United States District Court, D. Colorado
ORDER DENYING MOTION TO DISMISS INDICTMENT
Christine M. Arguello, United States District Judge.
matter is before the Court on Defendant Jorge
Ramirez-Arenas's Motion to Dismiss Indictment. (Doc. #
20.) For the reasons discussed herein, the Court denies Mr.
FACTS AND PROCEDURAL HISTORY
Government indicted Mr. Ramirez-Arenas, whom it alleges is
“an alien present in the United States illegally and
unlawfully, ” on two counts related to unlawfully
obtaining and possessing a firearm, in violation of 18 U.S.C.
§§ 922(g)(5) and 922(a)(6), on January 24, 2019.
(Doc. # 1.)
Ramirez-Arenas was arrested and made his initial appearance
before United States Magistrate Judge N. Reid Neureiter on
February 1, 2019. (Doc. ## 4-5.) The Government did not
request a ten-day detention of Mr. Ramirez-Arenas to permit
deportation under 18 U.S.C. § 3142(d)(1)(b) but rather
asked to continue the Court's determination on Mr.
Ramirez-Arenas's detention. See (Doc. # 5.)
February 6, 2019, United States Magistrate Judge S. Kato
Crews conducted a detention hearing and, after hearing
argument from both parties, ordered that Mr. Ramirez-Arenas
be released on bond after an inspection of his residence
under provisions of the Bail Reform Act (“BRA”).
(Doc. # 10.) Pursuant to Magistrate Judge Crews's order,
Mr. Ramirez-Arenas was released on February 11, 2019, on an
unsecured bond of $2, 000 and subject to other conditions.
(Doc. ## 13-15.) The Government did not seek review of
Magistrate Judge Crews's order to release Mr.
Bureau of Immigration and Customs Enforcement
(“ICE”) took custody of Mr. Ramirez-Arenas upon
his release on February 11, 2019, pursuant to 8 U.S.C. §
1226(a). (Doc. # 20 at 2; Doc. # 28 at 2.) The following day,
February 12, 2019, ICE transported Mr. Ramirez-Arenas to the
GEO Detention Facility in Aurora, Colorado, and served him
with a Notice of Custody Determination (Doc. # 20-1) and a
Warrant for Arrest of Alien (Doc. # 20-2). Mr. Ramirez-Arenas
requested “an immigration judge review of [ICE's]
custody determination” when he signed the Notice of
Custody Determination that day. (Doc. # 20-1.) ICE initiated
removal proceedings against him. (Doc. # 28 at 2.)
requested review of his detention by ICE, Mr. Ramirez-Arenas
appeared in immigration court on February 21, 2019.
(Id.; Doc. # 20 at 3.) The Government opposed any
release of Mr. Ramirez-Arenas, and Mr. Ramirez-Arenas
presented letters and made argument in support of release.
(Doc. # 20 at 3.) United States Immigration Judge Elizabeth
McGrail ordered that Mr. Ramirez-Arenas be released from
custody if he posted a $2, 000 bond. (Doc. # 20-4);
see 8 U.S.C. § 1226(a)(2)(A). The following
day, February 22, 2019, a third party posted the $2, 000 bond
for Mr. Ramirez-Arenas, and ICE released him from the GEO
Detention Facility that evening. (Doc. # 20 at 3.)
Ramirez-Arenas filed the Motion to Dismiss Indictment
presently before the Court on February 26, 2019.
(Id.) The Government filed its Response on March 28,
2019. (Doc. # 28.) A four-day jury trial in this matter is
scheduled to begin on June 17, 2019. (Doc. # 23.)
RELEVANT STATUTORY AUTHORITY
Ramirez-Arenas argues that the Government ran afoul of the
Bail Reform Act (“BRA”), 18 U.S.C. §§
3141, et seq., when it used its immigration
enforcement authority to detain him after he had been
released on bond in this criminal matter and to then
“impose additional conditions on [him] in order for him
to obtain” his release from detention at the GEO
Detention Facility. (Doc. # 20 at 4.) His argument assumes
that the BRA conflicts in part with the Immigration and
Nationality Act (“INA”), 8 U.S.C. §§
1101, et seq. (Id.)
THE BAIL REFORM ACT
our society liberty is the norm, and detention prior to trial
or without trial is the carefully limited exception.”
United States v. Ailon-Ailon, 874 F.3d 1334, 1336
(10th Cir. 2017) (quoting United States v. Salerno,
481 U.S. 739, 755 (1987)). The BRA “sets forth one such
exception.” Id. It dictates that a defendant
may be subject to pretrial detention if a judicial offer
finds that “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).
chose not to exclude removable aliens for consideration for
release or detention in criminal proceedings.”
Ailon-Ailon, 874 F.3d at 1338 (quoting United
States v. Santos-Flores, 794 F.3d 1088, 1091 (9th Cir.
2015)). It did, however, “set forth” in Section
3142(d) of the BRA “‘specific procedures to be
followed when a judicial officer determines that a defendant
is not a citizen of the United States or lawfully admitted
for permanent resident'” Id. (quoting
Santos-Flores, 794 F.3d at 1091); 18 U.S.C. §
3142(d). Under Section 3142(d), “if a judicial officer
determines that (a) the defendant is not a citizen of the
United States or lawfully admitted for permanent residence,
and (b), he may flee or pose a danger to any other person or
the community, then the judicial officer ‘shall order
the detention of such person for a period of not more than
ten days.'” United States v. Rangel, 318
F.Supp.3d 1212, 1218 (E.D. Wash. 2018) (quoting 18 U.S.C.
§ 3142(d)). During this detention period of or less than
ten days, “ICE may elect to take the defendant into
immigration custody to pursue immigration proceedings.”
Id. (citing 18 U.S.C. § 3142(d));
Ailon-Ailon, 875 F.3d at 1338. If, however, ICE
“fails or declines to take such person into custody
during that period, such person shall be treated in
accordance with other provisions of this section,
notwithstanding the applicability of other provisions of law
governing release pending trial or deportation or exclusion
proceedings.” 18 U.S.C. § 3142(d).
3142(d) is the only provision of the BRA that expressly
refers to persons who are not citizens of the United States.
“There is nothing else in the BRA that places any
special or additional conditions on persons who are not
citizens.” United States v. Trujillo-Alvarez,
900 F.Supp.2d 1167, 1174 (D. Or. 2012). For example, as the
Court of Appeals for the Tenth Circuit has observed,
“although Congress established a rebuttable presumption
that certain defendants should be detained, it did not
include removable aliens on that list.”
Ailon-Ailon, 875 F.3d at 1338 (citing 18 U.S.C.
§ 3142(e)(3)). Similarly, though Congress
“expressly list[ed] the factors that a court should
consider when determining whether a particular defendant
should be released under pretrial supervision or confined
pending trial, . . . alien status is not a listed
factor.” Trujillo-Alvarez, 900 F.Supp.2d at
1174 (citing 18 U.S.C. § 3142(g)).
THE IMMIGRATION AND NATIONALITY ACT
“contains the basic body of immigration law in the
United States.” Id. Among other things, the
INA charges the Secretary of the Department of Homeland
Security (“DHS”) with “the administration
and enforcement of this chapter and all other laws relating
to the immigration and naturalization of aliens, except
insofar as this chapter or such laws related to the ...