the final case on for argument today is united states versus ventura good morning your honors and may please the court my name is turner buford i represent the united states in this appeal and in the case before the district court the government in this case is seeking the reversal of an order issued by the district court dismissing with prejudice the indictment against the defendant which charged him with attempting illegally to reenter the united states after having previously been deported as an aggravated felony the district court's order issued after the defendant was released on bond in a criminal case over the government's objection subsequently detained by ice authorities pursuant to an immigration detainer upon taking custody of the defendant ice promptly commenced administrative proceedings to determine the admissibility of the defendant to the united states who prior to his arrest had been stopped at j f k airport in possession of one we would like your honor for an order from this court reversing the district court's order and allowing the criminal case to proceed the indictment in this case was dismissed with prejudice we believe that the indictment in the criminal case  proceed consistent with the bail reform act given the progress of the administrative proceedings that are under way which would afford the government to pursue the criminal case and the administrative proceedings simultaneously so if you disagreed with the judge's decision on bail and seek relief here your honor we thought that we disagree with the government's the court's decision on bail but we elected not to seek relief in this court yes but the reason you can't continue with the criminal case according the district judge is you violated his order ok now it's seems he issues an order saying person you want to be released on bail put up this bond puts up the bond and then he gets seized why would he put up a bond well in this case t had ten days right under the statute to to do something your honor i certainly took custody less than twenty four hours after the defendant was released on bail in the criminal case i think and the tanner was questions first currently he is on bail currently he is on bail in the in the criminal case there is no criminal case he's on bail in the immigration proceeding yesterday there was an immigration judge set a bond of fifteen thousand dollars that was in detention for purposes of the administrative proceeding was not justified by statute alternatively there could be a finding i think where the district court could conclude that the detention in the administrative proceeding or the minister proceeding it reached the point at which there was nothing left to do but remove the defendant and if for some reason that it was vindictive for example potentially vindictive your honor you see that in other contexts with parallel proceedings in the securities world but there was no finding one way or the other of pretexts of that faith here so i correct our read of the district court's decision judges that is that it got no further than the bail reform act itself holding that once the defendant is released in the criminal case because it's all one legitimacy of someone with a legitimate finding a pretext or bad faith that that would be a reason to do what judge irizarry did ultimately did in this case i think that could justify a finding that  dismissal order because it doesn't necessarily prevent parallel proceedings from occurring in fact arias it seems to explicitly contemplate the parallel proceedings could could continue then i think that what i think we would ask for this court is in order revers me that the district court contemplated bad faith on the part of the government which she didn't have to she didn't think you know she thought can't do these proceedings but it but i suspect counsel would raise it promptly upon remained in which case the district court would have an opportunity to address that issue as a basis for there are a range of sanctions that can be imposed on the government for bad behavior if you will or sanctionable behavior that don't contemplate the dismissal of an indictment that's correct your honor and i think that if you read the district court cases that have confronted this issue there's there's a flavor of concern valid concern for use of the court's resources and protection of its own docket if there's going to be a situation in which ice is going to going to remove promptly a person is a criminal defendant and i think judges rightly ask why should we devote time to this i think it varies case by case in this particular case the pace of the administrative proceedings in the logistics are manageable such that we think that both proceedings could continue and under the law there's no reason we think why they can't under this under this circumstance if it does explain to me what happened here the judge can see somebody  as non citizen and keep him for ten days and notify ice we've got this person you know and ice can take him into custody you are not and so in this case there was a notice there was no notice specifically you're out of this is a this is the i want to say rare but the case where ice is the sponsoring agency for the prosecution and also the agency that has the independent statutory basis to detain the defendant for judge hears are that there was an immigration detainer and by the time chief judge hears already heard the appeal i said in fact already taken custody of the defendant ok but he's probably for ninety days so what happened that ninety days the ninety days expired of its own force ice could day for ninety days and then as a matter of law even the ninety days had not expired when the defend it was served with a notice to appear in the administrative proceeding which happened on august fifteenth the twenty seventeen that notice to appear has the effect of terminating the parole even if it were still in effect is my understanding in the administrative process in the administrative process that's correct your honor but really the central question before us with respect to the first level issue is whether you can even have these parallel tandem parallel criminal and mr proceedings really with the taint that's the issue i think that's correct your honor i think that the again the bail reform act seems to explicitly contemplate if not endorse the idea that ice could take custody during this ten day window certainly doesn't prohibit ice from taking custody in our region after the ten day window expires provided it's in further and so bonafide administrative proceedings the extent there are concern context for any other reason we just think that's reading it reading it too far thank you you've reserved two minutes for rebuttal mr buford thank you mr wheeler and it's still morning so good morning good morning your honor may it please the court isaac wheeler of the federal defenders of new york for the resign ventura we agree with the government that this case is a little bit rarer represents a narrow question ar ising from an unusual situation when a reentry defendant is granted bail which is comparatively rare and is the beneficiary of a duly issued release order under the bail reform act that the government has unsuccessfully appealed to the district court and when he is then taken into immigration custody that is elective not mandatory and when most unusually of all he is then subjected to a removal proceeding which is more process than he is due because he is susceptible to expedited removal forthwith with the stroke of a pen whether under those unusual circumstances the district court was correct to find that the purpose of ice custody was not as the government maintains a garden variety removal proceeding like they would have done in any other case but was in fact custody in order to secure the defendant's detention pending trial in derogation of the court's order and we built it so that goes to my series of questions pursuing its detaining was pretextual or in bad faith or vindictive and if she did not do that just as a follow up isn't the appropriate answer and i know you've got a whole big argument did make a finding about pretext which i believe is is that that is yes judge at page six of the court's november third order which is page sixty nine of the government's appendix and i think it's important to and i think the reason i want to draw that distinction is because both the district court here and the cases on which she was heavily relying the trujillo alvarez decision from the district of oregon knees decision in the southern district here in the glitz the case make the standard is the ice custody pretextual meaning is it designed not to  is whether or not in these unusual circumstances you can have parallel proceedings i think that the language i would focus on your honor is she she finds that the government's actions taking the executive as one unitary whole are an affront to the bail reform act and represented in the second paragraph a challenge to the district courts bond determination outside the rules of federal criminal procedure and go to your next will or it seems to me then we have to say that somehow when congress wrote the bill reform act it intended essentially does supersede in a way the immigration act and our job i mean white why can't we reckon why is it impossible for us to reconcile those two acts judge i don't believe this case actually requires the court to make a finding like that as the government can be a holding i think but holding excuse me as the government can see this was not a case where the government chose to invoke the thirty one forty two d procedure and in addition this is not a case and i think this is critical this is not a case where detention under the immigration act is mandatory the government has maintained it was all along but has never successfully  satisfactorily address the point which we raise below and raise i don't know that it's i don't know that i heard that the tension was mandatory there's what i've heard in bed the way that i've understood it is that there's a significant amount of discretion vested in with ice in connection with the tension decisions and i'm just very focused on whether or not in this case there's a ready record predi say that detention is mandated by the i a e a that isn't correct someone in mr ventura's posture can be paroled out of immigration custody even when they're in proceedings before an immigration judge and i think it's material that the government could have but chose not to release them when they resumed because i mean that the facts matter here they could have put mr ventura back on the next plane when he first showed up the record as amply entry after deportation right within three hours they had reached in a four hours they had reached an accord with the u s attorney's office to parole him for prosecution as your honor noted instead when he posted bail and they resumed custody they could also have if their intent was truly to effectuate his removal they could have deported him then they did not instead they did something quite unusual for d h s and it's not just my say so the supreme court in  rodriguez says it's unusual they took an arriving alien with no entitle mint to an immigration judge proceeding and gave him a proceeding in immigration court although he'd already been ordered deported they were slow walking the removal case and that's just manifest and in addition to slow walking the removal case they elected to detain him although the regulation gives them the authority to parole him so when the government was presented with this choice by the district court obey the bail reform act order or so or terminate the prosecution they elected to disobey the bail reform act order and as judge  not avail themselves of their ability to appeal the bail determination they didn't like to this court so i think what judge irizarry found we disagreed with you just assume this for a second that criminal improper as a violation of the bill reform act judge yes the and bad faith are not the same thing when the government has the ability to enlarge him under the terms set by the district court but refuses to do so and i think it's important to note in this regard that in other cases as we noted in the brief that is what they did in response to material use similar orders in judge case ice released a reentry defendant in the lopez case that came after this one the case took a different turn but initially as we pointed out in page fifteen of the special appendix the government submitted a letter saying ice agrees in response to a materially identical order to release the defendant so when the government demonstrates that it can do that but does not do that the district court is justified in finding that the purpose of ice detention is not to effectuate his removal back could have been effectuated the day he posted bail but in but is in fact to maintain him in custody pending trial and i think that is a finding a pretext yes not bad faith but pretext and and you know the government can act irrationally without acting in bad faith right it has the power to obey as the government put it in its own brief to fully commit to the criminal prosecution by following the district court's order or it has the power to abandon prosecution and effectuate removal which it gave up multiple times and i'm not sure that i see  improper just i think parallel proceedings are perfectly proper so long as someone is not detained by for the parallel proceedings we don't contend although i agree there is some ambiguous language in this decision and perhaps in in our brief that that we do not contend that i was powerless to initiate a removal proceeding against someone once they have a pending federal criminal case what they can't do is if the district court has duly determine bail under the be a they can't while the criminal prosecution remains pending detain that person right or specific argument that's right because the removal proceeding itself does not violate mr ventura as rights under the bill reform act and what he is complaining about here is a violation of the benefit of the release order the what the government is prohibited from doing is using ice detention as a heads i win tails you lose substitute and and and the then the question is the chief judge usury make a finding that i'm comfortable describing as a finding of pretext set aside bad faith for a second she could make that determination but that's the question yes she did in that she is that the question really fundamental yes i think if we both understood if i understand your honor correctly and we're speaking about pretext meaning the purpose of ice custody is not actually to effectuate removal but is actually to keep someone locked up pending prosecution unrelated to its administrative it's really to do something in the to disagree with the court's bail determination to act in violation of it administrative custody that actually was headed towards removal would not be protectable administrative custody you think that that's enough describing my time has expired which is to complete i'm going because i've got some questions for you so it's a relatively narrowly tailored remedy in the sense that she left it open to the government either to effectuate his removal as they had done in a previous case and have continued to do or to forego the prosecution and if i may that could be a room i mean they could go through this prosecution assuming your client gets convicted serves time or not because he can be removed while he's serving time and then they proceed with removal right yes your honor there is no speedy trial act for the and the bulk of our brief is devoted to showing how in many places  appears to contemplate that as the normal and rational why i can't when could the government in the course of the process that i just suggested if you have it in mind still when could they have actually place to detain around him they can certainly play said on him when he's sentenced and put over an m c c or wherever he would be serving his time right any time before that convicted by the jury could the government put a detainer on him at that point well the detainer as a notice to the criminal custodian to simply not release them to the right without notifying ice we're not objecting we've got dibs on this guy when he gets out and what routinely happens in the eastern district in drug courier cases which we also do not object to is someone is stopped at the airport the decision is made not to remove them but to parole them for prosecution a detainer is lodged and if that person does as as accused couriers frequently do make bail the detainer is acted on to the limited extent that c b p transiently comes in and holds them in custody for so long as it takes to get from n b c to the airport and then give them a letter saying come back to us when the criminal cases disposed or check in with us and two months right they continue their parole that has but they're removed no in other words they they do what we do and they're skipping the country i apologize as they do what we contemplate is the normal course of events here they are all someone for prosecution if they make bail they continue that parole status perhaps with check ins every couple weeks or a you know an appointment to keep them apprised of the status of the criminal case and only upon a disposition of the criminal case are they then subject either to expedited removal or a removal proceeding or what have you i couldn't whoever pick them up at that point detain them get them in front of them an bail on the administrative process which as i understand it but correct me if i'm wrong is what happened well that yes judge you guys out on bail write your responses to that the first they fought that outcome too thin claw and it hangs by a thread in this case because the basis on which he got a bond hearing and an immigration judge doesn't have jurisdiction to give someone in mr into his position a bo the way he got a bond hearing was under this court's decision and laura versus shanahan which is arguably abrogated by a recent supreme court case so this court just reminded that back to the district court in july and that may well cease to be the case re soon as the district order tends to it if we change right but that favor one sense but the right and the arguments they pressed below about why he was dessen titled to immigration release are have prevailed at the supreme court in addition and i think this goes to your honor's question the way he got out of immigration custody he had a he as the government correctly noted this is not in the record but there's no dispute he had the bond hearing in december he posted bond in march why did it take four months because immigration bond is cash bond his wife had to borrow money against her for a one k to come up with the fifteen thousand dollars to give to i and that is a significant additional restraint on his liberty that the district court did not find justified under the b r a he was as the government noted released on an unsecured bond of twenty five thousand dollars signed by his wife and sons and subject to other conditions including electronic monitoring and home confinement and an agency which has separate statutory foresman authority to deal with folks who have done what your client is alleged to have done i'm just having a problem why that is not a separate proceeding i mean i live up on a border state to its role in border states where it just seems to me you could parallel proceedings with their own mechanisms within them i'm having a to other sets of facts might raise a more stark conflict between an asserted mandate to detain someone and a court's release order but this isn't that case they weren't required to detain him at all and don't think this creates any problem required but the government's not required to request bond in a case and he could be running around out there on no bond that's why but in this case where they opposed his release and then use elective where ice as the government knows was not just didn't just find out about mr ventura because he happened to be arrested on a drug case they brought this case in close coordination with the u s attorney's office he wasn't indicted for four months because defense counsel below was negotiating with the government about whether they might want to dismiss these charges because of legal and for many so they really made about the most deliberate decision one can make to prosecute in lieu of immediately removing him i think that narrows the case to a fairly unusual situation i get back to what i think i heard judge lawyer asking but i'm going to ask it again and with apologies if i am what's the rule we articulate that whereas here a district court has made a finding justified on the circumstances before her that the purpose of ice custody was not to effectuate removal but to hold mr ventura pending prosecution that she acted within her supervisory authority to ask the government to either choose to forgo the prosecution or effectuate his release he having been released on bail for right in other cases the government has responded to identical orders by obeying the district court's bail order in this case they chose not to and i think the district court acted appropriately to enforce her own order under those circumstances but the question or these question understand yours may respond briefly to that i mean i believe this court even if it finds that the district court wasn't adequately clear about that the circumstances that i have just outlined namely twice  well i your honor i do believe this court has in front of it an ample record to find that it was but yes given that supposition i mean that the last thing i would note in response to that judge is just this was a zero to six month guideline case with a meritorious defense to removal that didn't get brought because the case the indictment was dismissed on other grounds he spends an additional eight months in ice custody over and above the four months that he was in criminal custody because of the government's and again not necessarily bad faith but contemn a c so further criminal proceedings are in some sense punitive to that extent stand but he's out on you don't want to celebrate anything it seems to me and there was a sense of some lack of clarity why not get the clarity understanding that things of have taken several turns over was released on bond ice took custody there was no delay the defendant had not previously been released in any fashion as was the case in the glitz a case administrative proceedings were scheduled hearings were being held in that case and the defendant was in the custody of ice as opposed to again and go let's say where the defend it was rigid back in the m d c and it's such a protean noted was in the same so he had previously been held in none of that is happening here and i think for the court to find either this court or for chief judge or as ari defined that there had been a pretext to all detention you would have to find something in the nature of that their ultimate goal of ice was not to remove the defendant but was rather simply to detain them for the purposes of the criminal case there's no question that ice could have sent him home on the next plane it's also the case though that once the defendant is in administrative custody to some extent the pace of the proceedings is not entirely exclusively up to ice if the defendant wanted to as i understand it he could withdraw the application for admission that he is deemed to have made when he arrived at the border and essentially consent to removal the defendant hasn't done that it says in our brief by the way that if he did that the criminal case would which would not be a reason to defer the removal and if it were in the defendant would have the same motion they had previously which is i'm now being held soley for the purpose of the criminal case and that can happen because the district court set bond for me that's not what happened in this case and as such we think the motions premature just to give me some context here he was removed correct and now he's back yes and he thinks he has a case now to not be removed as he had a misdemeanor and that is that on because he didn't do this it regionally no it's my understanding in this this is not one of the transcripts that's appended to this record but it's my understanding in a previous hearing for the district court that the defendants position is it would be very difficult for him to contest the deportation from the dominican republic so what would one way to view this is the defendant has presented himself at the border essentially daring the government to indict him if he's not indicted he simply gets all goes home in the next plane if he is and this is now speaking more generally about other people who might be si if you have a nonviolent criminal history are very likely to get bail which means you would be allowed to come into the united states live here indefinitely litigate your thirteen twenty six d motion if you when your immigration status is resolved favorably if you lose you know worse off than you were before admittedly with a criminal conviction although low guideline range and then you get deported in the same context so that the idea that the government is taking advantage of the defendant i think is in some tension with the withdraw essentially the application for this set that set that scenario side that the next scheduled court date in the immigration proceeding as in october it's my understanding the defendant has not even pled the notice to appear yet i can't make any guarantees but in discussion with ice counsel their estimate is that the removal proceeding on its current pace would be in two thousand and twenty before it would reach conclusion but the defendant could mr ventura could withdraw application and essential effectuate his own removal my understanding is that's right and it says in our brief that we wouldn't be able to stop that by virtue of the criminal case which may or may not exist depending on what this court right now that's right right thank you both thank you and help helpful arguments and certainly an interesting issue for me so having concluded our calendar today i'll ask the clerk please to adjourn court