United States v. Barrera-Landa

964 F.3d 912

UNITED STATES of America, Plaintiff - Appellee,

v.Jose Luis BARRERA-LANDA, Defendant - Appellant.

No. 20-4044

United States Court of Appeals, Tenth Circuit.

FILED July 6, 2020

Submitted on the briefs:^*

Scott Keith Wilson, Federal Public Defender, Benjamin C. McMurray, Assistant Federal Defender, Salt Lake City, Utah, for Defendant-Appellant.

John W. Huber, United States Attorney, Felice John Viti, Assistant United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, BRISCOE and HARTZ, Circuit Judges.

TYMKOVICH, Chief Judge.

Jose Luis Barrera-Landa appeals from the district court's release order. The district court ordered Mr. Barrera¹ released pending trial subject to the conditions the magistrate judge set in an earlier order. Mr. Barrera does not appeal from that portion of the district court's release order. As part of its order granting pretrial release, the district court denied Mr. Barrera's request to enjoin the United States Immigration and Customs Enforcement (ICE) from detaining or deporting him during the pending criminal proceedings. Mr. Barrera appeals from that portion of the district court's release order. Exercising our jurisdiction pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291, we affirm.

I.

This appeal involves the relationship between the detention and release provisions of two statutes: the Bail Reform Act (BRA), 18 U.S.C. §§ 3141 - 3156, and the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 - 1537. Congress passed the BRA to address whether and under what circumstances a district court may release a defendant pending trial. See United States v. Salerno , 481 U.S. 739, 742-43, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The BRA requires the pretrial release of a defendant unless "no condition or combination of 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). The BRA also contains a temporary detention provision "for persons not lawfully admitted to the United States, as well as individuals who are on pretrial or post-conviction release on other federal, state, or local charges, so that immigration and other officials can take custody of such individuals before BRA conditions of release are set." United States v. Soriano Nunez , 928 F.3d 240, 244 (3d Cir. 2019) (citing 18 U.S.C. § 3142(d) ). "Other than during this temporary detention period, ... non-citizen defendants are treated the same as other pretrial criminal defendants under the BRA." Id . at 244-45.

The INA gives the Attorney General the power to issue warrants for arrest and to seek the detention or release of an alien "pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a). Aliens who have committed certain criminal offenses must be detained pending removal. See id . § 1226(c)(1). And ICE may issue a detainer when an alien is in the custody of another governmental entity. See id. § 1357(d). "Via the detainer, ICE informs the agency that it ‘seeks custody’ of such an alien ‘for the purpose of arresting and removing’ the alien." Soriano Nunez , 928 F.3d at 245 (quoting 8 C.F.R. § 287.7(a) ).

II.

Mr. Barrera is a native and citizen of Mexico. He was removed from this country in 2011 based on a final order of removal. At some point, he reentered the country. Earlier this year, ICE arrested him and reinstated his prior order of removal. He was subsequently charged with re-entry of a previously removed alien, in violation of 8 U.S.C. § 1326, and immigration officials brought him to the courthouse to appear on this charge. At his initial hearing, the government sought detention. Mr. Barrera initially waived pretrial release to participate in the Fast Track program,² and the district court entered a detention order, remanding him to the custody of the U.S. Marshals. Because Mr. Barrera was subject to a reinstated order of removal, ICE lodged a detainer seeking his custody for immigration purposes when he was due to be released from the custody of the U.S. Marshals.

Mr. Barrera subsequently moved for review of his detention order by the magistrate judge. He asserted that he no longer wished to participate in the Fast Track program and he requested that he be released pursuant to § 3142(e)(1). The government filed a response in opposition to Mr. Barrera's release request, arguing that he was a danger to the community and no conditions could assure his appearance at future court proceedings or the safety of the community. In his reply, Mr. Barrera continued to assert that he met the standards for pretrial release under § 3142(e)(1). He also argued that if he was released pretrial, the district court should enjoin ICE from taking custody of him during his pending criminal proceeding.

After holding a hearing on the motion, a magistrate judge determined that Mr. Barrera could be released pretrial subject to certain conditions. The magistrate judge denied Mr. Barrera's request to enjoin ICE from taking him into custody after his release, agreeing with a number of other circuits that have held the government has the authority to proceed down the dual tracks of criminal prosecution and immigration enforcement at the same time.

The government sought de novo review of the magistrate judge's decision releasing Mr. Barrera on conditions. It also requested a stay of the release order pending the district court's review. The magistrate judge granted the stay. The district court held a hearing on the government's motion, but ultimately agreed that Mr. Barrera could be released pretrial subject to the conditions the magistrate judge had imposed. The court also denied Mr. Barrera's request to enjoin ICE from detaining or deporting him during his pending criminal proceedings.³ The government did not appeal from the district court's order releasing Mr. Barrera with conditions and Mr. Barrera likewise does not challenge that portion of the release order. Mr. Barrera appeals the portion of the release order denying his request to enjoin ICE from detaining him or deporting him while he is on pretrial release.

III.

"In general, we apply de novo review to mixed questions of law and fact concerning a district court's detention or release decision, but we accept the district court's findings of historical fact which support that decision unless they are clearly erroneous." United States v. Doby , 928 F.3d 1199, 1202 (10th Cir. 2019) (internal quotation marks and brackets omitted). This appeal, however, does not involve any challenges to the district court's decision to release Mr. Barrera pretrial subject to conditions. Instead, this appeal involves a purely legal question about the interplay between the BRA and the INA that we review de novo. See id. at 1202, 1204 (reviewing de novo purely legal issue in bail appeal).

A.

We first consider what arguments were raised in the district court and are properly before this court on appeal. In his reply in support of his motion for magistrate judge review of the initial detention order, Mr. Barrera argued, "[w]hen ICE takes custody of an individual, it can seek either to pursue removal in lieu of prosecution or to have the individual prosecuted and then issue a final administrative order of removal after the conclusion of the criminal case." Aplt. Unsealed App. at 48. He asserted that ICE was required under 8 U.S.C. § 1231(a) to remove him within ninety days once it reinstated his prior order of removal. He further asserted that ICE violated § 1231(a) by deferring his removal to facilitate the criminal prosecution against him, and that by doing so, the "executive branch ... submitted to the laws that govern criminal proceedings, including the [BRA], 18 U.S.C. § 3142." Aplt. Unsealed App. at 48. Mr. Barrera acknowledged that § 3142(d) permitted the detention of an individual for ten days during which immigration could take custody of the individual, but noted that his detention had far exceeded the ten-day waiting period. He also asserted that the ten-day waiting period would not have been appropriate in any event because ICE had relinquished custody to the executive branch, citing again to § 3142(d).

Mr. Barrera did not file any further briefing on the issue in district court. At the hearing on the government's motion for district court review, the district court sua sponte raised the issue. The court asked the parties to "discuss whether the Government's decision to prosecute Mr. Barrera has any impact on ICE's ability to detain and/or deport the Defendant." Id. at 138.

Counsel for Mr. Barrera responded:

[O]ur argument in a nutshell is that under the statute and the applicable regulations, when ICE issues the final removal order, they have the obligation to remove that individual and lack the discretion to release that individual.

In this case, ICE failed to comply with those laws and, instead of removing Mr. Barrera, ICE agents literally brought him to the federal courthouse and handed him over to the Department of Justice. Having relinquished custody, it would be improper for them to now assert custody when they were the ones who made the choice to hand him over. And by choosing to deliver him to the Department of Justice for prosecution, ICE effectively made the choice to submit to the rules that apply to criminal proceedings.

If you order that he is to be released and live at a certain place and comply with certain conditions, all must honor that order, both Mr. Barrera, as well as Immigration.

Id . at 140. For support, he cited to United States v. Baltazar-Sebastian , 429 F. Supp. 3d 293 (S.D. Miss. 2019). Counsel also asserted his belief that the detainer issued in the case was illegal, relying on 8 U.S.C. § 1357(d). His final argument was for the district court "to consider release ... under the standards that would apply to a temporary restraining order [TRO], which this court has equitable authority to issue."...