Detention Based on ICE Detainers Is Melting in the Ninth Circuit Too

September 15, 2015
By Hanging Out with Carl Gunn


  • There’s a recent Ninth Circuit case – United States v. Santos-Flores, 794 F.3d 1088 (9th Cir. 2015) – that confirms holdings in prior district court cases that the possibility – or actuality – of an ICE detainer can’t be used as a ground for denying bail.
  • The Ninth Circuit case also cites one of the prior district court opinion – United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012) – with approval, thereby giving that opinion more weight.
  • The Ninth Circuit case also recognizes the community ties of even an undocumented defendant as a factor weighing in favor of bail.



In several past posts, I’ve talked about multiple district court cases – totaling at least 16 as of January 2014 – that have held a defendant can’t be denied bail based on an ICE detainer.  (See “Is Global Warming Melting ICE’s Immigration Detainer Glaciers?” in the January 2014 link at the right, “The Ice ICE Is Using to Ice Your Client Is Melting a Bit” in the October 2013 link, and “Can ICE Really Ice Your Client Even When He Gets a Bond in a Criminal Case?  Or Is There a Way to Melt ICE?” in the May 2014 link.)  Well, we’ve now gone beyond just district courts; the Ninth Circuit recently joined in this view in United States v. Santos-Flores, 794 F.3d 1088 (9th Cir. 2015).

The Santos-Flores opinion makes a number of points consistent with the district court opinions.  First, it notes that “Congress chose not to exclude removable aliens from consideration for release or detention in criminal proceedings,” id. at 1090, and comments in a footnote that “[a] categorical bar against release for removable aliens would raise constitutional questions,” id. at 1091 n.1 (citing Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014) (en banc)).  The court further notes that the Bail Reform Act “provide[s] specific procedures to be followed when a judicial officer determines that a defendant is not a citizen of the United States or lawfully admitted for permanent residence.”  Id. at 1090-91.  The steps it indicates the judicial officer must take are (1) “determine whether [the defendant] may flee or pose a danger to the community”; (2) order temporary detention and direct the attorney to notify the “appropriate official of the Immigration and Naturalization Service” if there is such a risk of flight or danger; and (3) apply the other provisions of the Bail Reform Act if the immigration official does not take custody of the defendant during the 10-day period of temporary detention.  Id. at 1091.  And the court emphasized in listing these steps that a determination the defendant might flee or pose a danger is required for even the temporary detention.  Id.  An undocumented defendant therefore can’t be even temporarily detained without a finding of flight risk or danger.

Second, the court concludes from the foregoing that detaining a defendant based on the possibility of detention or removal by the immigration authorities “is contrary to the express language of the Bail Reform Act.”  Id.  It then explains the government has a choice of proceeding on the immigration front or the criminal front.

Reinstatement of a prior order of removal is neither automatic nor obligatory.  ICE may decide to forego reinstatement for a variety of reasons, including but not limited to the exercise of prosecutorial discretion.  The government may also exercise its judgment that the public interest in criminally prosecuting an alien is greater than the public interest in swiftly removing him.  The government may, therefore, elect to deliver the alien to the United States Attorney’s Office for prosecution . . . instead of removing him immediately pursuant to 8 U.S.C. § 1231(a)(5).

Santos-Flores, 794 F.3d at 1091 (citations omitted).  The court then held that, “[h]aving made this choice, . . . the government may not use its discretionary power to trump a defendant’s right to an individualized determination under the Bail Reform Act.”  Id.

The Santos-Flores opinion also cites with approval the district court opinion of United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), which I discussed in more detail in one of my prior posts (see “The Ice ICE Is Using to Ice Your Client Is Melting a Bit”).  See Santos-Flores, 794 F.3d at 1091.  This gives that district court opinion more weight.

Finally, the Santos-Flores opinion gives us some ammunition to use in arguing the “community ties” factor for our clients who are undocumented.  While agreeing that factors such as the use of false identification documents, falsely claiming to be a United States citizen, and reentry in violation of an order of removal could support detention – at least when supplemented by other factors such as being on supervised release and having prior failures to appear and numerous other arrests – the court held the community ties factor weighed in the defendant’s favor.

We do not accept, however, the government’s argument that Santos-Flores’s lack of ties to the District of Arizona supports the pretrial detention order, because Santos-Flores has significant community ties in Colorado.  Family ties, employment, length of residence in the community, and community ties are all relevant to the determination of pretrial release.  18 U.S.C. § 3142(g)(3)(A).  This court has held that “community ties” under the Bail Reform Act “embrace[ ] both the community in which the charges are brought and also a community in the United States to which the defendant has ties.” [United States v.] Townsend, 897 F.2d [989,] 995 [(9th Cir. 1990)].  The record reflects that Santos-Flores has a United States citizen wife and United States citizen children, with whom he seeks to live in Colorado.  He resided in the same Colorado community for approximately fifteen years, since childhood.  He worked for the same employer for approximately nine years and apparently would be welcomed back.  These community ties favor Santos-Flores, . . . .

Santos-Flores, 794 F.3d at 1093.  In addition to reiterating the general rule that “community ties” include ties elsewhere in the United States, this makes clear that ties to the community and similar facts don’t have to be a product of legal status.

So we now have more than just the district court cases holding an ICE detainer can’t be treated as an automatic bar to bail.  We have the Ninth Circuit as well.