United States v. Ilma Soriano Nunez

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 18-2341

______________

UNITED STATES OF AMERICA

v.

ILMA ALEXANDRA SORIANO NUNEZ,

Appellant

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 5-18-cr-00040-001)

District Judge: Honorable Joseph F. Leeson, Jr.

______________

Argued May 21, 2019

______________

Before: McKEE, SHWARTZ, and FUENTES, Circuit

Judges.

(Filed: July 2, 2019)

Melanie B. Wilmoth

Robert A. Zauzmer [ARGUED]

Office of the United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Jose C. Campos [ARGUED]

Hugh Campos

1845 Walnut Street

Philadelphia, PA 19103

Counsel for Appellant

______________

OPINION

______________

SHWARTZ, Circuit Judge.

Ilma Alexandra Soriano Nunez was charged with

various crimes and appeared for a bail hearing. Conditions of

release were set under the Bail Reform Act (“BRA”).

Thereafter, Immigration and Customs Enforcement (“ICE”)

lodged and executed a detainer, and she was detained for

removal proceedings. Because her detention for removal

proceedings under the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1226(a)(1), does not conflict with the

order granting release in connection with her criminal case

under the BRA, 18 U.S.C. § 3142, the District Court declined

to dismiss the indictment and rejected Soriano Nunez’s request

2

that it rely on the BRA to order her release from ICE custody.

We lack jurisdiction over the ruling denying the request to

dismiss the indictment and will dismiss that aspect of the

appeal. We do, however, agree with the Court’s bail ruling and

will affirm that part of its order.

I

A grand jury indicted Soriano Nunez for passport fraud,

18 U.S.C. § 1542; making a false representation of United

States citizenship, 18 U.S.C. § 911; using a false social security

number, 42 U.S.C. § 408(a)(7)(B); and producing a state

driver’s license not issued for her use, 18 U.S.C. § 1028(a)(1),

(b)(1)(A), and (2). Soriano Nunez surrendered and was

brought before a Magistrate Judge. She was then temporarily

detained under 18 U.S.C. § 3142(d), a provision of the BRA

that allows for, among other things, the ten-day pretrial

detention of non-citizens who may pose a flight risk or danger

so ICE may take them into custody.1 ICE lodged a detainer.

Twelve days later, a different Magistrate Judge arraigned

Soriano Nunez, denied the Government’s motion for pretrial

detention under 18 U.S.C. § 3142(e), and set conditions for her

release. The District Court denied the Government’s motion

to revoke the order. Thereafter, ICE executed its detainer,

taking Soriano Nunez into custody for her to appear for

removal proceedings.2

1

As discussed herein, the ten-day detention period may

also be invoked to allow state and local authorities to take

persons on release into custody. 18 U.S.C. § 3142(d).

2

Soriano Nunez is allegedly removable because she is

an alien not admitted to the United States and she falsely

represented that she was a citizen in violation of 8 U.S.C.

3

While in ICE custody, Soriano Nunez moved to dismiss

her indictment or obtain release from detention, arguing that

§ 3142(d) gives the United States “the choice of [either] taking

the Defendant into [ICE] custody during the ten-day period and

proceeding with removal or continuing with the criminal

prosecution in which case the BRA controls.” App. 47. The

District Court denied Soriano Nunez’s motion to dismiss or for

release, holding that the INA, 8 U.S.C. § 1226(a)(1), allowed

ICE to detain Soriano Nunez during the pendency of removal

proceedings notwithstanding the parallel criminal action, and

her detention therefore did not conflict with the BRA. Soriano

Nunez appeals.

II3

As a threshold matter, we must address the scope of our

jurisdiction over Soriano Nunez’s appeal. To the extent

Soriano Nunez seeks review of the order denying her motion

to dismiss the indictment, we lack jurisdiction. Generally, our

jurisdiction is limited to final judgments. An order denying

dismissal of an indictment is not a “final judgment of the

district court.” 28 U.S.C. § 1291. “Final judgment in a

criminal case means sentence. The sentence is the judgment.”

United States v. Rodriguez, 855 F.3d 526, 530 (3d Cir. 2017)

(quoting Berman v. United States, 302 U.S. 211, 212 (1937)).

Moreover, none of the grounds for interlocutory appeal in a

criminal case apply here. See, e.g., Heltoski v. Meanor, 442

U.S. 500, 508 (1979) (recognizing Speech or Debate Clause

§ 1182(a)(6)(A)(i) and (C)(ii). Removal proceedings are

ongoing.

3

The District Court had jurisdiction under 18 U.S.C.

§ 3231.

4

immunity as a legitimate ground to appeal denial of a motion

to dismiss an indictment); Abney v. United States, 431 U.S.

651, 662 (1977) (hearing appeal of motion to dismiss

indictment on double jeopardy grounds); United States v.

Mitchell, 652 F.3d 387, 392-93 (3d Cir. 2011) (setting forth the

required elements of an appealable collateral order). Thus, we

must dismiss her appeal to the extent it seeks review of the

District Court’s refusal to dismiss her indictment.

We do, however, have jurisdiction to review the ruling

denying Soriano Nunez’s claim that her BRA release order

forecloses her ICE detention. She argues that the BRA, 18

U.S.C. § 3142, provides the sole means to release or detain a

criminal defendant and that the District Court erred in refusing

to extend its release order to bar her ICE detention. The BRA

gives us jurisdiction to hear “[a]n appeal from a release or

detention order, or from a decision denying revocation or

amendment of such an order.” 18 U.S.C. § 3145(c). Here,

Soriano Nunez essentially challenges the Court’s decision to

deny her request to enforce its BRA order. Put differently, she

asks us to review the Court’s rejection of her assertion that the

BRA order requires her release from ICE custody. To the

extent Soriano Nunez challenges the enforcement of a BRA

order, we have jurisdiction over this appeal. Our review over

whether the BRA requires Soriano Nunez’s release is plenary.

United States v. Perry, 788 F.2d 100, 104 (3d Cir. 1986).

5

III

A

To decide this appeal, we must examine both the BRA

and the INA’s detention provisions. Congress passed the BRA

to address whether and under what circumstances a district

court may release a defendant pending trial. See United States

v. Salerno, 481 U.S. 739, 742-43 (1987). It was enacted to

ensure “all persons, regardless of their financial status, shall

not needlessly be detained . . . pending appeal, when detention

serves neither the ends of justice nor the public interest.”

United States v. Provenzano, 605 F.2d 85, 87 n.13 (3d Cir.

1979) (quoting Bail Reform Act of 1966, Pub. L. No. 89-465

§ 2, 80 Stat. 214, 214 (1966)). The BRA thus requires the

pretrial release of defendants unless “no condition or

combination of conditions will reasonably assure the

appearance of the person as required and the safety of any other

person and the community.” 18 U.S.C. § 3142(e)(1).

The BRA allows a court to temporarily detain persons

not lawfully admitted to the United States, as well as

individuals who are on pretrial or post-conviction release on

other federal, state, or local charges, so that immigration and

other officials can take custody of such individuals before BRA

conditions of release are set. 18 U.S.C. § 3142(d). To this end,

the BRA directs judicial officers to:

order the detention of such person, for a period

of not more than ten days . . . and direct the

attorney for the Government to notify the

appropriate court, probation or parole official, or

State or local law enforcement official, or the

6

appropriate official of the Immigration and

Naturalization Service. If 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. Other than during this temporary detention period,

individuals on release arising from other offenses and non-

citizens are treated the same as other pretrial criminal

defendants under the BRA.4 See, e.g., United States v. Santos

Flores, 794 F.3d 1088, 1091 (9th Cir. 2015) (stating that the

possibility of removal by immigration authorities cannot

provide the sole basis for denial of BRA release). The failure

of a government agency to take custody of such person within

the temporary detention period means that the court proceeds

to apply the BRA to determine whether there is any condition

or combination of conditions that will ensure the defendant’s

presence at trial and the safety of the community. United States

v. Vasquez-Benitez, 919 F.3d 546, 553 (D.C. Cir. 2019).5

4

Thus, the presence of an ICE detainer and the threat of

potential removal alone are not sufficient to deny BRA pretrial

release. See United States v. Ailon-Ailon, 875 F.3d 1334,

1338-39 (10th Cir. 2017).

5

An agency’s inaction does not bar it from later taking

custody of the individual pursuant to its lawful authority.

7

B

The INA, which governs immigration, gives the

Attorney General the power to issue warrants for the arrest and

seek the detention or release of an alien “pending a decision on

whether [he or she] is to be removed from the United States.”6

8 U.S.C. § 1226(a). Thus, while the BRA aims to ensure a

defendant’s presence at trial, the INA uses detention to ensure

an alien’s presence at removal proceedings. Vasquez-Benitez,

919 F.3d at 552-54. Where an alien is in the custody of another

governmental entity, ICE officers may issue a detainer. See 8

U.S.C. §§ 1103(a)(3), 1357; 8 C.F.R. § 287.7(a). Via the

detainer, ICE informs the agency that it “seeks custody” of

such an alien “for the purpose of arresting and removing” the

alien. 8 C.F.R. § 287.7(a). The INA permits an alien’s

detention, see, e.g., 8 U.S.C. § 1226(a), but not for the sole

purpose of ensuring her presence for criminal prosecution.7

6

In some instances, ICE detention is mandatory. For

example, aliens who have committed certain criminal offenses

must be detained pending removal. See 8 U.S.C. § 1226(c)(1).

7

An alien may seek district court review of a detention

order in limited circumstances pursuant to 28 U.S.C. § 2241.

See, e.g., Chavez-Alvarez v. Warden York County Prison, 783

F.3d 469, 470-71 (3d Cir. 2015) (ordering the grant of a § 2241

habeas petition challenging ICE detention under 8 U.S.C.

§ 1226(c) pending removal proceedings); Sylvain v. Att’y

Gen., 714 F.3d 150, 153, 155 (3d Cir. 2013) (reviewing grant

of a § 2241 habeas petition seeking release from ICE detention

under 8 U.S.C. § 1226(c)).

8

C

Soriano Nunez asserts that the BRA and the INA

conflict insofar as the INA allows for the detention of a

criminal defendant who has been granted release under the

BRA. No court of appeals that has examined this assertion has

concluded that pretrial release precludes pre-removal

detention. See Vasquez-Benitez, 919 F.3d at 553 (“Congress

has never indicated that the BRA is intended to displace the

INA.”); United States v. Veloz-Alonso, 910 F.3d 266, 269 (6th

Cir. 2018) (“[N]othing in the BRA prevents other government

agencies or state or local law enforcement from acting pursuant

to their lawful duties.”); see also United States v. Ventura, 747

F. App’x 20, 22 (2d Cir. 2018) (“Neither side asserts that the

BRA categorically prevents the Department of Homeland

Security . . . from exercising its independent statutory authority

to detain an arriving noncitizen pending removal.”). We agree.

Instead, “[d]etention of a criminal defendant pending

trial pursuant to the BRA and detention of a removable alien

pursuant to the INA are separate functions that serve separate

purposes and are performed by different authorities.”

Vasquez-Benitez, 919 F.3d at 552. Congress established laws

governing the release or detention of criminal defendants, and

the Executive has the authority to invoke those laws to ensure

a defendant’s presence at criminal proceedings and the

community’s safety. 18 U.S.C. § 3142(e)(1). Congress also

gave the Executive authority to detain and remove suspected

aliens in furtherance of its enforcement of the immigration

laws. See 8 U.S.C. § 1231(a); Demore v. Kim, 538 U.S. 510,

523 (2003).

9

These laws serve different purposes and can coexist for

four reasons. First, the text of 18 U.S.C. § 3142(d) does not

compel a different conclusion. The text has a notice provision

designed to give other agencies an opportunity to take custody

of a defendant before a BRA release order is issued. 18 U.S.C.

§ 3142(d). By providing these other agencies an opportunity

to take custody of such persons, the BRA effectively gives

respect to pending cases and allows those officials to act before

bail is set in the federal case. See United States v. Villatoro-

Ventura, 330 F. Supp. 3d 1118, 1140-41 (N.D. Iowa 2018).

The BRA’s temporary detention scheme thus reflects

Congress’ recognition that immigration authorities and state

sovereigns have separate interests. Had Congress wanted to

limit a federal court’s authority to consider state and local

interests, Congress would not have included § 3142(d).

Villatoro-Ventura, 330 F. Supp. 3d at 1139.

In addition, if immigration or other authorities choose

to detain the defendant during the ten-day period, then such

detention eliminates the court’s “need to determine whether to

release the defendant in the criminal case pursuant to the other

provisions under the BRA. [Section 3142(d)] does not go on

to say that the criminal case must end if ICE pursues

deportation[,]” United States v. Pacheco-Poo, No. 18-CR-109-

CJW-MAR, 2018 WL 6310270, at *6 (N.D. Iowa Dec. 3,

2018), or other authorities continue their prosecutions. In the

immigration context, as the District Court aptly stated,

the text of § 3142(d) does not suggest that it

overrides the detention provisions of the INA.

Rather, it instructs the district court that, after the

temporary detention period, it should proceed to

a determination of pretrial release under the

10

BRA. Nothing in the text of the BRA prevents

ICE from enforcing a detainer or taking a

defendant into custody for removal proceedings

after an order of release under the BRA.

App. 15-16.

Second, nothing in the BRA gives a district court the

authority to compel another sovereign or judge in federal

administrative proceedings to release or detain a defendant.

The BRA applies to federal criminal proceedings, and

detention and release decisions in those cases are subject to the

BRA. Detention and release decisions by immigration and

other government officials are subject to different statutory

frameworks.

Third, detention for removal purposes does not infringe

on an Article III court’s role in criminal proceedings. In a

criminal case, the court is tasked with deciding whether there

are conditions of release that will ensure the defendant’s

appearance and the safety of the community. Vasquez-

Benitez, 919 F.3d at 550-51. It carries out this duty without

regard to whether a separate entity with different duties may

reach a different conclusion. In an immigration case, those

authorities are focused on enforcing the immigration laws and

nothing in the BRA prevents them from acting pursuant to their

lawful duties, which include detaining aliens for removal

purposes. Veloz-Alonso, 910 F.3d at 269 (citing 8 U.S.C.

§ 1231(a)(2)).

Fourth and relatedly, nothing in either the INA or the

BRA gives a court the authority to require the Executive to

choose which laws to enforce. Pacheco-Poo, 2018 WL

11

6310270, at *5. Like our sister courts of appeals, we too must

follow the principle that “courts are not at liberty to pick and

choose among congressional enactments, and when two

statutes are capable of co-existence, it is the duty of the courts,

absent a clearly expressed congressional intention to the

contrary, to regard each as effective.” Vasquez-Benitez, 919

F.3d at 553 (quoting Morton v. Mancari, 417 U.S. 535, 551

(1974)); see also Veloz-Alonso, 910 F.3d at 268-69.

Because (1) the BRA explicitly applies only to federal

criminal proceedings, not state or immigration proceedings, (2)

there is no textual conflict between the BRA and the INA, (3)

these statutes serve different purposes, and (4) criminal and

removal processes can proceed simultaneously, Pacheco-Poo,

2018 WL 6310270, at *6, the District Court correctly declined

to hold that Soriano Nunez’s BRA release order mandated her

release from ICE detention.8

IV

For the foregoing reasons, we will dismiss the appeal in

part and affirm in part.

8

The record here does not indicate that the purpose of

ICE detention was to circumvent a district court’s BRA release

order. Ventura, 747 F. App’x at 21. We therefore take no

position on the remedies an alien may have or relief a court in

a criminal case may grant if such evidence were presented.

12