Chief Judge Irizarry recently issued the first EDNY decision holding that once a defendant has been granted pretrial release under the Bail Reform Act, the defendant may not be detained by ICE while his prosecution is pending. In United States v. Rosario Ventura, 17-cr-418, Judge Irizarry held that “the Government must either release Defendant under the bond conditions set in this case and continue the instant prosecution, or dismiss the indictment without prejudice, forego its illegal reentry prosecution, and proceed with Defendant’s removal.” The decision is available here. (As we’ve reported, Southern District Judge Caproni recently issued a similar decision.)
Mr. Rosario Ventura met the bail conditions set by a magistrate judge pursuant to the Bail Reform Act. Immediately after his release from criminal custody, however, ICE detained Mr. Rosario Ventura and held him in immigration custody. He then filed a motion to compel ICE to release him pursuant to his bail conditions or, in the alternative, to dismiss the indictment (charging illegal reentry) without prejudice.
Relying on United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), and its progeny, Judge Irizarry held that the Bail Reform Act exclusively governs whether the government may detain a removable noncitizen pending criminal trial. See Rosario Ventura, slip op. at 4. The government attempted to distinguish Trujillo–Alvarez by arguing that it does not preclude immigration detention when criminal prosecution and removal proceedings are “proceeding on parallel tracks.” Id. at 4. Judge Irizarry rejected this argument, concluding that “once prosecution is the Government’s chosen course of action, the Executive may not attempt to obviate the bond determination . . . by enforcing the ICE detainer.” Id. at 6. As the Chief Judge explains: “the government must now make a choice. It can continue down the path it originally chose, namely to prosecute Defendant, or it can seek Defendant’s removal from the United Sates and continue his detention from ICE. It cannot do both.”
For discussion of the strategic choices and opportunities that this decision presents, see our discussion here of Judge Caproni’s opinion in Galitsa.
N.B.: Mr. Rosario Ventura is represented by Michelle Gelernt and Isaac Wheeler of the Federal Defenders of New York.