Circuit Court Rules Government Can Detain on Immigration Grounds Pending Prosecution

The triumph of logic over obfuscation

By Andrew R. Arthur on December 18, 2019

The Court of Appeals for the Second Circuit issued a decision last week reinstating an indictment against Keston Lett, a citizen and national of Trinidad and Tobago who was apprehended by U.S. Customs and Border Protection entering the United States with more than two kilograms of cocaine. That decision is a triumph of logic over obfuscation.

CBP paroled Lett into the United States for criminal prosecution, and he was transferred to the custody of the Bureau of Prisons (BOP) in the Department of Justice. A criminal complaint was thereafter filed against him for importing cocaine in violation of federal law, and U.S. Immigration and Customs Enforcement (ICE) issued a detainer against him.

Subsequently, a grand jury issued an indictment charging Lett on the criminal grounds in the complaint. As the District Court order below reveals, on December 17, 2017, the court ordered Lett released on bond with electronic monitoring and travel restrictions. In accordance with the detainer, BOP released Lett to ICE custody. He was placed into removal proceedings on the grounds that he was inadmissible to the United States under section 212(a)(2)(C)(i) of the Immigration and Nationality Act (INA), as a trafficker in a controlled-substance, a ground that does not require a conviction.

As the district court order states:

On December 28, 2017, Defendant [Lett] filed a motion to have the government determine whether it intended to continue to prosecute Defendant, and, if so, to order the government to release Defendant from the custody of [ICE] or, alternatively, to dismiss the indictment.

The circuit court explains that Lett alleged that his immigration detention violated the Bail Reform Act (BRA), 18 U.S.C. § 3142. Subsection (b) therein states that a judicial officer shall order pretrial release of a criminal defendant on conditions "unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community." Under paragraph (e)(1), if a judicial officer decides after a detention hearing that "no condition or combination of conditions will reasonably ensure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial."

Section 235(b)(2)(A) of the INA, on the other hand, states that an alien seeking admission who "is not clearly and beyond a doubt entitled to be admitted" shall be detained for removal proceedings.

On January 26, 2018, the district court ordered ICE to release Lett by February 2, 2018, if the government intended to proceed with the indictment, or the court would dismiss the indictment with prejudice (essentially meaning that Lett could not be tried criminally). On that date, the government informed the court that ICE would not release the alien, and the court dismissed the indictment on February 16, 2018.

The government appealed. The circuit court vacated the district court's order, finding that the BRA and the INA "serve different purposes, govern separate adjudicatory proceedings, and provide independent statutory bases for detention." It concluded that "neither the BRA nor the INA precludes the government from exercising its detention authority pursuant to the other statute," and that the courts lack the authority to make the government choose between criminal prosecution or removal.

Lett had argued that 18 U.S.C. § 3142(d), which directs judicial officers to detain a criminal defendant who is an alien and who may pose a danger or flee for not more than 10 days to give ICE the opportunity to take custody of the alien, is the exclusive avenue for ICE custody under the BRA. The circuit court rejected this interpretation, noting that this subsection is a restriction on the court's release authority, not on the government's authority to detain an alien on immigration grounds.

The circuit court also rejected Lett's emphasis on a specific clause in paragraph (d)(2), which states:

If the [ICE] official fails or declines to take such person into custody during that period, such person shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings.

The circuit court held that this clause "does not preclude the government from detaining a defendant under the INA; it merely clarifies that 'the presence of an ICE detainer and the threat of potential removal alone are not sufficient to deny BRA pretrial release.'" Put more simply, the court explained that pursuant to this provision, "the district court must apply the BRA as it would to any other criminal defendant, notwithstanding the existence of any parallel proceedings."

It also rejected Lett's argument that his detention by ICE was not mandatory, and that ICE could have paroled him under section 212(d)(5) of the INA (which is a form of release from custody that is different from parole into the United States for criminal prosecution) pending his criminal proceedings. The Second Circuit held, correctly, that the even assuming the government had the discretion to parole Lett under this provision, "it was under no obligation to do so." Rather, section 235(b)(2)(A) of the INA allows the government to detain an alien in removal proceedings, "regardless of the alien's bail status in any parallel criminal proceedings."

Lett also asserted that two regulations, 8 C.F.R. §§ 215.2(a) and 215.3(g), prevent the government from removing a defendant while criminal charges are pending, and therefore prevent immigration detention. The circuit court dismissed this argument tersely, holding "these regulations merely prohibit aliens who are parties to a criminal case from departing from the United States voluntarily; they do not affect the government's authority to deport such aliens pursuant to final orders of removal."

Lastly, the Second Circuit dismissed Lett's contention that the government's initiation of removal proceedings, and consequent detention under the INA, was a pretext to ensure that he appeared for his criminal proceedings, because he did not make this argument below, and therefore waived it.

The arguments made by Lett do not appear novel. The Second Circuit noted that the conclusion of the district court below, that pretrial release under the BRA precludes detention under the INA, was similar to conclusions reached by other district court judges in that circuit and others, and that it was joining the Third, Sixth, and D.C. Circuits in ruling to the contrary. It is common for arguments by aliens to gain traction before district-court judges, who only rarely apply the INA, before (in the best case) reversal on appeal.

The provisions, and the restrictions on aliens, in the INA are unique. It was fortunate that the circuit court was able to see through the obfuscation to reach the logical conclusion.