United States v. Baltazar-Sebastian

990 F.3d 939

UNITED STATES of America, Plaintiff—Appellant,

v.Melecia BALTAZAR-SEBASTIAN, Defendant—Appellee.

No. 20-60067

United States Court of Appeals, Fifth Circuit.

FILED March 10, 2021

Kathryne Gray, U.S. Department of Justice Office of Immigration Litigation - District Court Section, Ben Franklin Station, Washington, DC, Gaines H. Cleveland, Assistant U.S. Attorney, Shundral Hobson Cole, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Mississippi, Gulfport, MS, for Plaintiff - Appellant.

Terri Denise Murry-Whalen, Whalen Firm, Jackson, MS, Samuel Callahan, Janine Marie Lopez, Andrew T. Tutt, Arnold & Porter Kaye Scholer, L.L.P., Washington, DC, Jeremy Jong, New Orleans, LA, Omodare Jupiter, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Mississippi, Jackson, MS, for Defendant - Appellee.

Matthew Rowen, Michael Dallas Lieberman, Kirkland & Ellis, L.L.P., Washington, DC, for Amicus Curiae R. Street Institute.

S. Conrad Scott, Covington & Burling, L.L.P., New York City, NY, for Amici Curiae Mississippi Center for Justice, Southeast Immigration Rights Network.

Matthew Vogel, National Immigration Project of the National Lawyers Guild, Washington, DC, for Amicus Curiae National Immigration Project of the National Lawyers Guild.

Before Barksdale, Southwick, and Graves, Circuit Judges.

Rhesa Hawkins Barksdale, Circuit Judge:

Primarily at issue is whether the United States Department of Homeland Security's Immigration and Customs Enforcement Agency (ICE) may, under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq. , civilly detain a criminal defendant after she has been granted pretrial release pursuant to the Bail Reform Act, 18 U.S.C. § 3141 et seq . We hold there is no conflict between the statutes preventing defendant's detainment. VACATED.

I.

Melecia Baltazar-Sebastian is a Guatemalan citizen residing in the Southern District of Mississippi. In August 2019, she was arrested at her place of employment during an ICE worksite enforcement action.

After Baltazar admitted she was not in possession of proper immigration documents, ICE took her into custody. She was civilly charged with being inadmissible under the INA and was booked into an ICE processing center in Jena, Louisiana (there are no ICE facilities in Mississippi dedicated to more than 72-hours’ detention). See 8 U.S.C. § 1226(a).

Later that month, a grand jury in Mississippi indicted Baltazar for misusing a social-security number, in violation of 42 U.S.C. § 408(a)(7)(B). A warrant was issued for her arrest; and, in response, ICE transferred her to the United States Marshal for the Southern District of Mississippi for her initial appearance on her indictment. Before she was transferred, however, ICE lodged a detainer, which advised the Marshal that it sought custody of Baltazar in the event of her release (ICE detention). See 8 C.F.R. § 287.7(a).

In September, after Baltazar pleaded not guilty to her criminal charges, the magistrate judge held a hearing in Jackson, Mississippi, to determine Baltazar's eligibility for pretrial release under the Bail Reform Act (BRA). Concluding she was not a flight risk or danger to the community, the magistrate judge ordered her released on bond subject to conditions (September release order). See 18 U.S.C. § 3142(b). The conditions required, inter alia , that she "remain in the Southern District of Mississippi at all times during the pendency of these proceedings unless special permission is obtained from the Court". The Government did not then challenge the September release order. See 18 U.S.C. § 3145(a).

Notwithstanding the September release order, ICE retook custody of Baltazar based on its prior detainer and returned her to its detention facility in Jena, Louisiana (almost 200 miles away). In late September, while she remained in ICE detention, a magistrate judge granted the United States’ motion for writ of habeas corpus ad prosequendum to facilitate Baltazar's appearance at a pretrial hearing in Jackson, Mississippi, for her criminal case. Baltazar then requested a hearing in that case to clarify her status under the September release order, maintaining her civil ICE detention was unlawful because of the September release order.

After an October hearing in Mississippi, the district court granted Baltazar's request to enforce the September release order, precluding ICE detention (October enforcement order). In that regard, the court stated: "Once the criminal matter is concluded the Executive Branch may continue its immigration proceedings". In December, the court denied the Government's motion for reconsideration of the October enforcement order (December order). The court reasoned ICE's detainment would "circumvent" the September release order. The Government appealed the December order. On the Government's motion, the district court stayed Baltazar's criminal trial pending this appeal.

II.

First at issue is our jurisdiction vel non to consider the Government's appeal. If jurisdiction exists, we review the Government's contesting the court's precluding ICE from detaining Baltazar during the pendency of her criminal proceedings; and, along that line, Baltazar's separation-of-powers and right-to-fair-trial contentions.

A.

As discussed above, in October, subsequent to ICE's resuming detention of Baltazar, the district court ordered her release from that detention pursuant to the September release order, promising a "more thorough written [o]rder" would follow. The Government timely moved to reconsider that October enforcement order, extending the Government's time in which to appeal until after the motion was denied. See United States v. Brewer , 60 F.3d 1142, 1143 (5th Cir. 1995) (holding motion for reconsideration tolls time to appeal under Federal Rule of Appellate Procedure 4 ); United States v. Rainey , 757 F.3d 234, 239 (5th Cir. 2014) ("[Under 18 U.S.C. § 3731,] the Government continues to be bound by the thirty-day requirement, but the judgment becomes final, and the clock begins to run, only after the disposition of a timely filed motion to reconsider".). After the court, in its December order, denied the motion to reconsider, the Government timely appealed.

In maintaining we have jurisdiction over its appeal of the court's December order, the Government relies on the BRA:

An appeal by the United States shall lie to a court of appeals from a decision or order, entered by a district court of the United States, granting the release of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of, a decision or order granting release.

18 U.S.C. § 3731 (paragraph three).

1.

Interestingly, our jurisdiction is challenged not by Baltazar, but by an amicus curiae . The amicus maintains, inter alia : for purposes of appellate jurisdiction, the Government should have challenged the magistrate judge's September release order, as opposed to appealing the district court's enforcement of that order (the December order). Although appellate jurisdiction vel non is not mentioned in the parties’ opening briefs (the Government's reply brief responds to the jurisdictional issue presented by the amicus ), we must, of course, consider the question sua sponte . See Christopher M. by Laveta McA. v. Corpus Christi Indep. Sch. Dist. , 933 F.2d 1285, 1292 (5th Cir. 1991) ("[A]micus curiae ... cannot raise an issue raised by neither of the parties absent exceptional circumstances".); Giannakos v. M/V Bravo Trader , 762 F.2d 1295, 1297 (5th Cir. 1985) ("Courts of Appeals have the responsibility to consider the question of subject matter jurisdiction sua sponte if it is not raised by the parties and to dismiss any action if such jurisdiction is lacking.").

2.

Under the BRA, we have jurisdiction over "[a]n appeal from a release or detention order, or from a decision denying revocation or amendment of such an order". 18 U.S.C. § 3145(c). In that regard, and as referenced supra , jurisdiction exists for the Government's appeal from "a decision or order, entered by a district court of the United States, granting the release of a person charged with ... an offense". 18 U.S.C. § 3731 (paragraph three). Importantly, the provisions of this statute should be "liberally construed to effectuate its purposes", which undoubtedly include the expansion of appellate jurisdiction. Id. (paragraph five); see United States v. Wilson , 420 U.S. 332, 337, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) (concluding the passage of the Criminal Appeals Act of 1970 showed "Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit"); United States v. Jefferson , 623 F.3d 227, 230 (5th Cir. 2010) ("We have interpreted § 3731 as providing the government with as broad a right to appeal as the Constitution will permit.") (internal quotation marks and citation omitted).

The September release order released Baltazar from criminal detention under the BRA. Considered by itself, we would lack jurisdiction over the September release order because it was issued by a magistrate judge and not a district court.

18 U.S.C. § 3145(a) ; see, e.g., United States v. Harrison , 396 F.3d 1280, 1281 (2d Cir. 2005). The December order, however, was the district court's affirmation of the September release order in response to defendant's motion to clarify her release status. The December order is therefore appealable under §§ 3145 and 3731. See United States v. Soriano Nunez , 928 F.3d 240, 244 (3d Cir. 2019) ("[Defendant] essentially challenges the [District] Court's decision to deny her request to enforce its BRA order. ... To the extent [defendant] challenges the enforcement of a BRA order, we have jurisdiction over this appeal."); United States v. Lett , 944 F.3d 467, 469 (2d Cir. 2019) (reviewing district court's enforcement of prior release order).

B.

Accordingly, we consider...