A district court’s order granting a criminal defendant bail under the Bail Reform Act (“BRA”), doesn’t preclude immigration authorities from then detaining that person under the Immigration and Naturalization Act (“INA”). United States v. Lett, No. 18-749-cr, __ F. 3d__, 2019 WL 6752763 (Dec. 12, 2019).

The Second Circuit joins the Third, Sixth, and D.C. Circuits and holds “that immigration authorities may lawfully detain a criminal defendant ordered to be released under the BRA  pursuant to their authority under the INA to detain aliens seeking admission into the United States who are not ‘clearly and beyond a doubt entitled to be admitted[.]’”United States v. Lett, 2019 WL 6752763 at *1, *2 (2d Cir. Dec. 12, 2019) [18-749_Documents] (quoting 8 U.S.C. § 1225(b)(2)(A)); see also 18 U.S.C. § 3142 (bail reform act); 8 U.S.C. § 1101, et seq. (immigration and naturalization act).

Several district courts in this Circuit and around the country had held “that pretrial release under the BRA forecloses detention under the INA” — including the district court in Lett’s case.  2019 WL 6752763 at *3.  But the Circuit holds to the contrary. It rejects the argument that a person granted bail under the Bail Reform Act (in a criminal case) can’t be detained for a concurrent removal proceeding (by immigration authorities). And the Circuit rejects the argument that a defendant’s detention pending removal warrants dismissal of the criminal indictment.

1. Background

Keston Lett, a citizen of Trinidad and Tobago, was arrested at JFK Airport after about 2.12 kilograms of cocaine was found in his suitcase. He was paroled into the United States for criminal prosecution and taken into the custody of the Bureau of Prisons (“BOP”), and the government filed a criminal complaint.  “Meanwhile, United States Immigration and Customs Enforcement (‘ICE’) lodged an immigration detainer against him.” A grand jury later returned a two-count indictment charging him “with importing cocaine and possessing cocaine with intent to distribute in violation of 21 U.S.C. §§ 952(a), 841(a).” 2019 WL 6752763 at *1.

The district court granted Lett bail, under the Bail Reform Act (“BRA”), 18 U.S.C. § 3142, in the criminal case. “The government did not appeal this ruling and agreed to release Lett from BOP custody.” Id. But, pursuant to the ICE detainer, the BOP transferred him “to an ICE detention facility in New Jersey.” ICE then started removal proceedings because “Lett was an inadmissible alien subject to removal as a controlled substance trafficker,” under 8 U.S.C. § 1182(a)(2)(C)(i). Lett, 2019 WL 6752763 at *1.

Lett then made a motion to the district court “to dismiss the indictment in his criminal case, arguing that his continued detention by ICE violated the BRA.” Id.  The district court ruled that, under the BRA, the government had to make a choice: “‘to either … prosecute … Mr. Lett or proceed with removal proceedings to deport him, one or the other.’” Id. After the government informed the district court that ICE wouldn’t release Lett from custody,  “the district court issued an order dismissing the indictment with prejudice. This appeal followed.” Id.

2. Second Circuit holds “there is no statutory conflict between the detention-and-release provisions of the BRA and the INA.”

The Circuit concludes that the BRA and the INA give the government separate, and independent, authority to detain a criminal defendant who is also an alien. Lett, 2019 WL 6752763 at *2 (“The BRA and the INA … serve different purposes, govern separate adjudicatory proceedings, and provide independent statutory bases for detention.”).

The Circuit states that, under the BRA, a court may order a person charged criminally detained, “if …, after a hearing,” it finds “‘that no condition or combination of conditions will reasonably assure the appearance of the [defendant] . . . and the safety of any other person and the community[.]’” Id.  (quoting 18 U.S.C. § 3142(e)(1)).

But, “[s]eparately,” the INA, 8 U.S.C. § 1101, et seq., “provides that an alien seeking admission into the United States ‘shall be detained’ pending removal proceedings unless that alien is ‘clearly and beyond a doubt entitled to be admitted[.]’” 2019 WL 6752763 at *2 (quoting 8 U.S.C. § 1225(b)(2)(A) (removal of inadmissible arriving aliens)).

According to the Circuit, therefore, “[t]he district court’s bail release order under the BRA … did not preclude the government from detaining Lett pursuant to the INA as an inadmissible alien subject to removal.” 2019 WL 6752763 at *3. The Circuit vacated the district court’s order dismissing the indictment and remanded “with instructions for the district court to reinstate the indictment against Lett.” Id. at *5.

However, the Circuit didn’t rule on Lett’s “pretext” argument — “that the government’s decision to initiate administrative proceedings and to detain him pursuant to the INA was pretextual and intended to secure his appearance in the criminal case.” Id. at *4. It found that the issue was waived because the district court did not address it and Lett argued below that the district court didn’t need to address it. Id.