United States v. Veloz-Alonso, 120618 FED6, 18-3973

• Opinion Judge: ALICE M. BATCHELDER, Circuit Judge.
• Party Name: United States of America, Plaintiff-Appellant, v. Cesar Veloz-Alonso, Defendant-Appellee.
• Attorney: Danielle K. Angeli, Rebecca C. Lutzko, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellant. Vanessa F. Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellee.
• Judge Panel: Before: SUHRHEINRICH, BATCHELDER, and BUSH, Circuit Judges.
• Case Date: December 06, 2018
• Court: United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit

United States of America, Plaintiff-Appellant,

v.

Cesar Veloz-Alonso, Defendant-Appellee.

No. 18-3973

United States Court of Appeals, Sixth Circuit

December 6, 2018

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:18-cr-00464-1-James S. Gwin, District Judge.

ON BRIEF:

Danielle K. Angeli, Rebecca C. Lutzko, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellant.

Vanessa F. Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellee.

Before: SUHRHEINRICH, BATCHELDER, and BUSH, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

This case is about an illegal alien with a final deportation order who was criminally prosecuted and pleaded guilty to illegally reentering the country. The district court released him on bail prior to sentencing. Finding a statutory conflict, the district court issued an order preventing the United States Immigration and Customs Enforcement (ICE) from detaining or deporting him prior to sentencing. The government appealed the order preventing its agents from acting pursuant to their statutory mandates. The district court erred in its statutory finding and in issuing its order. We REVERSE.

I.

This case involves two Article II agencies navigating their own competing statutory requirements while an Article III adjudication commences. Cesar Veloz-Alonso (Veloz-Alonso) is a native and citizen of Mexico who entered the United States illegally in the early 1990s. He was removed in 1997, 1999, and 2008. In June 2018, Veloz-Alonso was discovered again, having for a third time illegally reentered, and was detained by ICE. In August 2018, Veloz-Alonso was indicted on a charge of illegal reentry in violation of 18 U.S.C. § 1326. He was detained pending trial. In October 2018, Veloz-Alonso pleaded guilty and moved for release on bail pending sentencing.

Under the Bail Reform Act (BRA), a defendant found or pleading guilty must be detained unless the district court finds by clear and convincing evidence that he is not a flight risk or a danger to the safety of the community. 18 U.S.C. § 3143(a)(1). The district court held hearings on the motion for release. The government argued that Veloz-Alonso was a flight risk because, in addition to his repeated willingness to violate federal law, Veloz-Alonso was subject to a reinstated order of removal and an ICE detainer. If release on bond were granted, the government asserted, Veloz-Alonso would be taken into custody by ICE, removed, and thus unable to attend a sentencing hearing.

The district court granted the motion for release pending sentencing subject to conditions, including electronic monitoring and a property lien on his house. The district court found that Veloz-Alonso demonstrated by clear and convincing evidence that he was not a flight risk or a danger to the community. The district court found that a defendant subject to removal under the Immigration and Naturalization Act (INA)¹ is not per se ineligible for bail. As part of its reasoning, the district court cited several district court opinions finding that the BRA supersedes the INA during an Article III adjudication. See, e.g., United States v. Trujillo-Alvarez, 900 F.Supp.2d 1167 (D. Or. 2012). In addition to a statutory construction argument, the district court also raised a separation of powers concern. "[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."

The government appeals the district court's order prohibiting ICE from detaining or deporting Veloz-Alonso. The government also argues that the district court committed reversible error by finding a conflict between the BRA and the INA and prohibiting ICE from fulfilling its mandatory statutory duties pursuant to a valid final removal order under the INA.

II.

We review "a district court's factual findings concerning release pending sentencing for clear error" and review legal conclusions de novo. United States v. Christman, 596 F.3d 870, 870 (6th Cir. 2010) (citing United States v. Hazime, 762 F.2d 34, 37 (6th Cir. 1985)).

An inevitable conflict arising from decades-old immigration laws has predictably found its way to the doorstep of the judiciary. The precise issue before us today has never been directly addressed by our sister circuits or the Supreme Court. We take this opportunity to provide some guidance on the issue.

Several district courts around the country have found, as the district court here did, that the BRA and INA pose a conflict. "This issue arises in the collision between the Immigration and Naturalization Act and the Bail Reform Act." The preeminent case standing for this proposition is United States v. Trujillo-Alvarez, 900 F.Supp.2d 1167 (D. Or. 2012). Trujillo-Alvarez and similar cases (e.g., United States v. Boutin, 269 F.Supp.3d 24 (E.D.N.Y. 2017); United States v. Garcia,...