United States District Court, N.D. Iowa, Cedar Rapids Division
Williams United States District Judge
matter is before the Court on defendant's Second Motion
to Dismiss (Doc. 33). The government timely filed a resistance.
(Doc. 46). For the following reasons, the Court
denies the motion.
and Customs Enforcement (“ICE”) officers arrested
defendant on October 2, 2018, when defendant appeared at an
ICE office at the request of ICE officers handling
immigration matters related to defendant's wife and
children. Defendant was arrested on immigration charges
because he was subject to an order of deportation.
October 11, 2018, the government filed a criminal complaint
against defendant, charging him with the crime of being found
in the United States after Illegal Re-entry, in violation of
8 U.S.C. § 1326(a). (Case 18-mj-354, Doc. 2). The
criminal warrant for his arrest was executed the same day and
defendant was removed from ICE custody and placed in the
custody of the United States Marshal. (Id., Doc. 5).
Apparently, at about the same time defendant came into the
Marshal's custody, ICE filed a detainer against
defendant. Defendant made his initial appearance the
same day before the Honorable Mark. A. Roberts, United States
Magistrate Judge. (Id., Doc. 8). Defendant waived a
detention hearing at that time. (Id.).
October 17, 2018, a grand jury returned an indictment
charging defendant with being found in the United States
after having been removed from the United States, in
violation of 8 U.S.C. § 1326(a). (Doc. 2). Defendant
waived initial appearance and arraignment and entered a
written plea of not guilty. (Doc. 4).
November 1, 2018, defendant filed a motion for pretrial
release. (Doc. 10). On November 9, 2018, defendant appeared
before Judge Roberts for a detention hearing. During the
hearing, the government explained that if the court released
defendant, ICE would immediately take him into custody
pursuant to its detainer and begin the process of removing
him from the United States. (Doc. 21; Tr. at 35). The
government asserted that ICE could remove him from the United
States within a few weeks, making him unavailable for trial.
(Id.). Judge Roberts ordered defendant released on a
personal recognizance bond, and he entered a written order to
that effect. (Doc. 15). Judge Roberts stayed his order
releasing defendant pending the government's filing of
its motion appealing the order. (Doc. 14).
November 9, 2018, the government appealed Judge Roberts'
order. (Doc. 17). On November 14, 2018, the Court denied the
government's appeal, finding under the factors of 18
U.S.C. § 3142 that the government had not proven that
there was a serious risk that defendant would flee or pose a
danger to others. (Doc. 20). The Court ordered defendant
released from custody pursuant to the Order Setting
Conditions of Release entered by Judge Roberts.
release from the custody of the United States Marshal, ICE
immediately took defendant into custody pursuant to its
detainer. On November 16, 2018, the government filed a motion
to expedite the trial, arguing that ICE has begun proceedings
to remove defendant. (Doc. 26, at 2). The government went on
ICE (part of the Department of Homeland Security) has
indicated that it intends to proceed with the removal, and
removal of defendant is likely to occur before the current
trial date. Therefore, in light of the Court's order,
there is a substantial risk of nonappearance of the defendant
(Id., at 2 n.1).
resolution of this motion turns on the interplay between two
statutes, the Bail Reform Act of 1984 (“BRA”), 18
U.S.C. § 3142, et seq., and the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1101, et
seq. The BRA addresses a federal court's authority to
detain a defendant for purposes of prosecution on federal
charges. In pertinent part, the INA addresses the authority
of the Department of Homeland Security (“DHS”) to
detain an alien for purposes of deportation. Defendant argues
that a federal court's decision to release a defendant
pursuant to the BRA bars the DHS from detaining that same
person pursuant to the INA. The Court finds otherwise.
applies to all persons charged with a federal crime,
regardless of immigration status. In assessing whether a
defendant should be released, 18 U.S.C. § 3142(a)
establishes four options: (1) release on personal
recognizance or upon execution of an unsecured appearance
bond under § 3142(b); (2) release on one or more
conditions outlined in § 3142(c); (3) temporary
detention to permit revocation of conditional release,
deportation, or exclusion under § 3142(d); or (4)
detention pursuant to § 3142(e). The court may order
detention of an arrestee pending trial only if the government
demonstrates after an adversarial hearing that no release
conditions “will reasonably assure the appearance of
the person as required and the safety of any other person and
the community.” 18 U.S.C. § 3142(e)(1).
only provision of the BRA that differentiates between the
treatment of aliens and citizens-§ 3142(d)-permits a
“temporary detention to permit . . . deportation, or
exclusion” if the judicial officer determines that the
defendant “is not a citizen of the United States or
lawfully admitted for permanent residence” and
“may flee or pose a danger to any other person or the
community.” Id. at § 3142(d)(1)(B),
in full, Section 3142(d) provides:
(d) Temporary Detention To Permit Revocation of Conditional
Release, Deportation, or Exclusion.-If the judicial officer
(1) such person-
(A) is, and was at the time the offense was committed, on-
(i) release pending trial for a felony under Federal, State,