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Non-Citizen Clients

Learn about the conflicts that arise for non-citizen clients between the DOJ and DHS/ICE in federal criminal prosecutions and immigration proceedings. Discover strategies to navigate these conflicts and achieve the desired outcomes for your clients.

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Non-Citizen Clients

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  1. Non-Citizen Clients (yes, Judge, you really can release them)

  2. Conflicts to Know about : • BRA vs INA • DHS vs AUSA

  3. Conflict Number One: • The AUSA is under the DOJ, and as we know is charged with federal criminal prosecutions • The EOIR (Executive Office of Immigration Review) is also under the DOJ – this is the courts and IJs. • DHS/ICE is also a part of the executive branch charged with enforcing the immigration laws (e.g. deporting non-citizens) – but works hand in hand with the EOIR. • Tensions arise when the AUSA wants to charge someone with a crime and DHS simultaneously wants to deport them.

  4. Conflict Number Two: • THE BRA has a presumption for release. • The INA (Immigration and Nationality Act) charges DHS with deporting people who are deportable, as soon as possible. (90 days from final order) • When a non-citizen is released, DHS could deport them, robbing the AUSA of its purpose in life to get its pound of flesh.

  5. How to navigate the conflicts? • 1) Decide what your client wants / your goal • 2) If it is to get him deported quickly so as to avoid conviction / time in prison, you can argue for release and hope that DHS picks him up and deports him. (Then file a MTD pursuant to United States v. Alvarado-Velasquez, 322 F. Supp. 3d 857, 858 (M.D. Tenn. 2018) & United States v. Blas, 2013 WL 5317228 (S.D. Ala. Sept. 20, 2013)) • 3) If your goal is to have him released during the pendency of the criminal case, you need to argue for release and also ask the Judge to direct DHS to suspend its removal proceedings until the criminal case has been resolved. (see caselaw though  bad in the 6th)  • 4) Another option is asking for a bond from immigration court and/or litigating clients’ release from immigration court.

  6. Back to the good ole BRA! • Like Beth said… The BRA has a presumption for RELEASE • AND… nothing in the BRA prevents non-citizens from pretrial release! • There is only one mention of immigration status in the BRA: if the judge determines the defendant to be a non-citizen AND “such person may flee or pose a danger to any other person in the community,” the judge can temporarily detain them and notify ICE. • (That detention is limited to ten work days and if custody is not transferred or is refused, the judicial officer must proceed with a bail determination as required under the aforementioned sections). § 3142(d). • THAT’S A VERY BIG AND !! • Ummm… It’s kindof like they’re treated the same as all other defendants!

  7. Imagine all the people…. Living life in peace…

  8. 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).

  9. Goals at the DH • Just like in citizen cases, focus on flight risk and danger. • Family connections and ties to community are very important. • Long-time presence. • Lack of Criminal History.

  10. And of course… Know the caselaw • WE MUST EDUCATE THE COURT.

  11. The Idea that we want to promote: • The executive branch must make a choice: • Deport right away ORRRRRRR • Prosecute criminally • If it does not want to forgo prosecution then it must adhere to the tenets of the BRA and release our client. It must postpone removal and let our client stay out, assuming he meets the BRA guidelines for release.

  12. Trujillo-Alvarez, 900 F.Supp.2d 1167 (9th 2012) • This case explains the concept really well: • “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 determines under the BRA that a particular defendant must be released pending trial because that defendant does not present a risk of either flight or harm, and the government has chosen not to appeal that determination, the Executive Branch may no longer keep that person in physical custody. To do so would be a violation of the BRA and the court's order of pretrial release.”

  13. Trujillo-Alvarez, 900 F.Supp.2d 1167 (9th 2012) • “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.”

  14. In other words • The DOJ and DHS/ICE are two arms of the same body (the executive branch): one arm cannot release someone pursuant to a valid determination under the BRA and then the other arm take him right back into custody. • Message to the Executive Branch: MAKE YOUR CHOICE. We don’t care what it is. Just pick one. • (well we kinda do care but you know what I mean)

  15. Other courts have followed Trujillo • United States v. Boutin, 269 F.Supp.3d 24 (E.D.N.Y. 2017); • United States v. Garcia, No. 18-cr-20256, 2018 WL 3141950 (E.D. Mich. June 27, 2018); (pre-Veloz-Alonso)  • United States v. Ventura, No. 17-cr-418, 2017 WL 5129012 (E.D.N.Y. Nov. 3, 2017) ) • United States v. Ailon-Ailon, 875 F.3d 1334, 1337 (10th Cir. 2017): risk of involuntary removal does not establish a “serious risk that [the defendant] will flee” upon which pre-trial detention may be based. § 3142(f)(2)(A).

  16. AL Judge Emily Marks: YASSS, QUEEN! • The District Court, Emily C. Marks, Chief Judge, held that: • mere fact that defendant charged with illegal reentry offense might be in the United States illegally did not necessarily mean that she was flight risk, and was insufficient to satisfy the government's burden of proof on this issue at bail hearing; • the Bail Reform Act does not create a rebuttable presumption that removable aliens should be detained; and • there is no exception to the Bail Reform Act for defendants encumbered by detainers issued by Immigration and Customs Enforcement (ICE), pursuant to which such defendants must be detained pending trial or sentence. ---United States v. Espinoza-Ochoa, No. 2:18CR353-ECM, 2019 WL 1061662 (M.D. Ala. Mar. 6, 2019)….. We’ll see if that goes to the 11th….

  17. The existence of an ICE detainer is irrelevant under the Bail Reform Act. United States v. Santos-Flores, 794 F.3d 1088 (9th Cir. 2015); United States v. Montoya–Vasquez, 2009 WL 103596 (D.Neb.); United States v. Barrera–Omana, 638 F.Supp.2d 1108, 1111 (D.Minn.2009) • (However be aware that some circuits have said the existence of an ICE hold is at least a relevant consideration).

  18. Argue that: Flight Risk Must have an element of volition • If the government argues that there is an ICE detainer, and thus if client is released he will not appear for court because he will be in immigration custody, argue that Flight risk must have an element of volition. • This idea comes from Trujillo-Alvarez as well, but you could argue that the BRA implies that flight risk can only be the volitional kind. • E.G.: You can’t punish someone for something that is out of their control. • Judge, respectfully, you may not consider the fact of an ICE hold in your BRA analysis.

  19. Two arms of the same robot: • Argue: The government has not shown that it lacks the ability to stay or defer my client’s removal through a stay. (This is from an unpublished 9th Circuit case US v. Castro-Inzunza, 2012 WL 6622075)

  20. But what about the Sixth????????? • So, yes, things are a bit more dicey here. • It’s maybe not that bad, though. If we can get around Veloz-Alonso. • AND I THINK WE CAN!

  21. Some cases…. • Valadez-Lara went through a thoughtful consideration of the BRA and whether an ICE hold prevents release (seeming to imply that it’s a consideration but not a bar to release), but in the end reached the perplexing conclusion that since D was not in the country legally, he was in violation of the conditions of release by actively committing a crime, and must be held. United States v. Valadez-Lara, No. 3:14 CR 204, 2015 WL 1456530 (N.D. Ohio Mar. 30, 2015) • But it’s unpub’d so let’s just forget it, shall we?

  22. United States v. Jimenez-Lopez, No. 18-MJ-30320, 2018 WL 2979692 (E.D. Mich. June 14, 2018) • Another unpublished one, but we like her so we’ll keep her. • Court followed Trujillo-Alvarez that the BRA supercedes the INA and says declines to consider ICE hold/ immigration status in release analysis! • Court ruled D’s family ties, financial resources, length of residence in the community, past conduct weighed in his favor and released him. • Did not speak to the issue of whether the district court can force a stay of removal proceedings.

  23. US v Garcia, 2018 WL 3141950 (E.D. Mich. 2018) • D was indicted on drug charges • Mag judge released, but D was taken into immigration custody, but was not planning on proceeding with her removal immediately but was holding her for the sole purpose of “ensuring her appearance” in these criminal proceedings. • Follows Trujillo, Blas, etc: once the Executive Branch decides to prosecute, it must stay immigration proceedings and follow the BRA. • “unless Garcia is released from ICE custody pursuant to the conditions set forth in the magistrate judge’s order of release by noon on July 6, 2018, the Court will dismiss the indictment against Garcia with prejudice.”

  24. US v Veloz-Alonso, 910 F.3d 266 (6th Cir. 2018) • A.K.A. the bane of our existence. • WHYYYYYYY? • Disagrees with Trujillo-Alvarez and its ilk. • Says no conflict between BRA and INA. INA gives DHS the command to deport immediately. Court can’t release because if they did they’d be deported and therefore a flight risk for the 1326 prosecution. • Rejects the district court’s mandate to ICE to stay removal and leave D out of custody. • (Awesome phrase by trial court: “[The government's] position smacks of a threat to the judiciary not to disagree with [its] bond position.” As part of its order granting release, the district court ordered the government, under threat of contempt, “to refrain from detaining or deporting the Defendant while he is released pending sentencing.”) However, the 6th said the court can’t do that. Wah!

  25. Distinguish, distinguish distinguish!!!! • Procedural posture: Veloz-Alonso had already pled guilty to 1326, and thus was subject to 18 USC § 3143(a): • the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. 994 does not recommend a term of imprisonment, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community. • Presumption of detention as opposed to presumption for release under § 3142!!! (wherein the government must establish the (1) “risk of flight by a preponderance of the evidence” or (2) “dangerousness to any other person or the community by clear and convincing evidence.”)

  26. Other factors to highlight • Mr. Veloz-Alonso had been deported three times previously. Maybe your client is a first or second-timer. • If a § 1326 case, re-entry does not trigger any of the enumerated offenses that create a rebuttable presumption of detention under§ 3142(e) &(f)!!!!! Even Veloz-Alonso court acknowledged that noncitizen status does not bar release.

  27. Our Strategy • Sidestep Veloz-Alonso by focusing on postural distinction totally different standard! • Argue that Jimenez-Lopez and Garcia are most relevant case in Sixth Circuit precedent. • It’s a little tricky because Veloz-Alonso explicitly declines to follow Trujillo-Alvarez and the proposition that the BRA supercedes the INA. • However, we could say it’s an issue of first impression for the Sixth to consider a pre-trial non-citizen release case. • Thoughts?

  28. “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” -United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

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