United States v. Calixto-Pichardo

UNITED STATES OF AMERICA, Plaintiff, v. GABRIEL CALIXTO-PICHARDO, Defendant.

No. 3:21-MJ-08106-GCS

United States District Court, S.D. Illinois

July 6, 2021

MEMORANDUM & ORDER

GILBERT C. SISON, United States Magistrate Judge

On April 27, 2021, the prosecution filed a criminal complaint against Defendant Gabriel Calixto-Pichardo charging him with one count of improper entry in violation of 8 U.S.C. § 1325(a)(1). (Doc. 1). Though Magistrate Judge Mark A. Beatty initially released Mr. Calixto-Pichardo pursuant to the Bail Reform Act, 18 U.S.C. § 3142(a), Immigration and Customs Enforcement detained Mr. Calixto-Pichardo immediately upon his release. (Doc. 12; Doc. 15). Now before the Court is Mr Calixto-Pichardo's motion to dismiss the indictment against him or to release him on the previously set bond conditions. (Doc. 15). For the reasons set forth below, the motion to dismiss is DENIED.

Factual and Legal Background

In his affidavit supporting the prosecution's April 27, 2021 complaint, Special Agent Robert Lawson of the Immigration and Customs Enforcement (“ICE”) Homeland Security Investigations division stated that the basis for the complaint was that Mr. Calixto-Pichardo's status at last entry was Entry Without Inspection (“EWI”), and his current immigration status was “no lawful status.” (Doc. 15, p. 2). ICE had initially attempted to locate and arrest Mr. Calixto-Pichardo as he was being released from the Illinois Department of Corrections (“IDOC”) after serving a sentence for kidnapping. Id. at p. 3. However, the attempt was unsuccessful. Id. ICE eventually located Mr. Calixto-Pichardo in the Southern District of Illinois in January 2021. Id.

In a typical case for unlawful immigration, the United States Attorney's Office (“USAO”) and ICE cooperate in order to charge the defendant. Under 8 U.S.C. § 1357(a), ICE may conduct an arrest without a warrant of “any alien in the United States, if [the agent] has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest . . . .” 8 U.S.C. § 1357(a)(2).^[1] ICE must then decide whether or not to refer the arrestee for criminal prosecution. See U.S. ICE/ERO, 1 Criminal Alien Program Handbook, ERO 11157.1 (May 14, 2013), available at https://www.americanimmigrationcouncil.org/sites/default/files/foiadocuments/ accesstocounseliceproduction9-25-2014.pdf.

After referral, the USAO must determine whether to pursue criminal charges. If the USAO chooses to prosecute the case, the attorney will obtain a criminal arrest warrant and the arrestee will be taken into custody by the U.S. Marshal. ICE officials may issue a detainer in order to ensure the agency's ability to initiate removal proceedings upon an arrestee's release. A detainer requests that any other federal, state, or local law enforcement agency contact ICE before releasing the defendant, so that ICE officers can take the defendant into custody for the purpose of removing the defendant from the country. See 8 C.F.R. § 287.7(a). In this case, ICE issued a detainer for Mr Calixto-Pichardo when he was first arrested for kidnapping.

Shortly after a defendant is arrested, the defendant's first appearance before a judicial officer triggers the application of the Bail Reform Act (“BRA”). See 18 U.S.C. § 3142, et seq. The BRA regulates the conditions under which a defendant may be released on bond or bail. In considering whether a defendant should be released a court considers: (i) release on personal recognizance or on execution of an unsecured appearance bond; (ii) release on certain conditions outlined in § 3142(c); (iii) temporary detention to permit revocation of conditional release, deportation or exclusion; or (iv) detention pursuant to § 3142(e).

On May 17, 2021, pursuant to the BRA, Judge Beatty ordered that Mr. Calixto-Pichardo be released on the conditions that he not violate any law while on release, cooperate in the collection of a DNA sample, advise the Court or U.S. Probation/Pretrial Services Office of any changes to his residence or telephone number in writing, appear at all proceedings and surrender for the service of any sentence imposed as directed, and sign an appearance bond, if ordered. (Doc. 12). However, Mr. Calixto-Pichardo was not released, but instead transferred to ICE custody. (Doc. 15).

Analysis

In his motion to dismiss, Mr. Calixto-Pichardo broadly alleges that “the purpose of ICE custody is not to effectuate removal but to hold him pending prosecution.” (Doc. 15 ¶¶ 3, 6)(citing United States v. Ventura, 17-CR-418(DIL), 2017 WL 5129012, *1 (E.D.N.Y. Nov. 3, 2017), remanded for reconsideration by No. 17-3904-cr, 747 Fed.Appx. 20(mem)(2d Cir. 2018)). Mr. Calixto-Pichardo also argued that the Government cannot simultaneously proceed on a dual criminal prosecution and deportation track. Id. at ¶ 5. Mr. Calixto-Pichardo prays that the Court either require the Government to release him under the bond conditions set in the case and continue the prosecution or require the prosecution to dismiss the indictment with prejudice, forego its illegal entry prosecution, and proceed with his removal. Id. at p. 2.

I. Whether Mr. Calixto-Pichardo's Detention is Pretextual

During the June 21, 2021 hearing, Mr. Calixto-Pichardo asserted that ICE's detention of him was necessarily pretextual and therefore in conflict with the requirements of the BRA. In providing the foundation for this argument, Mr. Calixto-Pichardo initially relied on both Ventura and United States v. Trujillo-Alvarez, 900 F.Supp.2d 1167, 1178 (D. Or. 2012). In both Trujillo-Alvarez and Ventura, the respective courts recognized that ICE retains the ability to take the defendant back into administrative custody “for the purpose of deporting him.” Ventura, 2017 WL 5129012, at *2 (citing Trujillo-Alvarez, 900 F.Supp.2d at 1178). However, “nothing permits ICE . . . to disregard the congressionally mandated provisions of the [BRA] by keeping a person in detention for the purpose of delivering him to trial when the [BRA] itself does not authorize such pretrial detention.” Id. On appeal of Ventura, counsel for the defendant acknowledged that ICE was not powerless to initiate a removal proceeding against someone once they have a pending federal case. See Ventura, 747 Fed.Appx. at 22. Instead, the essential question was whether the district court could make a justified finding, based on the circumstances before it, that the purpose of ICE custody was not to effectuate removal but to hold the defendant pending prosecution. Id. In order to make such a finding, the Court must see evidence that the detention amounts to a pretextual, bad faith, or otherwise wrongful detention in contravention of the magistrate judge's orders under the BRA. Id. Cf. United States v. Stolica, No. 09-cr-30047-DRH, 2010 WL 345968, *1 (S.D. Ill. Jan. 26, 2010)(noting that a defendant may show that ICE is pretextually holding him to avoid the mandates of the Speedy Trial Act by demonstrating that the administrative civil detention is solely or primarily to hold the defendant for future prosecution, prompted by wrongful collusion with the prosecution, and finding that the argument fails where civil officials had a lawful basis for the detention).

Mr. Calixto-Pichardo does not provide any evidence of pretext, bad faith, or wrongful detention. Rather, during the June 21, 2021 hearing, Mr. Calixto-Pichardo argued that his detention was pretextual due to a legal premise, i.e. because ICE cannot remove Mr. Calixto-Pichardo while the Government is prosecuting a criminal case against him, the effect of his detention with ICE is that he will be detained until trial. In support, Mr. Calixto-Pichardo notes that portions of the Immigrant and Nationality Act (“INA”) forbid the removal of an immigrant when that immigrant's departure is prejudicial to the United States. See 8 C.F.R. § 215.2(a). Specifically, the regulation states: “[n]o alien shall depart, or attempt to depart, from the United States if his departure would be prejudicial to the interests of the United States under the provisions of § 215.3.” Id. Section 215.3 notes that the departure of any “alien who is needed in the United States as . . . a party to [] any criminal case under investigation or pending in the United States” shall be considered prejudicial. 8 C.F.R. § 215.3(g). Mr. Calixto-Pichardo argues that, when read as a coherent and harmonious whole, these two statutes prevent ICE from deporting him until after the conclusion of his criminal proceedings. The result is that ICE is effectively detaining Mr. Calixto-Pichardo for the purposes of holding him pending trial.

When interpreting statutory language, courts are to begin their inquiry by examining the statute's text; if the text is unambiguous, the inquiry ends there. See Bostock v Clayton County, Georgia, 140 S.Ct. 1731, 1749 (2020) (internal citations omitted). In conducting this analysis, the Court should consider the statute's entire text, in view of its structure and the physical and logical relation of its many parts. See Beeler v. Saul, 977 F.3d 577, 585 (7th Cir. 2020) (internal citations omitted). Courts therefore interpret statutes as a “symmetrical and coherent regulatory scheme[;]” if possible, all parts of a statute should fit into a harmonious whole. Owner-Operator Indep. Drivers Assoc., Inc. v. U.S. Dept. of Transp., 840 F.3d 879, 888 (7th Cir. 2016). See also Duncan v. Walker, 533 U.S. 167, 174 (2001)(holding that courts should be “reluctant to treat statutory terms as surplusage in any setting”). Careful statutory interpretation reveals that although his argument appears to be logically sound, Mr. Calixto-Pichardo misinterprets §...