abstract and academic. Accordingly, on this record we

find no error.

      V. Conclusion.

      For the foregoing reasons, we affirm Avalos Valdez’s conviction and

sentence.

      AFFIRMED.
