In the first decision of its kind within the Second Circuit, Judge Caproni in the SDNY held that once a defendant has met the conditions of release imposed under the Bail Reform Act, ICE cannot detain that defendant unless it is actually taking steps to remove him. You can read the opinion in United States v. Galitsa, 17 Cr. 324 (VEC), here.
Mr. Galitsa met the bail conditions set by Magistrate Judge Fox at presentment. Because ICE had filed a detainer, he was transferred to ICE custody rather than released after meeting his bail conditions. Six days later, the government had Mr. Galitsa transferred back to the MDC Brooklyn pursuant to a writ of habeas corpus ad prosequendum. He moved to dismiss the indictment or, in the alternative, to compel his release from custody. The government conceded that, since detaining Mr. Galitsa, ICE had taken no steps to effectuate his removal and, indeed, was precluded by regulation from taking such steps until after the conclusion of the prosecution and any sentence.
Judge Caproni held that the Bail Reform Act is the exclusive means by which the government can detain an individual pending trial in a criminal case. Relying on United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), the Court found that it was “obvious that ICE is not holding Mr. Galitsa to remove him from the country.” Op. at 9. “[W]hile the Government may say that ICE is not detaining Galitsa for the purpose of this criminal proceeding[,] the facts make clear that there can be no other reason for his detention at present.” Id. The Court concluded by admonishing the government, after describing its position as a “two-headed monster,” that “[w]hat it cannot do is treat the United States Code like a take-out food menu whereby the Government can mix-and-match from column A (prosecution or removal) and from column B (Bail Reform Act or ICE detention rules). If the Government chooses to prosecute, then it much proceed in accordance with all the rules that govern criminal prosecutions. First and foremost among those rules is the Bail Reform Act.” Id. at 9-10. Saying the government could not have it both ways, the Court gave the government until noon today to either release Mr. Galitsa or dismiss the indictment. He was released in accordance with the conditions of his bail earlier today.
This case is a great reminder that release may still be possible even if your client has an ICE detainer at presentment. Of course, your client’s circumstances may be different than Mr. Galitsa’s, so whether asking for and meeting bail conditions makes strategic sense in a particular case will depend on the particular circumstances of that case. An immigration attorney, or a criminal-immigration specialist, can help you determine the best course of action prior to your client meeting their release conditions.
The case also may be useful in convincing a sentencing judge to subtract time spent in ICE custody from your client’s sentence. The government’s standard response to that request is that the defendant was in administrative custody and was not being held for prosecution. Judge Caproni’s decision discusses the regulation that prohibits ICE from removing a potential defendant in a case under investigation or pending in any court without the approval of the AUSA on the criminal case. See 8 C.F.R. 215.2(a) and 8 C.F.R. 215.3(g). In other words, yes, your client was sitting in immigration detention, but it was not for any immigration purpose. The pre-presentment detention was as a result of the criminal prosecution and thus the time should be subtracted from the sentence imposed to ensure that he does not serve a sentence greater than necessary to affect the statutory sentencing objectives.
NB: Mr. Galitsa is represented by Martin Cohen and Isaac Wheeler of the Federal Defenders of New York.
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