150 F.Supp.2d 1302 (M.D.Fla. 2001), 6 00CR195ORL22, United States v. Adomako

Docket Nº6 00CR195ORL22
Citation150 F.Supp.2d 1302
Party NameUnited States v. Adomako
Case DateJune 14, 2001
CourtUnited States District Courts, 11th Circuit, United States District Court of Middle District of Florida

Page 1302

150 F.Supp.2d 1302 (M.D.Fla. 2001)

UNITED STATES of America

v.

Kwadjo Osei ADOMAKO

No. 6:00CR195ORL22KRS.

United States District Court, M.D. Florida, Orlando Division.

June 14, 2001

Charles Michael Greene, Law Office of Charles M. Greene, Orlando, FL, for defendant.

ORDER

GLAZEBROOK, United States Magistrate Judge.

This cause came on for hearing on June 12, 2001 on the following motion:

MOTION: DEFENDANT ADOMAKO'S EMERGENCY MOTION FOR RELEASE FROM THE CUSTODY OF THE IMMIGRATION AND NATURALIZATION SERVICE (Doc. No. 28)

FILED: June 5, 2001

THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part as moot.

I. THE SEPARATION OF POWERS ISSUE

After a full hearing on March 15, 2001 pursuant to 18 U.S.C. §§ 3142(f), Docket No. 13, this Court denied the government's motion to detain Adomako. Docket Nos. 13, 15. This Court ordered the United States Marshal to hold Adomako in custody until notified by the Clerk that Adomako had posted bond and complied with the conditions for release on electronic monitoring.

Page 1303

Docket Nos. 13, 15. The United States did not appeal from the denial of its motion for detention. See 18 U.S.C. § 3145; 28 U.S.C. § 636(b)(1)(a). Adomako claims that the United States Department of Justice 1 refuses to release him pursuant to this Court's release order because of an administrative detainer issued by the INS. Adomako further objects that the INS has incarcerated him in several county jails far from his defense counsel and translator, impairing his ability to prepare his defense. Docket No 28 at 1--2.

In response, the government contends that the Attorney General alone has the power to release or detain a deportable alien, and that this Court has no jurisdiction to review the Attorney General's decision to detain Adomako (and to lodge a detainer with the United States Marshal). Docket No. 30 at 5. Although the government does not contest that Congress requires United States Magistrate Judges to determine whether release conditions will reasonably assure the appearance of citizens and illegal aliens alike, 18 U.S.C. § 3142(d)--(e), the government contends that a court's decision to release a deportable alien has no effect unless the Attorney General has ordered his release.

The government further informs the Court that the INS intends to deport Adomako regardless of the status of the criminal proceedings. The government states, however, that it will notify the Court should deportation become imminent. Docket No. 30 at 11, n.9 and surrounding text. Lastly, the government argues that the INS's closest facilities are 200 to 500 miles from Orlando, and that this Court has no jurisdiction to hear Adomako's challenge to the Attorney General's discretionary power to transfer aliens among those facilities. Docket No. 30 at 10.

II. THE LAW ON DETENTION OF DEPORTABLE ALIENS

The constitutional and statutory rights of citizens and non-citizens alike depend upon the separation of powers. It is fundamental that the legislative power of the United States is vested in Congress, and the executive power in the President. U.S. CONST. Art. I, § 1 and Art. II § 1. The judicial power of the United States is vested in the United States Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish. U.S. CONST. Art III, § 1. The judicial power extends to all cases, in law and equity, arising under the Constitution and the laws of the United States. U.S. CONST. Art. III, § 2. But the judicial power is limited in scope. The judiciary must take care not to exceed jurisdictional limits set by the Constitution and by Congress.

A. Release and Detention in Criminal Proceedings

Congress has decreed that a judicial officer 2 shall order that an arrested person be released or detained pending judicial proceedings. 18 U.S.C. § 3141(a). Upon the appearance of a person charged with an offense, 3 the judicial officer must issue an order that, pending trial, the person be 1.) released on his own recognizance or unsecured bond; 2.) released on

Page 1304

conditions; 3.) temporarily detained to permit deportation; or 4.) detained. 18 U.S.C. § 3142(a). Congress has mandated that the judicial officer shall order the pretrial release of the person on preferred conditions " unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community." 18 U.S.C. § 3142(b)(emphasis supplied). Congress chose not to exclude deportable aliens from consideration for release or detention in criminal proceedings. See 18 U.S.C. § 3142(a)(3) and (d).

If the judicial officer determines that a person is not a citizen of the United States or lawfully admitted for permanent residence and that he may flee or pose a danger to the community, the judicial officer shall order temporary detention for not more than ten days, and direct the attorney for the government to notify the appropriate INS official. 18 U.S.C. § 3142(d)(1)(B). Thus, a determination as to whether the alien may flee is essential even to a decision to impose temporary detention. If the INS official does not take custody during a period of not more than ten days, Congress directs the Court to apply the normal release and detention rules to the deportable alien without regard to the laws governing release in INS deportation proceedings:

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) (bold emphasis supplied).

Where a judicial officer decides that detention is required, the detention order 1.) directs that the person be committed to the custody of the Attorney General for confinement separate from persons awaiting or serving sentences; 2.) directs that the person be afforded reasonable opportunity for private consultation with counsel; and 3.) directs that the person be delivered to the United States Marshal for appearance in court. 18 U.S.C. § 3143(i)(2)--(4). The government may obtain review of a magistrate judge's release order by filing a motion for revocation of the release order in the district court, which motion will be determined promptly. 18 U.S.C. § 3145(a). Further review of a release order may be had in the court of appeals. 18 U.S.C. § 3145(c).

B. Administrative Detention and Deportation

Congress has enacted detailed legislation regarding the deportation or "removal" of aliens. The Attorney General shall remove an alien from the United States within ninety days of his release from detention or confinement (the "removal period"). 8 U.S.C. § 1231(a)(1). During the removal period, the Attorney General shall detain the alien, and "under no circumstance" release him. 8 U.S.C. § 1231(a)(2). If an alien is not removed within the removal period, the alien is subject to supervision under regulations prescribed by the Attorney General. 8 U.S.C. § 1231(a)(3). The Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment. 8 U.S.C. § 1231(a)(4)(A). Parole, supervised release, 4 probation, "or possibility of further imprisonment is not a reason to defer removal." 8 U.S.C. § 1231(a)(4)(A) (emphasis

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supplied). The Attorney General must arrange for appropriate places of detention for aliens pending removal.

Congress has defined in great detail the scope of judicial review of an order of removal. See 8 U.S.C. § 1252. Judicial review of a final order of removal may be had only in the court of appeals. 8 U.S.C. § 1252(a)(1); 28 U.S.C. § 2341 and following (Chapter 158). Section 1252, however, does not discuss judicial review of an order of detention in an administrative removal proceeding. The statute does require the consolidation of all questions of law and fact for judicial review:

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.

8 U.S.C. § 1252(b)(9) (section (b) relates to the requirements for review of orders of removal). Section 1252 further states that:

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

8 U.S.C. § 1252(g).

The United States relies on Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999) to support its argument...

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23 practice notes
  • 536 F.Supp.2d 962 (E.D.Wis. 2008), 08-CR-31, United States v. Chavez-Rivas
    • United States
    • Federal Cases United States District Courts 7th Circuit United States District Court of Eastern District of Wisconsin
    • 27 Febrero 2008
    ...governing release pending trial or deportation or exclusion proceedings." 18 U.S.C. § 3142(d); see also United States v. Adomako, 150 F.Supp.2d 1302, 1304 (M.D.Fla.2001) ("If the INS official does not take custody during a period of not more than ten days, Congress directs the Cou......
  • United States v. Dozal, 032709 KSDC, 09-20005-08/12/24-KHV
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Courts. 10th Circuit. District of Kansas
    • 27 Marzo 2009
    ...risk of flight analysis. See United States v. Chavez-Rivas , 536 F.Supp.2d 962, 968-69 (E.D. Wisc. 2008); United States v. Adomako , 150 F.Supp.2d 1302, 1307 (M.D. Fla. 2001). In addition, defendant faces a potential prison term of ten years to life. In these circumstances, the Court finds ......
  • United States v. Dozal, 032709 KSDC, 09-20005-08/12/24
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Courts. 10th Circuit. District of Kansas
    • 27 Marzo 2009
    ...the risk of flight analysis. See United States v. Chavez-Rivas, 536 F.Supp.2d 962, 968-69 (E.D. Wisc. 2008); United States v. Adomako, 150 F.Supp.2d 1302, 1307 (M.D.Fla. 2001). In addition, defendant faces a potential prison term of ten years to life. In these circumstances, the Court finds......
  • United States v. Valadez-Lara, 033015 OHNDC, 3:14 CR 204
    • United States
    • Federal Cases United States District Courts 6th Circuit United States District Court of Northern District of Ohio
    • 30 Marzo 2015
    ...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). Thus for purposes of bail, immigration status is not a factor for consideration in § 3142(g). See § 3142; United S......
  • Request a trial to view additional results
23 cases
  • 536 F.Supp.2d 962 (E.D.Wis. 2008), 08-CR-31, United States v. Chavez-Rivas
    • United States
    • Federal Cases United States District Courts 7th Circuit United States District Court of Eastern District of Wisconsin
    • 27 Febrero 2008
    ...governing release pending trial or deportation or exclusion proceedings." 18 U.S.C. § 3142(d); see also United States v. Adomako, 150 F.Supp.2d 1302, 1304 (M.D.Fla.2001) ("If the INS official does not take custody during a period of not more than ten days, Congress directs the Cou......
  • United States v. Dozal, 032709 KSDC, 09-20005-08/12/24-KHV
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Courts. 10th Circuit. District of Kansas
    • 27 Marzo 2009
    ...risk of flight analysis. See United States v. Chavez-Rivas , 536 F.Supp.2d 962, 968-69 (E.D. Wisc. 2008); United States v. Adomako , 150 F.Supp.2d 1302, 1307 (M.D. Fla. 2001). In addition, defendant faces a potential prison term of ten years to life. In these circumstances, the Court finds ......
  • United States v. Dozal, 032709 KSDC, 09-20005-08/12/24
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Courts. 10th Circuit. District of Kansas
    • 27 Marzo 2009
    ...the risk of flight analysis. See United States v. Chavez-Rivas, 536 F.Supp.2d 962, 968-69 (E.D. Wisc. 2008); United States v. Adomako, 150 F.Supp.2d 1302, 1307 (M.D.Fla. 2001). In addition, defendant faces a potential prison term of ten years to life. In these circumstances, the Court finds......
  • United States v. Valadez-Lara, 033015 OHNDC, 3:14 CR 204
    • United States
    • Federal Cases United States District Courts 6th Circuit United States District Court of Northern District of Ohio
    • 30 Marzo 2015
    ...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). Thus for purposes of bail, immigration status is not a factor for consideration in § 3142(g). See § 3142; United S......
  • Request a trial to view additional results