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Posted: January 2, 2018

Judge Irizarry: Government Cannot Use Immigration Detention To Retain Custody Of Criminal Defendants That Are Granted Bail In The Criminal Proceeding

For the second time in as many months, Chief Judge Dora L. Irizarry has ruled that the Government cannot use immigration detention to maintain custody of criminal defendants that are granted bail in their criminal case under the Bail Reform Act, 18 U.S.C. § 3141, et seq. (United States v. Boutin, 17-CR-590 (E.D.N.Y. Dec. 26, 2017) (DLI)). The court held that the government must choose between releasing defendant on bail or having the indictment dismissed with prejudice. The question presented is straightforward: “‘whether Defendant [who was granted bail] may be held in ICE custody while his prosecution by the U.S. Attorney’s Office is pending.’” This is an issue that has apparently not yet been addressed by any Court of Appeals, but according to the Government, the Solicitor General is now considering whether to test the issue on appeal.

Defense attorneys often forgo seeking bail for criminal defendants who are subject to removal for immigration issues; the thinking is that even if bail were granted, the defendant will simply be transferred to immigration custody. However, these cases suggest that defense counsel should actively consider seeking bail even for criminal defendants who are subject to removal, but should consult with immigration counsel given the complexities involved in correctly presenting the bail application.

In Boutin, the defendant is a dual Spanish and Panamanian citizen charged with money laundering and theft. Boutin’s visa expired in 2016 and was now in the United States illegally. At arraignment, Boutin was ordered released on $100,000 bond and conditions of home confinement and monitoring. However, Boutin remained in custody pursuant to an ICE detainer.

Judge Irizarry noted that she had recently ruled on the question of whether the Bail Reform Act trumps the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., in a case titled U.S. v. Ventura, 17-CR-418 (E.D.N.Y. Nov. 3, 2017) (DLI):

In Ventura, this Court concluded that, once a criminal prosecution is initiated and the Government has invoked the jurisdiction of a federal district court, the Bail Reform Act is controlling. When an Article III court has ordered a defendant released, the retention of a defendant in ICE custody contravenes a determination made pursuant to the Bail Reform Act. As such, the Government’s criminal prosecution cannot proceed and must be dismissed with prejudice. See [United States v.] Ventura, 2017 WL 5129012, at *3 [(E.D.N.Y. Nov. 3, 2017)]. As noted in Ventura, this issue has not been addressed by the Second Circuit Court of Appeals or any other circuit court, but other district courts that have addressed this issue are in accord.

(United States v. Boutin, 17-CR-590 (E.D.N.Y. Dec. 26, 2017) (DLI)).

In Boutin, the court rejected the Government’s arguments that the Ventura holding should only be applied where the immigration detainer is merely pretextual and where the defendant’s criminal charge is immigration related. The court then concluded:

The Government has requested that the indictment, if it is to be dismissed, be dismissed without prejudice. Dismissal without prejudice would frustrate the purpose of the dismissal, namely to force the Government to make a choice. The Government is not without remedy as it may appeal this Court’s decision. Therefore, the request is denied. The Government also has requested that any order of dismissal be stayed pending its decision whether to appeal that order. Apparently, such a stay would be indefinite as the Government still is deciding whether to perfect its appeal in Ventura, which was decided over a month ago. The Court sees no irreparable harm to the Government that would necessitate a stay. The Government is empowered fully to choose the path it prefers in this case: release Defendant from ICE custody and proceed with the criminal prosecution, or retain Defendant in ICE custody and proceed with removal. It simply cannot have it both ways. Accordingly, the request for a stay also is denied.

(United States v. Boutin, 17-CR-590 (E.D.N.Y. Dec. 26, 2017) (DLI)).

As in Ventura, Judge Irizarry ordered that the Government release the defendant as per the bail order or have the indictment dismissed with prejudice. The Court gave the Government about a week to decide how it wished to proceed. In Ventura, the Government chose to retain custody of the defendant and the indictment was dismissed with prejudice. (The motions in both Boutin and Ventura were argued by Isaac Wheeler, an immigration specialist at the Federal Defenders of NY.)

Update: On January 3, 2018, the Court dismissed the indictment after the Government advised the Court that the defendant was not released from ICE custody.

Posted by Solomon N. Klein, Litigation Partner

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