United States District Court, S.D. Mississippi.
Carlton W. Reeves, District Judge.
MEMORANDUM OPINION AND ORDER
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.
United States has charged Melecia Baltazar-Sebastian with one
count of misusing a Social Security number. It arrested her
and promptly brought her before a United States Magistrate
Judge for a detention hearing. After considering the
parties' evidence, their arguments, and the applicable
law, the Magistrate Judge ordered Baltazar-Sebastian to be
released until her trial. The Order required
Baltazar-Sebastian to remain in the Southern District of
appealed the Magistrate Judge's Order. That would
normally be the end of the matter. Here, however, an agency
within the United States Department of Homeland Security -
Immigration and Customs Enforcement (ICE) - decided that the
Order does not apply to it. ICE took custody of
Baltazar-Sebastian and transported her to a detention
facility in Louisiana for deportation proceedings.
through her attorney, filed a series of motions in this Court
objecting to the government's circumvention of the
Magistrate Judge's Order. Two hearings followed. All of
the briefs and arguments concern the same question: does
federal law permit ICE to override the Magistrate Judge's
Order releasing Baltazar-Sebastian on bond?
reasons discussed below, the answer is “no.” In
the absence of a statute indicating that Congress authorized
ICE to circumvent the Magistrate Judge's Order, and
without appealing that Order, ICE was not permitted to move
Baltazar-Sebastian to Louisiana. While ICE may continue
removal proceedings, the defendant is required to remain in
this Judicial District under bond conditions where she and
her attorney can prepare for trial.
the Court affirms once more the pretrial release of
Baltazar-Sebastian subject to conditions determined by the
Magistrate Judge. Once the criminal proceedings regarding
this defendant are finished, this Court's role in the
matter is complete, and the Executive Branch will then be
free to detain her for removal proceedings.
Baltazar-Sebastian was born in Guatemala in 1979. The facts
behind her relocation to Mississippi are not known at this
time, but it is clear that she made a home in this state. She
lived in Morton, Mississippi, raised a family, and found a
faith community at the Catholic Church of Saint Martin of
also goes by “Amparo Sanchez.” In Spanish,
“amparo” means “refuge” or
“protection.” United States v. Fowlie,
24 F.3d 1059, 1064 (9th Cir. 1994); A. S. (Widow) v.
Advance Am. Diving, No. 2007-LHC-505, 2008 WL 10656987,
at *4 n.2 (Dep't of Labor Apr. 11, 2008). The record does
not explain the origin of Baltazar-Sebastian's use of
this name. Future proceedings may resolve whether that was
the name she gave to the chicken processing plant that
employed her, whether it is her nickname, or something else.
2017, the Division of Children Services of the U.S.
Department of Health and Human Services Office of Refugee
Settlement released Baltazar-Sebastian's then 17-year-old
daughter, also named Melecia, into her mother's care
under the Homeland Security Act of 2002 and the William
Wilberforce Trafficking Victims Protection Reauthorization
Act of 2008. Beyond raising and educating her daughter,
Baltazar-Sebastian was required to ensure that her daughter
appeared at all immigration proceedings. There is no evidence
of non-compliance in the record. Baltazar-Sebastian bought a
car in 2018, secured a job, and had no criminal history to
speak of until August 7, 2019.
day, more than 600 federal agents conducted immigration
enforcement actions at six chicken processing plants in
central Mississippi. Baltazar-Sebastian was one of 680
persons taken into custody. Two weeks later, a federal grand
jury in the Southern District of Mississippi indicted her for
one count of misusing a Social Security number. There have
been 118 other indictments filed in this District as a result
of the August 7 enforcement actions.
September 3, 2019, a detention hearing was held before
Magistrate Judge Linda R. Anderson. As in each detention
hearing in this District, the government was represented by
the United States Attorney's Office. Counsel for
Baltazar-Sebastian provided evidence through documents and
the testimony of three witnesses regarding her client's
residence, church fellowship, commitment to care for her
daughter, and daughter's school records. Judge Anderson
concluded that Baltazar-Sebastian was not a danger to the
community or a flight risk. Accordingly, Judge Anderson
issued an Order releasing Baltazar-Sebastian on bond subject
to specific conditions, including that she “remain in
the Southern District of Mississippi at all times during the
pendency of these proceed-ings unless special permission is
obtained from the Court.” Docket No. 14 at 2. The
government did not appeal Judge Anderson's Order.
was not released. ICE immediately took her into custody and
transferred her to a holding center in Louisiana. For an
extended period of time, Baltazar-Sebastian's whereabouts
were unknown to her daughter and her attorney.
Baltazar-Sebastian was not able to communicate with her
attorney about her case. On September 13, 2019, she appeared
before an Immigration Judge in Louisiana. The hearing was
continued to give her time to find an immigration attorney.
September 25, 2019, in this criminal case, the United States
filed a Motion for Writ of Habeas Corpus Ad Prosequendum to
ensure that Baltazar-Sebastian would be present at a hearing
before this Court. The motion was granted by Magistrate Judge
F. Keith Ball. Counsel for Baltazar-Sebastian then filed two
motions of her own: (1) to set aside the Writ, and (2) to
clarify her client's conditions of release. Counsel
argued that because Baltazar-Sebastian had been released on
bond by the Magistrate Judge, her continued detention by ICE
hearing was held on October 15, 2019. Baltazar-Sebastian
asked the Court to enforce Judge Anderson's Order of
Release. This Court granted Baltazar-Sebastian's request
and promised a detailed written order. The United States'
motion for reconsideration followed shortly thereafter.
Another hearing was held on November 18, 2019, this time with
representatives from the United States Attorney's Office,
the Department of Justice (Main Justice), and
The Court's full ruling follows.
case requires the Court to analyze the Bail Reform Act of
1984 (BRA), 18 U.S.C. § 3141 et seq., and the
Immigration and Nationality Act of 1965 (INA), 8 U.S.C.
§ 1101 et seq.
The Bail Reform Act
our society liberty is the norm, and detention prior to trial
or without a trial is the carefully limited exception.”
United States v. Salerno, 481 U.S. 739, 755 (1987).
Congress understood this when it enacted the BRA, which
provides that a “judicial officer shall order the
pretrial release” of a person charged with a federal
crime, “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.” 18 U.S.C. § 3142(b).
“The word ‘shall' is mandatory in
meaning.” United States v. Graves, 908 F.3d
137, 141 (5th Cir. 2018), as revised (Nov. 27, 2018)
(citing Valdez v. Cockrell, 274 F.3d 941, 950 (5th
Cir. 2001)). Pursuant to this language, “the
presumption is release absent a demonstration that the
defendant is likely to flee or is a danger to the
community.” United States v. Espinoza-Ochoa,
371 F.Supp.3d 1018, 1020 (M.D. Ala. 2019) (citation omitted).
expressly contemplates pretrial release for aliens. See
United States v. Adomako, 150 F.Supp.2d 1302, 1304 (M.D.
Fla. 2001). Section 3142(d) of the Act provides that if a
judicial officer determines that an alien “may flee or
pose a danger to any other person or the community, then the
judicial officer shall order the temporary detention of such
person in order for the attorney for the government to notify
the appropriate official of the Immigration and
Naturalization Service.” United States v.
Trujillo-Alvarez, 900 F.Supp.2d 1167, 1174 (D. Or. 2012)
(citing 18 U.S.C. § 3142(d)) (quotation marks and
emphasis omitted). This temporary detention may not exceed 10
days. 18 U.S.C. § 3142(d). The statute continues,
“[i]f the 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.” Id.
“The ordinary meaning of notwithstanding is in spite
of, or without prevention or obstruction from or by.”
N.L.R.B. v. SW General, Inc., 137 S.Ct. 929, 939
(2017) (quotation marks and citations omitted). The use of
“notwithstanding” in a statute “shows which
provision prevails in the event of a clash.”
Id. (citing Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 126-27
other section in the BRA addresses aliens, nor are there
special or additional conditions placed on such persons.
Congress chose not to make any other distinction between
citizens and aliens. Outside of § 3142(d), Congress
required that detainees be treated alike.
The Immigration and Nationality Act
illegal alien is detained under the INA to facilitate his
removal from the country.” United States v.
Vasquez-Benitez, 919 F.3d 546, 553 (D.C. Cir. 2019)
(citing 8 U.S.C. § 1231(a)(2)).
1226(a) of the INA states that “an alien may be
arrested and detained pending a decision on whether the alien
is to be removed from the United States.” 8 U.S.C.
§ 1226(a). Though § 1226(a) generally makes an
alien's detention permissive, § 1226(c) provides
specific instances when continued physical custody of an
alien is mandated. Id. § 1226(a), (c). For
example, if an alien has been convicted of committing an
aggravated felony within the United States, then §
1226(c) requires detention. Id. §
INA, Congress instructed the Executive Branch to remove an
alien from the United States within 90 days from when the
alien is subject to a removal order. Id. §
1231(a)(1)(A). This 90-day period is known as the
“removal period.” The removal period begins to
run on the latest of the following:
(i) The date the order of removal becomes administratively
(ii) If the removal order is judicially reviewed and if a
court orders a stay of the removal of the alien, the date of
the court's final order.
(iii) If the alien is detained or confined (except
under an immigration process), the date the alien is
released from detention or confinement.
Id. § 1231(a)(1)(B) (emphasis added).
defendant released on conditions of pretrial supervision is
deemed “confined” because she is subject to
restraints not shared by the general public. See Hensley
v. Mun. Ct., 411 U.S. 345, 351 (1973). It follows that
because an alien released on pretrial bond is still
technically “confined, ” the 90-day removal
period for such a defendant has yet to begin. While an
Article III criminal proceeding is ongoing, therefore, ICE is
under no time constraint to deport the alien-defendant.
also authorizes the Executive Branch to establish regulations
to enforce the statute and “all other laws relating to
the immigration and naturalization of aliens . . . .” 8
U.S.C. § 1103(a)(1), (3). Under this authority, the
Executive Branch has issued several regulations, including
one commonly known as the “ICE detainer.” The
“detainer serves to advise another law enforcement
agency that the Department seeks custody of an alien
presently in the custody of that agency, for the purpose of
arresting and removing the alien.” 8 C.F.R. §
287.7(a). The purpose of an ICE detainer, then, is to secure
and remove an alien.
does not, however, have authority to sidestep the BRA and
detain a defendant “for the sole purpose of ensuring
[the alien's] presence for criminal prosecution.”
United States v. Soriano Nunez, 928 F.3d 240, 245
(3d Cir. 2019); see also Vazquez-Benitez, 919 F.3d
further INA regulations are pertinent to our case. First, 8
C.F.R. § 215.2(a) provides that “[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.” Section
215.3, in turn, provides that departure from the United
States of “any alien who is needed in the United States
. . . as a party to any criminal case under investigation
or pending in a court in the United States” is deemed
prejudicial. 8 C.F.R. § 215.3(g). This regulation then
clarifies that an alien who is party to a pending criminal
case “may be permitted to depart from the United States
with the consent of the appropriate prosecuting authority,
unless such alien is otherwise prohibited from departing
under the provisions of this part.” Id.;
see also Trujillo-Alvarez, 900 F.Supp.2d at 1178-79.
these regulations together indicates that by pursuing a
criminal case against an alien, the Executive Branch itself
has determined that an ongoing criminal proceeding takes
priority over removal. Once a criminal proceeding is
complete, removal is no longer prejudicial to the United
States' interests and the Department of Homeland Security
is free to deport the individual subject to a final removal
the district court enters an order in a case, we expect the
affected persons to abide by the order, ” United States
Attorney Robert K. Hur said a few weeks ago.
order issued by a court with jurisdiction over the subject
matter and person must be obeyed by the parties until it is
reversed by orderly and proper proceedings.” Matter
of Jones, 966 F.2d 169, 173 (5th Cir. 1992) (citing
Maness v. Meyers, 419 U.S. 449, 459 (1975)).
“Trial judges and opposing litigants have a right to
expect that the court's orders will be carefully followed
in order that the business of the court may be handled
expeditiously and fairly.” Woods v. Burlington N.R.
Co., 768 F.2d 1287, 1290 (11th Cir. 1985), rev'd
on other grounds, 480 U.S. 1 (1987). When a party
believes an order is incorrect, its remedy is to appeal,
“but, absent a stay, [it] must comply promptly with the
order pending appeal.” Matter of Jones, 966
F.2d at 173 (citation omitted).
courts have inherent power to enforce “their lawful
mandates.” Chambers v. NASCO, Inc., 501 U.S.
32, 43 (1991) (citations omitted). These powers are
“governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so
as to achieve the orderly and expeditious disposition of
cases.” Id. (citation omitted). A
noncom-pliant party risks fines, sanctions, or even
incarceration until compliance is achieved. See,
e.g., Nelson v. United States, 201 U.S. 92,