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Choosing Between Federal Prosecution and Deportation

Harry Larson
Tuesday, December 12, 2017, 7:00 AM

The legal and political debate over immigration detainers usually concerns the demands that the federal government makes of local law enforcement.

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The legal and political debate over immigration detainers usually concerns the demands that the federal government makes of local law enforcement. But federal regulations also empower authorized immigration officers to issue I-247 detainer forms to federal agencies with undocumented immigrants in custody to facilitate a transfer to Immigration and Customs Enforcement (ICE). Data compiled by the Transactional Records Access Clearinghouse suggests that in the first half of 2017, immigration officers issued around 14,000 I-247 detainers.

Though ICE has authority under the Immigration and Nationality Act (INA) to civilly detain individuals who lack legal immigration status, that authority can run up against the Bail Reform Act (BRA) and other regulatory schemes when the individuals in question face federal prosecution.

This post details recent attempts by several courts to constrain the reach of the government’s civil immigration powers when it seeks to criminally prosecute removable immigrants.


The INA both extends and cabins federal immigration detention authority. 8 U.S.C. § 1226(c) provides for the detention of individuals who have committed criminal immigration offenses. 8 U.S.C. § 1231 provides for detention after an order of removal is issued but before the order is executed. 8 C.F.R. § 287.7, a regulation promulgated under the INA, authorizes immigration officers to issue detainers to federal or state law enforcement agencies so as to arrange a transfer to immigration custody. The INA also provides for release on bond or parole in certain circumstances. Immigration detention is generally a precursor to deportation.

Separately, 8 U.S.C. § 3142 of the BRA provides for the pre-adjudication release of federal criminal defendants unless no conditions of release can “reasonably assure the[ir] appearance” at trial or they are likely to “endanger the safety of any other person or the community.” When the defendant is neither a citizen nor a lawful permanent resident and is at risk of “flee[ing] or pos[ing] a risk to any other person,” the BRA authorizes a period of “not more than 10 days,” during which the judicial officer may notify an immigration official. If not taken into immigration custody after the 10-day period, the individual is to be “treated in accordance with the other provisions of” the BRA.

Because ICE currently limits the issuance immigration detainers to individuals against whom either an immigration arrest warrant or a removal order has been lodged—individuals whom, in other words, ICE is authorized to detain—federal criminal defendants subject to immigration detainers would likely be subject to immigration arrest, detention, and removal if they weren’t already being held for criminal prosecution. This scenario is especially common when a defendant is charged for an immigration offense, such as illegal reentry. Courts must therefore decide two questions: first, whether such defendants may qualify for release under the BRA notwithstanding the issuance of an immigration detainer against them; and second, whether a criminal defendant released on bail may nonetheless be administratively detained by ICE pending trial.

Release Under the BRA

Courts that deny bail to the subjects of immigration detainers often cite the detainers as at least one factor supporting the determination that no conditions of release will “reasonably assure [the defendant’s] appearance” in further criminal proceedings. Least controversially, as one Kansas federal district court put it, the fact that a defendant is deportable and that ICE has lodged a detainer against him may “weigh[] heavily” in assessing their flight risk. Some courts go further, reasoning that the risk that ICE itself might take custody of the defendant—and then deport him or render him otherwise unavailable—counts as a risk of non-appearance under the BRA.

Other courts emphatically reject this line of reasoning, arguing that while the BRA sets up specific notice requirements for defendants who are not lawful permanent residents, Congress did not identify immigration status as a factor—let alone a dispositive one—in making bail determinations for criminal defendants. Moreover, as one Minnesota federal district court put it as early as 2009, “[t]he risk of nonappearance referenced in [the BRA] has to involve an element of volition,” not simply the fact that one executive branch wishes to “prosecute the defendant,” while another “may want to deport him.”

Ninth and Tenth Circuit panels (along with several district and magistrate judges) have embraced this logic, with the Ninth Circuit holding in United States v. Santos-Flores that once the government has “elect[ed] to deliver the alien to the United States Attorney’s office for prosecution … [it] may not use its discretionary power of removal to trump a defendant’s right to an individualized determination under the” BRA. In November in United States v. Ailon Ailon, the Tenth Circuit made clear that “to the extent any conflict exists” between ICE and federal prosecutors, “it is a matter for the Executive Branch to resolve internally.” The court also noted 8 C.F.R. § 212.2(a), a regulation associated with the INA, which stipulates that “[n]o alien shall depart from the United States … if his departure would be prejudicial to the interests of the United States,” and 8 C.F.R. § 215.3, which specifies that a departure is prejudicial when an alien is a party to “any criminal case.”

But allowing a criminal defendant’s release on bail does not necessarily preclude ICE from arresting and holding that same person in administrative custody. Indeed, while the Ninth Circuit in Santos-Flores seemed concerned about this possibility as a potential frustration of the criminal process, noting that “the district court may craft an appropriate remedy” if the government detained or deported the defendant in advance of trial, the Tenth Circuit in Ailon Ailon actively encouraged it, instructing U.S. marshals to “release” the defendant directly “to ICE custody.”

Limiting ICE Detention for Criminal Defendants

Unlike the Tenth Circuit, federal district courts across several circuits have moved aggressively to ensure that a release on bail actually constitutes a release. In United States v. Trujillo-Alvarez, a defendant subject to an ICE detainer was promptly arrested by ICE and held in administrative custody after his release on bail. After the defendant moved to hold ICE in contempt, the United States argued that it was entirely within ICE’s prerogative to hold Trujillo-Alvarez in administrative detention, because he was subject to a valid removal order. A federal judge in Oregon disagreed, noting that while ICE may have “the ability to take Mr. Alvarez-Trujillo back into administrative custody—for the purpose of deporting him,” it could not simply “disregard the congressionally-mandated provisions of the BRA by keeping a person in detention for the purpose of delivering him to trial when the BRA itself does not authorize such pretrial detention.” In other words, “the Executive Branch has a choice to make. It may take an alien into custody for the purpose of removing or deporting that individual or it may temporarily decline to do so while criminal proceedings are maintained against that person.” While the court declined to hold ICE in contempt, it gave the government one week to decide whether to proceed with administrative removal proceedings or its criminal case, promising to dismiss the latter with prejudice if the government declined to release Trujillo-Alvarez.

Several courts have followed Trujillo-Alvarez’s lead, often with sharp rulings against government attempts to hold in immigration detention individuals who are ordered released on bail. In United States v. Blas, an Alabama magistrate judge not only reached the same result as in Trujillo-Alvarez but also devoted a portion of the opinion to establishing a clear rule for “all future cases.” In any case “involving a violation of” the criminal provisions of the INA regulating reentry, “the United States Attorney’s Office and ICE will be required to inform the court at the start of the detention hearing whether the criminal proceeding will take priority or whether priority will be given to removal and deportation.”

In United States v. Galitsa, a federal judge in the Southern District of New York disparaged the idea that “the Government, like a two-headed monster, can take advantage of both” the INA and the BRA to continue to hold under the former individuals who were ordered released under the latter. Recently, in United States v. Ventura, a court rejected the government’s claim that it was free to hold an individual released on bail in administrative immigration detention so long as removal proceedings advanced in parallel with criminal proceedings. Rather, “the Government cannot and should not have it both ways … [O]nce prosecution is the Government’s chosen course of action, the Executive may not attempt to obviate the bond determination of this Court by enforcing the ICE detainer. Accordingly, the government now must make a choice [between deportation and criminal prosecution]. It cannot do both.”

These opinions generally acknowledge the discretion of the executive branch to detain and remove individuals who might otherwise be charged with federal crimes. In Trujillo-Alvarez, for instance, the court admitted that if ICE had detained the defendant for the purpose of deporting him, it likely had “legal authority to do so,” notwithstanding his release on bail. But these courts have refused to permit the executive to import its immigration powers into the criminal context—or to defer to its claims that it may simultaneously pursue civil and criminal remedies. Rather, the judiciary has pushed the government to choose: deportation under the INA or criminal prosecution—subject to the regular constraints such prosecutions entail.

Harry is a second year student at Harvard Law School, where he is an editor of the Harvard Law Review. He has interned with Akin Gump and with the Mexican American Legal Defense and Educational Fund and previously worked on expert economic testimony at the litigation consulting firm Cornerstone Research. He graduated from Yale College in 2014 with a BA in English and Economics.

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