No Icing Our Clients in the Second Circuit Either; That’s Hockey Country, and You Only Get to Ice in Hockey When You’re Playing Short-Handed.

September 19, 2017
By Hanging Out with Carl Gunn


  • A New York district court has joined the flood holding ICE detainers can’t be used to defeat an order setting bond in a criminal case.
  • The court’s memorandum order cites both the Ninth Circuit’s decision in United States v. Santos-Flores, 794 F.3d 1088 (9th Cir. 2015), and the in-depth district court opinion in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Ore. 2012), as well as opinions from multiple other districts around the country.
  • The bottom line is ICE detainers can’t be used to prevent release on bond and shouldn’t even be a factor in the determination.



You may recall a number of posts I’ve put up over the years regarding arguments to make and cases holding a defendant can’t be detained solely because there’s an ICE detainer on him and that he can’t be held in custody on that detainer if bond is set in the criminal case and the government intends to continue with the criminal prosecution.  (See “An Update on Melting ICE” in the March 2017 link at the right, and “Detention Based on ICE Detainers Is Melting in the Ninth Circuit Too” in the September 2015 link, as well as the earlier posts cited in those posts.) As I tried to put it a little colorfully in the first of the posts:  “Can ICE Really Ice Your Client Even When He Gets a Bond in a Criminal Case?  Or Is There a Way to Melt Ice?”  (This post to be found in the May 2012 link at the right.)

Well, to continue with my poor efforts at puns, icing our clients isn’t allowed in ice hockey land either, at least in the New York part of hockey land.  An e-mail that came across my computer a couple of months back circulated a recent ruling by a Southern District of New York judge – in United States v. Thiodore Igorovich Galitsa, S.D.N.Y. No. 17-CR-00324 (VEC), see id., ECF No. 30 (filed July 28, 2017) – joining what’s becoming a chorus of opinions and orders recognizing the government can’t use an ICE detainer to prevent release when bond is set in a criminal case.  For those interested in reading the New York court’s “Memorandum Order,” it’s attached here.  It cites and adopts the Ninth Circuit opinion and the most in-depth district court opinion cited and discussed in my earlier posts – United States v. Santos-Flores, 794 F.3d 1088 (9th Cir. 2015), and United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Ore. 2012).  It also adds its own bits of colorful rhetoric, characterizing the government at one point as “like a two-headed monster,” Memorandum Order, at 8, and concluding in the last paragraph of its analysis:

What the government cannot do is treat the United States Code like a take-out menu whereby the Government can mix-and-match from column A (prosecution or removal) and from column B (Bail Reform Act or ICE detention rules).  If the Government chooses to prosecute, then it must proceed in accordance with all the rules that govern criminal prosecutions.  First and foremost among those rules is the Bail Reform Act.  Thus, the Government must decide whether to continue the criminal case – and comply with the magistrate judge’s release determination – or to proceed under the [Immigration and Nationality Act], dismiss th[e] case, and remove the [defendant] from the country.  What the Government cannot do is have it both ways.  (Footnote omitted.)

Memorandum Order, at 10.

The Memorandum Order also cites several other district court opinions in the chorus – from states as varied as Pennsylvania, Kansas, and California.  See Memorandum Order, at 6-7 n.4.  Add that to the 16 cases collected in the “Is Global Warming Melting ICE’s Immigration Detainer Glaciers?” post in the January 2014 link at the right, and we have a veritable flood of melting ice on our side.

But enough with the puns.  Just remember that an ICE detainer does not mean there can’t be a release on bond.  In fact, it shouldn’t even add weight to the balance.  While I haven’t looked at the form myself, the New York AFPD who litigated the bail issue in the New York case noted the detainer form itself says it should not affect bail determinations.