United States v. Baltazar-Sebastian ( 2021 )

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 10, 2021
No. 20-60067 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellant,
versus
Melecia Baltazar-Sebastian,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:19-CR-173-1
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.
No. 20-60067
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
2
No. 20-60067
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
3
No. 20-60067
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
4No. 20-60067
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 (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,
5
No. 20-60067
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 the Government’s challenge to the district
court’s interpretation of the interplay of the BRA and INA. Its rulings on
questions of law are, of course, reviewed de novo. See United States v.
Orellana, 405 F.3d 360, 365 (5th Cir. 2005); see also United States v. Vasquez-
Benitez, 919 F.3d 546, 552 (D.C. Cir. 2019) (analyzing de novo all legal
conclusions related to release orders under the BRA and ICE detentions
under the INA).
1.
The Government contends, in passing, that the district court violated
the INA in its enforcement of the September release order. As stated in 8
U.S.C. § 1226(e), “[n]o court may set aside any action or decision by the
Attorney General . . . regarding the detention or release of any alien”. See
also 8 U.S.C. § 1252(g) (in relation to removal proceedings, “no court shall
have jurisdiction to hear any cause or claim by or on behalf of any alien arising
from the decision or action by the Attorney General to commence
proceedings”).
In its October and December orders for Baltazar’s release, the district
court expressly prohibited ICE from retaking custody. According to the
6
No. 20-60067
Government, the court thereby set aside a decision regarding an alien’s
detention.
The court correctly rejected the applicability of §§ 1226(e) and
1252(g) in its December order, explaining it was “not attempting to review
or set aside any decision or action to commence removal proceedings” but
was instead “attempting to enforce the Magistrate Judge’s [September
release] Order”.
2.
More substantively, the Government maintains the court erred in
concluding there is an order of precedence between the BRA and INA, by
deciding that, once the Government began criminal proceedings against
Baltazar, the BRA superseded the INA. The court relied on two textual
grounds.
First, the court concluded: the BRA mandates defendant’s release
whereas the INA grants only discretionary authority to detain. See 18 U.S.C.
§ 3142(b) (“The judicial officer shall order the pretrial release of the person”
unless the person is a flight risk or danger to the community) (emphasis
added); 8 U.S.C. § 1226(a) (“[A]n alien may be arrested and detained
pending a decision on whether the alien is to be removed from the United
States”.) (emphasis added). Second, the court read the BRA to prescribe the
exclusive means for pretrial detention of alien-defendants. See 18 U.S.C.
§ 3142(d) (stating: if an alien is a flight risk or danger to the community, then
the judicial officer “shall order the detention of such person, for a period of
not more than ten days, . . . and direct the attorney for the Government to
notify . . . the appropriate official of the Immigration and Naturalization
Service”). Given § 3142(d) expressly references pretrial detention for alien-
defendants, the court concluded it follows that the usual provisions of the
BRA apply to an alien-defendant if he or she is not a flight risk or danger to
7
No. 20-60067
the community. Therefore, because Baltazar was not deemed a flight risk or
danger to the community, the court concluded the ordinary mandate of
release applied.
Whether the BRA and INA conflict is of first impression in our circuit.
We therefore consider the decisions by the six other circuits which have
addressed the issue. See United States v. Barrera-Landa, 964 F.3d 912 (10th
Cir. 2020); United States v. Pacheco-Poo, 952 F.3d 950 (8th Cir. 2020); United
States v. Lett, 944 F.3d 467 (2d Cir. 2019); United States v. Soriano Nunez,
928 F.3d 240 (3d Cir. 2019); United States v. Vasquez-Benitez, 919 F.3d 546(D.C. Cir. 2019); United States v. Veloz-Alonso, 910 F.3d 266 (6th Cir. 2018).
All of these circuits hold the statutes do not conflict: pretrial release under
the BRA does not preclude pre-removal detention under the INA. Of course,
our court is at liberty to create a circuit split, see Matter of Benjamin, 932 F.3d
293, 298 (5th Cir. 2019) (recognizing its holding conflicts with the “majority
of our sister circuits”); but, for the reasons that follow, we do not do so in
this instance. Instead, we agree with the well-reasoned holdings of our fellow
circuits.
Fundamentally, the BRA and INA concern separate grants of
Executive authority and govern independent criminal and civil proceedings.
See, e.g., Soriano Nunez, 928 F.3d at 245 (“[W]hile the BRA aims to ensure a
defendant’s presence at trial, the INA uses detention to ensure an alien’s
presence at removal proceedings”.); Barrera-Landa, 964 F.3d at 918 (“[T]he
BRA does not give the district court authority to interrupt ICE’s independent
statutory obligations to take custody of [an alien-defendant] once he is
released.”); Vasquez-Benitez, 919 F.3d at 553 (“ICE’s authority to facilitate
an illegal alien’s removal from the country does not disappear merely because
the U.S. Marshal cannot detain him under the BRA pending his criminal
trial.”). Nothing in the text of the BRA or INA evinces any order of
precedence between the statutes.
8
No. 20-60067
In addition, their silence, opposite the district court’s interpretation,
shows the statutes’ working together, not in conflict. See Pacheco-Poo, 952
F.3d at 953 (“Other provisions of the BRA do not preclude removal under
the INA.”); Vasquez-Benitez, 919 F.3d at 553 (“Congress has never indicated
that the BRA is intended to displace the INA.”). Accordingly, the use of
“shall” in the BRA and “may” in the INA must be interpreted in the light
of their separate and independent statutory grants of authority.
Furthermore, the court’s reading of § 3142(d) as the exclusive means
for pretrial detention of alien-defendants inappropriately imports an
exclusivity clause into the text. See Pacheco-Poo, 952 F.3d at 953 (holding
§ 3142(d) “does not mandate that immigration officials detain then and only
then”). Section 3142(d) is a limitation on the district court’s authority to
release an alien-defendant pursuant to the BRA, not on ICE’s authority
pursuant to the INA. See Soriano Nunez, 928 F.3d at 246 (“By providing
these other agencies an opportunity to take custody of such persons,
[§ 3142(d)] effectively gives respect to pending cases and allows those
officials to act before bail is set in the federal case. . . . The BRA’s temporary
detention scheme thus reflects Congress’ recognition that immigration
authorities . . . have separate interests.”). Moreover, § 3142(d) only applies
to defendant-aliens who might flee or pose a danger, a scenario found
inapplicable to Baltazar by the magistrate judge in the September release
order. Allowing detentions under the INA outside of § 3142(d) in no way
disregards this process; it leaves it entirely intact and concerns a different
class of defendants.
3.
Lastly, the Government contests the district court’s conclusion that
ICE violated INA regulations by detaining Baltazar. Under 8 C.F.R.
§ 215.2(a), an alien shall not depart the United States “if [her] departure
9
No. 20-60067
would be prejudicial to the interests of the United States”. As a party to a
pending criminal case, an alien’s departure is deemed prejudicial. 8 C.F.R.
§ 215.3(g). The departure is not prejudicial, however, if the “appropriate
prosecuting authority” provides consent. Id. The court reasoned that,
because consent was not provided for Baltazar’s departure, removing her
from the country would be prejudicial to the United States. And, according
to the court, “if ICE cannot remove her, it cannot detain her for removal
purposes”.
Sections 215.2 and 215.3, however, do not relate to removal. Instead,
they “merely prohibit aliens who are parties to a criminal case from departing
from the United States voluntarily”. Lett, 944 F.3d at 472 (emphasis in
original). In other words, the regulations pertain to actions by an alien, not
the Government. Reading “departure” in this manner follows from the text
of § 215.2(a):
Any departure-control officer who knows or has reason to
believe that the case of an alien in the United States comes
within the provisions of § 215.3 shall temporarily prevent the
departure of such alien from the United States and shall serve
him with a written temporary order directing him not to depart,
or attempt to depart, from the United States until notified of the
revocation of the order.
8 C.F.R. § 215.2(a) (emphasis added). This interpretation is further
confirmed by other provisions in the INA. See, e.g., 8 C.F.R. § 215.4(a)
(allowing alien to contest prevention of his departure). Again, every circuit
to consider the issue agrees the regulations concern an alien’s own actions,
not those of ICE. See Barrera-Landa, 964 F.3d at 923; Lett, 944 F.3d at 472–
73; Pacheco-Poo, 952 F.3d at 953; cf. Lopez-Angel v. Barr, 952 F.3d 1045, 1050
(9th Cir. 2019) (Lee, J., concurring) (“The ordinary meaning of the word
‘departure’ refers to a volitional act. It would be quite strange to say, for
10
No. 20-60067
example, ‘the suspect departed the crime scene when police took him into
custody.’”).
C.
In addition to her statutory interpretation (which mirrors the district
court’s above-discussed position), Baltazar contends: the Executive Branch
violated the separation of powers through ICE’s detention of her; and the
court’s enforcement of the September release order protected her
constitutional right to a fair trial under the Fifth and Sixth Amendments. As
discussed infra, because neither issue has merit, we need not decide whether
either was preserved in district court.
1.
Regarding separation of powers, Baltazar maintains: ICE, inter alia,
“arrogated to itself the authority to disregard the legal effect of an Article III
court’s judgment”; therefore, even if there were statutory authority for
ICE’s actions under the INA, such authority would not nullify a court’s valid
release order. The Government counters, inter alia: the separation-of-
powers issue was not properly preserved for appeal because Baltazar did not
pursue this issue in district court.
Again, because her contention lacks merit, we need not decide
whether Baltazar’s separation-of-powers issue falls within an exception to
unpreserved issues’ being either waived or subject only to plain-error review.
In short, we consider, and reject, the assertion that ICE’s pre-removal
detention of Baltazar violates the separation of powers. See Vasquez-Benitez,
919 F.3d at 552 (“ICE’s detention does not offend separation-of-powers
principles simply because a federal court, acting pursuant to the BRA, has
ordered that same alien released pending his criminal trial.”); Veloz-Alonso,
910 F.3d at 268.
11
No. 20-60067
2.
Concerning the Fifth and Sixth Amendments, the court in its
December order observed that ICE’s detention facilities in Louisiana are
more than 200 miles away from Baltazar’s criminal proceedings in Jackson,
Mississippi—requiring court-appointed defense attorneys to travel a full day
to see their clients. Similar to her separation-of-powers issue, the
Government maintains Baltazar waived her Fifth and Sixth Amendment fair-
trial issue by failing to raise it in district court.
Once again, we need not decide whether the issue is waived or subject
only to plain-error review; the issue is meritless. In referencing the distance
between Jackson, Mississippi, and ICE’s detention facilities in Louisiana, the
court did not explain the import of its observation, or even to what degree, if
any, it was making a factual finding. Moreover, while the commute is
undoubtedly burdensome, the court did not conclude that ICE’s detention of
Baltazar violated her constitutional right to a fair trial, which would include
assistance of counsel. There are, therefore, no reviewable findings or
conclusions on any purported violations of the Fifth and Sixth Amendments.
III.
For the foregoing reasons, the district court’s December 2019 order
precluding ICE from detaining Baltazar pending completion of her criminal
proceedings is VACATED.
12