United States v. Veloz-Alonso, 18-3973

• Decision Date: 06 December 2018
• Docket Number: No. 18-3973,18-3973
• Citation: 910 F.3d 266
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Cesar VELOZ-ALONSO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

910 F.3d 266

UNITED STATES of America, Plaintiff-Appellant,

v.Cesar VELOZ-ALONSO, Defendant-Appellee.

No. 18-3973

United States Court of Appeals, Sixth Circuit.

Decided and Filed: December 6, 2018

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.

ALICE M. BATCHELDER, Circuit Judge.

OPINION

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 , No. 18-cr-20256, 2018 WL 3141950 (E.D. Mich. June 27, 2018) ; United States v. Ventura , No. 17-cr-418, 2017 WL 5129012 (E.D.N.Y. Nov. 3, 2017) ) find that when the government has detained an illegal alien, "[T]he Executive has a choice to make. 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." Trujillo-Alvarez , F.Supp.2d at 1179. Other cases in this line find the same binary framework. "The Executive branch should decide where its priorities lie: either with a prosecution in federal district court or with removal of the deportable alien." Ventura , 2017 WL 5129012, at *2. This framework creates a problem when the government attempts to pursue both options simultaneously. When those pursuits come into tension, courts following the Trujillo-Alvarez framework have held that once an alien is submitted for criminal prosecution, the statutory permissions of the BRA supersede the statutory mandates of the INA. We do not agree.

A long-established canon of statutory interpretation instructs that, "when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intent to the contrary, to regard each as effective ...."

Morton v. Mancari , 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). The section of the Bail Reform Act under which the district court granted Veloz-Alonso's release states:

(a) Release or detention pending sentence —(1) except as provided in paragraph (2), 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 ... 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 if released under section 3142(b) or (c).

18 U.S.C. § 3143(a). Section 3143 imports much of the language of § 3142 that covers the "Release or detention of a defendant pending trial ...." Section 3142 specifically contemplates the release of illegal aliens, instructing "the attorney for the government to notify the appropriate court, probation or parole official, or State or local law enforcement official, or the appropriate official of the Immigration and Naturalization Service" when the judicial officer orders the temporary detention or conditional release of an illegal alien. 18 U.S.C. § 3142(d). The pretrial or presentencing release of illegal aliens is clearly permitted under BRA.

As the government points out, however, nothing in the BRA prevents other government agencies or state or local law enforcement from acting pursuant to their lawful duties. Rather, the BRA imposes a presumption of detention for criminal defendants pending trial ( § 3142 ) or sentencing ( § 3143 ) that defendants must overcome by a showing of "clear and convincing evidence." Release of a criminal defendant is permissive after such a showing.

The INA, while discretionary in many situations, is mandatory in others. As it pertains to illegal aliens with final deportation orders, such as Veloz-Alonso, there is no ambiguity: ICE is authorized and mandated under the INA to detain and deport. The relevant sections state in part:

(a) Detention, release, and removal of aliens ordered removed

(1)(C) Suspension of period . The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien ... conspires or acts to prevent the alien's removal subject to an order of removal.

(2) Detention . During the removal period, the Attorney General shall

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