The Ice ICE Is Using to Ice Your Client Is Melting a Bit

October 8, 2013
By Hanging Out with Carl Gunn



  • There’s more district court opinions out there holding the existence of an ICE detainer doesn’t preclude a court from granting bond to a defendant who’s in the country illegally.
  • Two of these opinions also consider the issue of whether ICE can then hold the person in immigration custody without removing him and hold that ICE can’t do that; it has to either promptly remove the defendant or release him on the bond.
  • The Ninth Circuit has affirmed one magistrate judge decision ordering release, albeit in an unpublished order.



Since I’ve recently been going back and doing updates on issues I’ve covered in the past, I thought I’d do an update in a different area. A new unpublished district court opinion just came to me across one of the e-mail lists I’m on – and also through former Deputy Federal Public Defender, now UCLA Law Professor, Ingrid Eagly, who has an interest in this area – which addresses the issue of whether ICE can use an immigration detainer to prevent the release on bond of a client who’s in the country illegally. For those of you who’ve been following this blog from the beginning, you may recall that I did a post on this topic last year. (See “Can ICE Really Ice Your Client Even When He Gets a Bond in the Criminal Case? Or Is There a Way to Melt ICE?” through the May 2012 link at the right.)

The new opinion is in a case out of Alabama and is unpublished (at least as of now), but can be found on Westlaw as United States v. Blas, No. CRIM. 13-0178-WS-C, 2013 WL 5317228 (S.D. Ala. Sept. 20, 2013), and is also attached here in slip opinion form. It’s a magistrate judge opinion stating that the government would be held in contempt if ICE or the Marshal’s office continued to hold a defendant in custody after the defendant had been granted bond in the criminal case, had been taken into custody on an ICE detainer and moved to an ICE detention facility for removal proceedings, had then been returned for the criminal prosecution pursuant to a writ of habeas corpus ad prosequendum, and was being held in United States Marshal custody pending that prosecution. The court held the government did have discretion to either deport the defendant or prosecute him, “but once the Secretary [of Homeland Security] opts for prosecution over deportation – as is clear in this case – and invokes the jurisdiction of this Court, this Court has priority or first standing and administrative proceedings must take a backseat to court proceedings until the criminal prosecution comes to an end.” Id., slip op. at 7, 2013 WL 5317228, at *3.

The court then made a number of helpful points in its conclusions of law. It noted that “‘the purpose of an ICE detainer is for ‘arresting and removing the alien[ ]’ but may not be utilized ‘for the purpose of avoiding the pretrial release provisions of the BRA [Bail Reform Act].’” Id., slip op. at 13, 2013 WL 5317228, at *5 (quotingUnited States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1176 (D. Ore. 2012)). The court also cited a number of cases noting what the case I discussed in my post last year had held, namely, that there is not an “ICE detainer” exception to the Bail Reform Act that precludes granting bond to a defendant on whom an ICE detainer has been placed. Id., slip op. at 13-14, 2013 WL 5317228, at *6 (citing Trujillo-Alvarez, 900 F. Supp. 2d at 1176-78; United States v. Barrera-Omana, 638 F. Supp. 2d 1108, 1111 (D. Minn. 2009); United States v. Montoya-Vasquez, 2009 WL 103596, at *5 (D. Neb. Jan. 13, 2009); and United States v. Sanchez-Martinez, No. 13-cr-00236-JLK, 2013 WL 3662871, at *4 (D. Colo. July 12, 2013)). The court also noted that the immigration statutes and regulations could be reconciled with a government decision to prosecute a defendant rather than remove him, pointing out that (1) the immigration statute setting a 90-day deadline for removal does not begin to run until, inter alia, release from detention or confinement, which must be read to mean confinement on an ultimate sentence, not pretrial confinement, see Blas, slip op. at 11-12, 2013 WL 5317228, at *5 (quoting 8 U.S.C. § 1231(a)(1)(A),(B) and Trujillo-Alvarez, 900 F. Supp. 2d at 1174, 1175); and (2) immigration regulations preclude removal of any alien who is a party in a criminal case, see Blas, slip op. at 15, at *7, 2013 WL 5317228 (quoting Trujillo-Alvarez, 900 F. Supp. 2d at 1178-79 and 8 C.F.R. §§ 215.2(a), 215.3(g)).

Especially for us in the Ninth Circuit, it’s equally worth reading the published Oregon district court opinion inTrujillo-Alvarez which the new Alabama opinion quotes and relies upon extensively. It makes – indeed, is the original source – of the points made in the Alabama opinion that are noted above, and it adds some other points as well. One of those additional points is that the possibility of a defendant failing to appear because ICE might deport him is not the sort of risk of nonappearance about which the Bail Reform Act is concerned; rather, that risk of nonappearance “must involve ‘an element of [the defendant’s own] volition.’” Trujillo-Alvarez, 900 F. Supp. 2d at 1176 (quoting United States v. Barrera-Omana, 638 F. Supp. 2d at 1111).

Then a second point, or set of points, is about what the statutory language of the Bail Reform Act suggests, similar to the argument discussed in my post last year. First, the opinion notes that the Act provides 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.’” Trujillo-Alvarez, 900 F. Supp. 2d at 1173 (emphasis in original) (quoting 18 U.S.C. § 3142(e)(1)). Second, the opinion points to the Act’s provision expressly addressing defendants subject to immigration detainers:

In addition, in the BRA itself Congress explained how to reconcile the release and detention provisions of the statute with the administrative deportation provisions of the INA [Immigration and Nationality Act]. Under the BRA, if a judicial officer determines 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). . . .

Trujillo-Alvarez, 900 F. Supp. 2d at 1179 (emphasis in original). The opinion then concludes from this that in the case before it – and presumably any other case in which a magistrate judge found bond was otherwise appropriate – “the Executive Branch has a choice to make.” Id.

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, . . . . 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 [the magistrate judge]. 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.


Then one last item of interest in the Trujillo-Alvarez opinion is an update it gives us on the Castro-Inzunza case that I talked about in my post last year. The magistrate judge’s ruling in that case – which is what I quoted in the post – was apparently reversed by the district court, but that district court reversal was in turn reversed by the Ninth Circuit, albeit in an unpublished order. The Circuit ruled in that unpublished order, which is quoted in the Trujillo-Alvarez opinion, that the existence of a reinstated removal order does not, by itself, justify detention under the Bail Reform Act and “remanded to the district court to establish appropriate conditions of release, including a stay of the removal period.” Trujillo-Alvarez, 900 F. Supp. 2d at 1178 (quoting United States v. Castro-Inzunza, No. 12-30205, Dkt. 9 (9th Cir. July 23, 2012), at *2-3). So we have Ninth Circuit authority of at least a sort on our side in addition to these district court opinions.