SIMON, District Judge.
This case requires the Court to reconcile the Bail Reform Act of 1984 ("BRA"), as amended, 18 U.S.C. § 3141, et seq., with the Immigration and Nationality Act of 1965 ("INA"), 8 U.S.C. § 1101, et seq. A reconciliation is necessary because a tension has emerged in the application of these two laws by two separate departments within the Executive Branch, the U.S. Department of Justice and the U.S. Department of Homeland Security.
The Office of the U.S. Attorney, which is part of the U.S. Department of Justice, is the government's primary agency responsible for the prosecution of federal offenses.
When an alien who has no lawful right to be in the United States is found in this country, ICE may remove and deport that person under the authority of the INA. Alternatively, if such an alien is believed to have committed a federal offense, including illegal reentry, ICE may choose to postpone the removal and deportation of that person while the U.S. Attorney's Office brings a criminal prosecution.
When the Executive Branch decides that it will defer removal and deportation in favor of first proceeding with federal criminal prosecution, then all applicable laws governing such prosecutions must be followed, including the BRA. In such cases, if a judicial officer
In this case, the Defendant is alleged to be an alien and citizen of Mexico with no lawful right to be in the United States. He has been charged with the crime of illegal reentry. He also has longstanding ties to and connections with the local community. He has lived with his wife in the local area for more than 15 years, and they have three minor children who are all U.S. citizens. He also has a history of stable employment in the area and is not accused of a crime of violence. For these reasons, a United States Magistrate Judge determined under the BRA that the Defendant does not present a risk of flight or any danger to any person or to the community if released while awaiting his upcoming trial. Under the BRA, the Magistrate Judge ordered that the Defendant be released pending trial, subject only to those specific conditions imposed by the Magistrate Judge. If the Executive Branch chooses not to release the Defendant and instead decides to abandon criminal prosecution of the pending charge and proceed directly with Defendant's removal and deportation, the law allows the Executive Branch to do that. If, however, the Defendant is not released pending trial as directed by the Magistrate Judge pursuant to the BRA, the pending criminal prosecution of the Defendant may not go forward. To hold otherwise would deprive the Defendant of his statutory right to pretrial release under the Bail Reform Act and possibly even deprive the Defendant of his Fifth Amendment and Sixth Amendment rights to due process and effective assistance of counsel, respectively.
As explained more fully below, the Executive Branch will be provided with a reasonable, albeit limited, time in which to make this decision. The Executive Branch has one calendar week from the date of this Opinion and Order to return the Defendant to the District of Oregon and release him subject to the conditions previously determined by the Magistrate Judge. If that does not occur, the criminal charge now pending against the Defendant will be dismissed with prejudice.
Enrique Alvarez-Trujillo
While in his twenties, Mr. Alvarez-Trujillo had some problems with the criminal law. He was convicted of a drug trafficking offense in California in 1989. On September 17, 1993, he was deported from the United States as an alien and citizen of Mexico pursuant to an Order of Deportation.
On August 8, 2012, Mr. Alvarez-Trujillo was arrested in the Portland area for driving with a suspended driver license.
Also on August 27, 2012, an ICE Deportation Officer, following prosecution guidelines developed by the U.S. Attorney's Office, presented the case against Mr. Alvarez-Trujillo to the U.S. Attorney's Office for criminal prosecution. On September 4, that same ICE Deportation Officer caused an Immigration Detainer — Notice of Action (an "ICE detainer") to be lodged against Mr. Alvarez-Trujillo. Under this ICE detainer, the U.S. Department of Homeland Security informed the U.S. Marshals Service in Portland that ICE had "[o]btained an order of deportation or removal from the United States" for Mr. Alvarez-Trujillo. The ICE Deportation Officer explained that such an immigration detainer is filed in every case submitted to the U.S. Attorney's Office for prosecution "[i]n order to ensure that the alien returns to ICE custody at the end of their proceedings...." Tr. 42.
An indictment against Mr. Alvarez-Trujillo was returned by the grand jury in the District of Oregon on September 5, 2012, and was filed with the District Court on September 6. Doc. 1. The indictment charges one count of illegal reentry in violation of 8 U.S.C. § 1326(a). Id. On September 7, ICE transported Mr. Alvarez-Trujillo to the U.S. District Court in Portland and turned him over to the U.S. Marshals Service. Later that day, Mr. Alvarez-Trujillo was brought before United States Magistrate Judge Paul Papak for arraignment on the indictment. Mr. Alvarez-Trujillo entered a plea of not guilty, and the court set a trial date of
On September 11, 2012, Mr. Alvarez-Trujillo appeared before United States Magistrate Judge John Acosta for a detention/release hearing. The ICE Deportation Officer, serving as the government's case agent, sat at counsel table next to the Assistant United States Attorney. At the conclusion of the detention/release hearing, Judge Acosta stated, among other things, that:
Doc. 14-1, at Ex. A, p. 2. Judge Acosta then signed an Order Setting Conditions of Release, Doc. 10, which included as conditions of pretrial release that Mr. Alvarez-Trujillo report as directed by the U.S. Pretrial Services Office and that he limit his travel to Multnomah County, Washington County, and Clackamas County, Oregon, unless he receives prior approval from U.S. Pretrial Services. The government, through its Assistant United States Attorney, moved Judge Acosta to stay the execution of his order pending review. Judge Acosta denied that motion. Doc. 14-1, at Ex. A, p. 3. The government did not seek review by an Article III judge of the release order issued by Judge Acosta or otherwise appeal Judge Acosta's decision.
On September 12, 2012, ICE agents took Mr. Alvarez-Trujillo into custody under the previously lodged ICE detainer. ICE then removed Mr. Alvarez-Trujillo from the District of Oregon and transported him to the ICE Northwest Regional Immigration Detention Center in Tacoma, Washington. An Assistant Field Office Director with ICE Enforcement and Removal Operations testified that ICE has the discretion whether to execute on such a detainer. Tr. 66.
On September 24, 2012, Mr. Alvarez-Trujillo moved for an order to show cause why ICE should not be found in contempt of court; Mr. Alvarez-Trujillo also moved for certification of facts to the district court by the magistrate judge and for other relief as appropriate. Doc. 13. This Court set a hearing on Defendant's motion for October 10, 2012. On September 28, 2012, Mr. Alvarez-Trujillo moved for a stay of his removal proceeding and for an order directing ICE to transport him to the District of Oregon to attend the hearing set for October 10, 2012. Doc. 17. On
On October 10, 2012, this Court held a hearing on Defendant's motions. The Court had not yet ruled on Defendant's motion for an order directing ICE to transport Mr. Alvarez-Trujillo back to the District of Oregon for purposes of attending the October 10th hearing, and he was not present during that hearing. The two witnesses from ICE who testified during the hearing were the ICE Deportation Officer and the Assistant Field Office Director with ICE Enforcement and Removal Operations, referred to above. Doc. 22. In addition, several exhibits were received. Id. At the conclusion of the hearing, the Court requested supplemental briefing, which was received on October 17 and 18, 2012.
The Eighth Amendment to the U.S. Constitution states, in relevant part: "Excessive bail shall not be required...." In enacting the Bail Reform Act of 1966, Congress declared:
Pub. L. 89-465 (emphasis added). In 1984, the Bail Reform Act was again revised, and it has since been amended even further. But these underlying principles, tracing their roots back to 1791 and beyond, still guide the law.
Under the BRA, Congress has determined that any person charged with an offense under the federal criminal laws shall be released pending trial: (a) on personal recognizance; (b) upon execution of an unsecured appearance bond; or (c) on a condition or combination of conditions, unless a "judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e)(1); see also 18 U.S.C. § 3142(a), (b). See generally United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (upholding Bail Reform Act of 1984 and noting that it "authorizes the detention prior to trial of arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel"); United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir.2007) (the Bail Reform Act requires a court to order the pretrial release of a defendant on personal recognizance or an unsecured appearance bond "unless the [court] determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community") (quoting 18 U.S.C. § 3142(b)).
The government does not argue that Mr. Alvarez-Trujillo presents any danger to the safety of any other person or to the community. In addition, although the existence of an ICE detainer may be considered as a factor in assessing the risk that a particular defendant will flee, United States v. Chavez-Rivas, 536 F.Supp.2d 962, 964 n. 3 (E.D.Wis.2008), Judge Acosta determined that based on Mr. Alvarez-Trujillo's longstanding ties to the community and other related factors, he did not pose a risk of voluntary flight pending trial if released on the condition that he be subject to supervision by U.S. Pretrial Services in the District of Oregon. As stated
In promulgating the BRA, "Congress chose not to exclude deportable aliens from consideration for release or detention in criminal proceedings." United States v. Adomako, 150 F.Supp.2d 1302, 1304 (M.D.Fla.2001). In fact, the BRA expressly refers to persons who are not citizens of the United States in only one portion of the BRA. Section 3142(d) provides, in relevant part, that if the judicial officer determines that a person is not a citizen of the United States and "such person may flee or pose a danger to any other person or the community," then the judicial officer shall order the temporary detention of such person in order for the attorney for the government to notify the "the appropriate official of the Immigration and Naturalization Service." 18 U.S.C. § 3142(d).
There is nothing else in the BRA that places any special or additional conditions on persons who are not citizens or who are awaiting trial on charges of illegal reentry. In fact, 18 U.S.C. § 3142(g) expressly lists the factors that a court should consider when determining whether a particular defendant should be released under pretrial supervision or confined pending trial, and alien status is not a listed factor. Thus, persons who are not citizens must be treated under the BRA like all other persons charged with an offense, which is precisely what Judge Acosta did.
The Immigration and Nationality Act of 1965, as amended, 8 U.S.C. § 1101, et seq. ("INA"), contains the basic body of immigration law in the United States. Among other things, the INA charges the U.S. Secretary of Homeland Security with "the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, [or] Attorney General,...." 8 U.S.C. § 1103(a)(1). Section 241 of the INA also expressly provides for the detention and removal of aliens who are ordered removed. 8 U.S.C. § 1231.
When an alien is subject to a removal order, the INA provides that the Executive Branch "shall remove the alien from the United States within a period of 90 days." 8 U.S.C. § 1231(a)(1)(A). This is referred to as the "removal period." Id. In this case, however, the 90-day removal period has not yet commenced.
The removal period only begins to run on the latest of the following:
8 U.S.C. § 1231(a)(1)(B) (emphasis added). Although the statutory phrase "released from detention or confinement" is not defined, in the context of the entirety of Section 1231 the most reasonable interpretation of that phrase is that it refers to release from incarceration pursuant to a final judgment of conviction as entered by a court of competent jurisdiction. See, e.g., 8 U.S.C. § 1231(a)(4)(A) ("Except as provided in section 259(a) of title 42 and paragraph (2), the Attorney General [now, the Secretary of Homeland Security] may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment. Parole, [post-conviction] supervised release, probation, or possibility
In addition, a person who has been released subject to conditions of pretrial supervision is still "confined" because they are subject to restraints not shared by the public generally that significantly confine and restrain their freedom. Cf. Hensley v. Mun. Ct., 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (holding that a person is in "custody" for purposes of the habeas corpus statute when the person is subject to restraints "not shared by the public generally"); see also United States v. Castro-Inzunza, No. 12-30205, Dkt. 9, 2012 WL 6622075 (Order) (9th Cir. July 23, 2012) (citing Hensley in support of the same proposition in the context of the INA).
Thus, the 90-day removal period has not yet commenced. Accordingly, there is no legal requirement, or even any practical necessity, that ICE detain Mr. Alvarez-Trujillo in order to remove and deport him before the pending criminal proceedings can be concluded.
Moreover, even if the 90-day removal period had begun, there is still no legal requirement that ICE detain Mr. Alvarez-Trujillo. The INA provides:
8 U.S.C. § 1231(a)(2). Mr. Alvarez-Trujillo is not accused of committing any of these specified crimes; the only charge that is pending against him is for illegal reentry. Thus, he is not among the category of aliens who "[u]nder no circumstance" may be released, even after the 90-day removal period begins.
The INA also provides:
8 U.S.C. § 1231(a)(5). Under the statutory authority of 8 U.S.C. § 1103(a)(3), the Executive Branch has issued certain regulations, including one that creates what is called an "ICE detainer." According to this regulation:
8 C.F.R. § 287.7(a) (emphasis added). As expressly stated in this regulation, the purpose of an ICE detainer is for "arresting and removing the alien." Thus, if the Executive Branch intends to exercise its ICE detainer for the purpose of removing and deporting Mr. Alvarez-Trujillo, it appears that it may well have the legal authority to do so. ICE does not, however, have the authority to detain Mr. Alvarez-Trujillo for the purpose of avoiding the pretrial release provisions of the BRA.
The interplay between the BRA and the INA has caused both confusion and tension. In numerous cases throughout the United States, the government has argued for the retention of persons charged with illegal reentry who are the subject of an ICE detainer. In those cases, the government has argued that the existence of the ICE detainer and the possibility that the person may be removed or deported by ICE before trial is sufficient under the BRA to satisfy the government's burden of showing that there are no conditions that will reasonably assure the appearance of the defendant at trial. In addition, in the present case, the government argues that there has been no violation of the BRA because Mr. Alvarez-Trujillo is being held by ICE and not at the direction of the U.S. Attorney's Office. Both arguments are without merit.
The government's first argument has been rejected by many courts. In United States v. Barrera-Omana, 638 F.Supp.2d 1108, 1111 (D.Minn.2009), District Judge James M. Rosenbaum explained,
Id. (ellipses in original). As interpreted by Judge Rosenbaum, "[t]he risk of nonappearance" must involve "an element of [the defendant's own] volition. Id.
Similarly, in United States v. Montoya-Vasquez, No. 4:08-CR-3174, 2009 WL 103596 (D.Neb. Jan. 13, 2009), the court stated:
Montoya-Vasquez, 2009 WL 103596, at *5; see also Rembao-Renteria, 2007 WL 2908137, at *3 ("the certainty of deportation does not translate into certainty of flight").
In United States v. Marinez-Patino, No. 11-CR-64, 2011 WL 902466 (N.D.Ill. Mar. 14, 2011), the court determined that the defendant qualified for release under pretrial supervision notwithstanding that, before turning the defendant over to the United States Attorney for prosecution, ICE administratively reinstated a previously-issued removal order against the defendant. The court rejected the government's argument that the ICE detainer should preclude the defendant's release because ICE could deport the defendant before trial. According to the magistrate judge in that case:
Marinez-Patino, 2011 WL 902466, at *7. The same analysis applies in the case of Mr. Alvarez-Trujillo.
The issue of whether a defendant's anticipated deportation by ICE under a reinstated removal order on its own justified detention under the BRA was recently presented before the Ninth Circuit in United States v. Castro-Inzunza. In an unpublished Order, the Ninth Court held that a reinstated removal order did not, on its own, justify detention under the BRA. In that per curiam Order, the panel wrote:
Castro-Inzunza, No. 12-30205, Dkt. 9 (9th Cir. July 23, 2012), at *2-3.
The government also argues in this case that "[t]he Ninth Circuit [in Castro-Inzunza] properly concluded that [the ICE detainer] did not [by itself justify detention under the BRA], but the court of appeals said nothing about ICE's ability to take the defendant back into administrative custody." Govt.'s Am. Supplemental Mem. of Law, at 8 (Doc. 24). The government may be correct that ICE retains the ability to take Mr. Alvarez-Trujillo back into administrative custody — for the purpose of deporting him — but nothing permits ICE (or any other part of the Executive Branch) to 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.
Two other regulations issued under the authority of the INA are relevant here. The first provides: "No alien shall depart, or attempt to depart, from the United States if his departure would be prejudicial to the interests of the United States under the provisions of § 215.3." 8 C.F.R. § 215.2(a). The second states that the
In addition, in the BRA itself Congress explained how to reconcile the release and detention provisions of that statute with the administrative deportation provisions of the INA. Under the BRA, if a judicial officer determines both that a person is not a citizen of the United States and that "such person may flee or pose a danger to any other person or the community," the judicial officer shall order the temporary detention of such a person for the purpose of allowing the government to notify "the appropriate official of the Immigration and Naturalization Service." 18 U.S.C. § 3142(d), especially § 3142(d)(2). The BRA continues: "If the official fails or declines to take such person into custody during that period, such person shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings." 18 U.S.C. § 3142(d). In this case, the judicial officer determined that Mr. Alvarez-Trujillo does not present either a risk that he may flee or a danger to any other person or the community. Thus, there is no statutory basis under the BRA for him to be further detained by ICE. Finally, it bears repeating: "If Congress wanted to bar aliens with immigration detainers from eligibility for release, it could readily have said so, but did not." Montoya-Vasquez, 2009 WL 103596, at *5.
Accordingly, 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. If ICE takes custody of Mr. Alvarez-Trujillo for the purpose of removing or deporting him, there is little (and probably nothing) that this Court can do about that, which is precisely what Magistrate Judge Acosta stated on the record. If, however, ICE declines to take custody of Mr. Alvarez-Trujillo for the purpose of removing or deporting him, then, as Congress plainly declared in the BRA, such a person shall be treated "in accordance with the other provisions" of that law, which require his pretrial release subject to the conditions imposed by Judge Acosta. What neither ICE nor any other part of the Executive Branch may do, however, is hold someone in detention for the purpose of securing his appearance at a criminal trial without satisfying the requirements of the BRA.
Because the Executive Branch has a choice of whether to deport Mr. Alvarez-Trujillo or have him stand trial on the criminal charge of illegal reentry that is pending against him, it does not yet appear to this Court that any member of the Executive Branch has violated any court
This does not mean, however, that this Court is powerless to prevent the Executive Branch from ignoring its obligations under the BRA. As stated by District Judge Rosenbaum in the Barrera-Omana case:
Barrera-Omana, 638 F.Supp.2d at 1111-12.
As noted above, Mr. Alvarez-Trujillo's trial is currently scheduled for November 13, 2012, in Portland. He has been kept by ICE in Tacoma, Washington, and out of the District of Oregon for more than one month. Not only has this deprived Mr. Alvarez-Trujillo of the comfort and support of his family and friends, it has deprived him and his court-appointed counsel of the ability to meet and work together to prepare for his defense at trial without undue inconvenience or hardship, thereby jeopardizing not only his statutory rights under the BRA, but also his rights under the Fifth, Sixth, and Eighth Amendments and under basic principles of fundamental fairness.
A district court has inherent supervisory powers over its processes and those who appear before it. See generally United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). These supervisory powers include, but are not limited to, the ability "to implement a remedy for a violation of recognized rights." United States v. W.R. Grace, 526 F.3d 499, 511 n. 9 (9th Cir.2008) (citation omitted); see also United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir.2011) (recognizing that even when government conduct does not rise to the level of a due process violation, a court nonetheless may dismiss an indictment using its supervisory powers). As the Ninth Circuit expressly recognized: "Dismissal is appropriate when the investigatory or prosecutorial process has violated a federal constitutional or statutory right and no lesser remedial action is available." United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir.1991). It is unclear, however, whether a lesser remedial action is available, and the Executive Branch will be afforded an opportunity to show that it is.
Thus, if the Executive Branch chooses to forgo criminal prosecution of Mr. Alvarez-Trujillo on the pending charge of illegal reentry and deport him from the United States, as previously stated, there is nothing further for this Court to do. If, however, the Executive Branch chooses to pursue the criminal prosecution of Mr. Alvarez-Trujillo under the pending charge, then he must be promptly returned to the
Accordingly, if Mr. Alvarez-Trujillo is returned to this district and released on the conditions previously imposed by Magistrate Judge Acosta by 5:00 p.m. Pacific time on Monday, November 5, 2012, then the pending criminal prosecution may proceed. If, however, he is not returned and released by that date and time, the pending criminal charge will be dismissed with prejudice.
Defendant's motion for an order to show cause, for certification of facts, and for other relief as appropriate (Doc. 13) is GRANTED IN PART AND DENIED IN PART. The Executive Branch has one week from the date of this Opinion and Order to return Defendant to the District of Oregon and release him subject to the conditions previously determined by Magistrate Judge Acosta. If that does not occur by 5:00 p.m. Pacific time on Monday, November 5, 2012, the criminal charge now pending against Defendant will be dismissed with prejudice. Defendant's motion for a stay of his removal proceeding and for an order directing his transport to the District of Oregon to attend the hearing set for October 10, 2012 (Doc. 17) is DENIED.
