I’ve posted before about the line of case following United States v. Trujllo-Alvarez, 900 F. Supp. 2d 1167 (D.Or. 2012), which held that ICE could not detain and attempt to remove a non-citizen defendant charged with the federal crime of illegal re-entry, once the defendant has been released under the Bail Reform Act. Trujillo and its progeny affirm that when the Executive Branch decides that it will defer removal and deportation in favor of first proceeding with a federal criminal prosecution, it is obligated to follow all applicable laws governing such prosecution, including, of course, the Bail Reform Act. Once the Secretary of Homeland Security opts for prosecution over deportation, and invokes the jurisdiction of the district court, that court has priority, and administrative deportation proceedings stall until and unless the criminal prosecution concludes or is dismissed. United States v. Blas, Crim. Action No. 13-378, 2013 WL 5317228, at *3 (S.D. Ala. Sept. 20, 2013). In United States v. Galitsa, 17 Cr. 324 (VEC), Judge Caproni followed the Trujillo-Alvarez reasoning, as did Judge Irizzary in United States v. Rosario Ventura, 17-cr-418, in the Eastern District of New York, holding that the Government must either release the defendant under the bond conditions set in the matter and proceed with prosecution, or dismiss the indictment and proceed with removal.

Now in another opinion out of the Eastern District of New York, United States v. Benzadon Boutin, No. 17-cr-590 (DLI), Judge Irizzary has reiterated that Trujillo and the line of cases issuing from this decision stand for more than just the narrow proposition that ICE custody cannot be used to end run around a district court’s order of release under the Bail Reform Act. In that case, the Government invoked the jurisdiction of the Court, charging defendant with non-immigration related federal crimes, including money laundering, and consented to his release on bail bond. Simultaneously, DEA agents were seeking an ICE detainer which they then lodged, so that once the defendant met his bail conditions, he was taken into ICE custody. The original date for the removal proceeding was advanced, with no explanation; as a result, the defendant was unable to retain counsel and was ordered removed in absentia, making ICE detention mandatory despite the fact that ICE’s own regulations provide that removal of an alien during the pendency of a criminal prosecution is prejudicial to the interests of the United States. 8 C.F.R. Section 215.3(g).

As one may imagine, the Court criticized the lack of coordination between the Department of Homeland Security and the DOJ, and marveled that DHS, under the auspices of ICE, would deport an alien regardless of the prejudice to criminal prosecution and in flagrant violation of the Bail Reform Act, especially in light of case law, statutes and DHS’s own regulations which would seemingly permit guide the resolution of how to proceed when there are pending immigration and criminal proceedings. Rejecting all of the Government’s rather weak attempts to distinguish the case from Trujillo and Ventura, the Court cited its grave concerns over the apparent denial of defendant’s due process rights by the machinations of DHS and ICE.

The Court did more than chastise the government for attempting to simultaneously pursue civil and criminal remedies despite the constraints of law and immigration regulations, however. In anticipation of an order of dismissal of the criminal indictment, the government requested a dismissal without prejudice, and a stay in order to seek an appeal.The Court was having none of this, observing quite correctly that dismissal without prejudice would frustrate the very purpose of dismissal, which was to force the government to make a choice: prosecution or removal.The Court also rejected the request for a stay, and ordered the government to make a decision either to release the defendant from ICE custody and proceed with the criminal case, or to retain the defendant in ICE custody and proceed with removal.

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