Saturday, July 25, 2015

Case o' The Week: Ninth Revs Up ICE-Breaker - Bail Reform Act not Trumped by Imigration Detainers

Hon. Judges Kozinski and Schroeder
If the United States Attorney’s Office – Article II of the federal government – is unable to control ICE, who can?

  The Ninth Circuit Court of Appeals.

United States v. Santos-Flores, 2015 WL 4480561(9th Cir. July 6, 2013) (Ord.), decision available here.

Players: Order from motions panel of Judges Schroeder, Canby and Kozinski.

Facts: Santos-Flores, a native and citizen of Mexico, was charged with illegal reentry. Id. at *1. When arrested at the border, he presented false IDs and falsely claimed to be a U.S. citizen. Id. He was detained by the magistrate judge and “appealed.” Id. (Ed. Note: Acknowledged that taking up the Mag. Judge decision to the district court is not technically an “appeal,” see 18 USC Sec. 3145(b), but is term used in this Order.) The district court found that if Santos-Flores was released, he would be unlikely to appear at trial because he would be detained and removed by ICE. Id.

Issue(s): Is the existence of an ICE detainer, or the possibility that ICE will issue a detainer and remove an alien, a categorical basis for denial of release under the Bail Reform Act?

Held:We hold that the district court erred in ordering pretrial detention based on the likelihood that, if released pending trial, Santos-Flores would be placed in immigration detention and removed from the United States, pending his appearance for trial.” Id. at *1.

“If the government, by placing Santos–Flores in immigration detention or removing him, jeopardizes the district court's ability to try him, then the district court may craft an appropriate remedy . . . . The court may not, however, substitute a categorical denial of bail for the individualized evaluation required by the Bail Reform Act.” Id. at *3.

Of Note: Is Mr. Santos-Flores a free man, pending his illegal reentry trial? Sadly, no: the Court upheld the district court on other grounds. Mr. Santos’ false I.D.s, false claim to U.S. citizenship, previous failure to appear, violation of supervised release, multiple unlawful entries, and “severity of the potential punishment and strength of evidence against him” made him a “voluntary flight risk.” Id. at *3. Bad facts in this case – but the essential point is that this is an individualized assessment, not a flat ICE-detainer bar. For other alien defendants – and with a different individualized analysis -- the government won’t be able to meet its burden and will be unable to hide behind an ICE hold to seek detention in federal court.

How to Use: The Honorable District Judge Simon (with admirable advocacy from D. Or. AFPD Christopher Schatz) lead this bail trend with the groundbreaking Trujillo-Alvarez decision in 2012. See order here 
   Notably, Trujillo-Alvarez is cited with approval by the panel in the Santos-Flores order. Id. at *3. The Panel in Flores-Sanchez affirms a simple truth that we’ve long argued: if the government doesn’t want our client deported when released on bail, the government can forego reinstatement and removal. Id. at *2. And if the federal government (Article II) can’t manage to control its own federal agency (ICE), the district court can then “craft an appropriate remedy.” Id.
For Further Reading: How often does the Ninth wade in and reverse a detention order? About every two weeks, of late. See United States v. Howard, No. 15-10259 (9th Cir. July 15, 2015) (Ord.), available here. (Note - a big win for NorCal’s own Dan Barton). In Howard, the Ninth reversed a ND Cal judge’s detention order when there were inadequate findings of a crime, or a violation, while on pretrial release. Id. at 1. Both orders came from the same motions panel: Judges Schroeder, Canby, and Kozinski. Id. 

Like Santos-Flores, the Howard order is worth a close read – and particularly Judge Kozinski’s concurrence in the Howard decision. Judge Kozinski questions why the government has unfettered access to witnesses before trial, but the defendant cannot. Id. at *6. “Why isn’t [a defendant] entitled – just as well as the government – to test the witness’s memory and let him know the facts as he [the defendant] remembers them?” Id. (Kozinski, J., concurring). More welcome common sense from the author of “Criminal Law 2.0.”

Steven Kalar, Federal Public Defender, N.D. Cal. Website at

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