RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0262p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

CESAR VELOZ-ALONSO,

Defendant-Appellee.

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No. 18-3973

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:18-cr-00464-1—James S. Gwin, District Judge.

Decided and Filed: December 6, 2018

Before: SUHRHEINRICH, BATCHELDER, and BUSH, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Danielle K. Angeli, Rebecca C. Lutzko, UNITED STATES ATTORNEY’S 

OFFICE, Cleveland, Ohio, for Appellant. Vanessa F. Malone, OFFICE OF THE FEDERAL 

PUBLIC DEFENDER, Akron, Ohio, for Appellee.

_________________

OPINION

_________________

ALICE M. BATCHELDER, Circuit Judge. This case is about an illegal alien with a final 

deportation order who was criminally prosecuted and pleaded guilty to illegally reentering the 

country. The district court released him on bail prior to sentencing. Finding a statutory conflict, 

the district court issued an order preventing the United States Immigration and Customs 

Enforcement (ICE) from detaining or deporting him prior to sentencing. The government 

>
No. 18-3973 United States v. Veloz-Alonso Page 2

appealed the order preventing its agents from acting pursuant to their statutory mandates. The 

district court erred in its statutory finding and in issuing its order. We REVERSE.

I.

This case involves two Article II agencies navigating their own competing statutory 

requirements while an Article III adjudication commences. Cesar Veloz-Alonso (Veloz-Alonso) 

is a native and citizen of Mexico who entered the United States illegally in the early 1990s. He 

was removed in 1997, 1999, and 2008. In June 2018, Veloz-Alonso was discovered again, 

having for a third time illegally reentered, and was detained by ICE. In August 2018, VelozAlonso was indicted on a charge of illegal reentry in violation of 18 U.S.C. § 1326. He was 

detained pending trial. In October 2018, Veloz-Alonso pleaded guilty and moved for release on 

bail pending sentencing. 

Under the Bail Reform Act (BRA), a defendant found or pleading guilty must be detained 

unless the district court finds by clear and convincing evidence that he is not a flight risk or a 

danger to the safety of the community. 18 U.S.C. § 3143(a)(1). The district court held hearings 

on the motion for release. The government argued that Veloz-Alonso was a flight risk because, 

in addition to his repeated willingness to violate federal law, Veloz-Alonso was subject to a 

reinstated order of removal and an ICE detainer. If release on bond were granted, the 

government asserted, Veloz-Alonso would be taken into custody by ICE, removed, and thus 

unable to attend a sentencing hearing.

The district court granted the motion for release pending sentencing subject to conditions, 

including electronic monitoring and a property lien on his house. The district court found that 

Veloz-Alonso demonstrated by clear and convincing evidence that he was not a flight risk or a 

danger to the community. The district court found that a defendant subject to removal under the 

Immigration and Naturalization Act (INA)1is not per se ineligible for bail. As part of its 

reasoning, the district court cited several district court opinions finding that the BRA supersedes 

the INA during an Article III adjudication. See, e.g., United States v. Trujillo-Alvarez, 900 F. 

Supp. 2d 1167 (D. Or. 2012). In addition to a statutory construction argument, the district court 

 

1

8 U.S.C. § 1101, et seq.
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also raised a separation of powers concern. “[The government’s] position smacks of a threat to 

the judiciary not to disagree with [its] bond position.” As part of its order granting release, the 

district court ordered the government, under threat of contempt, “to refrain from detaining or 

deporting the Defendant while he is released pending sentencing.”

The government appeals the district court’s order prohibiting ICE from detaining or 

deporting Veloz-Alonso. The government also argues that the district court committed 

reversible error by finding a conflict between the BRA and the INA and prohibiting ICE from 

fulfilling its mandatory statutory duties pursuant to a valid final removal order under the INA.

II.

We review “a district court’s factual findings concerning release pending sentencing for 

clear error” and review legal conclusions de novo. United States v. Christman, 596 F.3d 870, 

870 (6th Cir. 2010) (citing United States v. Hazime, 762 F.2d 34, 37 (6th Cir. 1985)).

An inevitable conflict arising from decades-old immigration laws has predictably found 

its way to the doorstep of the judiciary. The precise issue before us today has never been directly 

addressed by our sister circuits or the Supreme Court. We take this opportunity to provide some 

guidance on the issue. 

Several district courts around the country have found, as the district court here did, that 

the BRA and INA pose a conflict. “This issue arises in the collision between the Immigration 

and Naturalization Act and the Bail Reform Act.” The preeminent case standing for this 

proposition is United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012). TrujilloAlvarez and similar cases (e.g., United States v. Boutin, 269 F.Supp.3d 24 (E.D.N.Y. 2017); 

United States v. Garcia, No. 18-cr-20256, 2018 WL 3141950 (E.D. Mich. June 27, 2018); 

United States v. Ventura, No. 17-cr-418, 2017 WL 5129012 (E.D.N.Y. Nov. 3, 2017)) find that 

when the government has detained an illegal alien, “[T]he Executive has a choice to make. It 

may take an alien into custody for the purpose of removing or deporting that individual or it may 

temporarily decline to do so while criminal proceedings are maintained against that person.” 

Trujillo-Alvarez, F. Supp. 2d at 1179. Other cases in this line find the same binary framework. 

“The Executive branch should decide where its priorities lie: either with a prosecution in federal 
No. 18-3973 United States v. Veloz-Alonso Page 4

district court or with removal of the deportable alien.” Ventura, 2017 WL 5129012, at *2. This 

framework creates a problem when the government attempts to pursue both options 

simultaneously. When those pursuits come into tension, courts following the Trujillo-Alvarez

framework have held that once an alien is submitted for criminal prosecution, the statutory 

permissions of the BRA supersede the statutory mandates of the INA. We do not agree.

A long-established canon of statutory interpretation instructs that, “when two statutes are 

capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional 

intent to the contrary, to regard each as effective . . . .” Morton v. Mancari, 417 U.S. 535, 551 

(1974). The section of the Bail Reform Act under which the district court granted VelozAlonso’s release states:

(a) Release or detention pending sentence—(1) except as provided in 

paragraph (2), the judicial officer shall order that a person who has been found 

guilty of an offense and who is awaiting imposition or execution of sentence . . . 

be detained, unless the judicial officer finds by clear and convincing evidence that 

the person is not likely to flee or pose a danger to the safety of any other person or 

the community if released under section 3142(b) or (c). 

18 U.S.C. § 3143(a). Section 3143 imports much of the language of § 3142 that covers the 

“Release or detention of a defendant pending trial . . . .” Section 3142 specifically contemplates 

the release of illegal aliens, instructing “the attorney for the government to notify the appropriate 

court, probation or parole official, or State or local law enforcement official, or the appropriate 

official of the Immigration and Naturalization Service” when the judicial officer orders the 

temporary detention or conditional release of an illegal alien. 18 U.S.C. § 3142(d). The pretrial 

or presentencing release of illegal aliens is clearly permitted under BRA. 

As the government points out, however, nothing in the BRA prevents other government 

agencies or state or local law enforcement from acting pursuant to their lawful duties. Rather, 

the BRA imposes a presumption of detention for criminal defendants pending trial (§ 3142) or 

sentencing (§ 3143) that defendants must overcome by a showing of “clear and convincing 

evidence.” Release of a criminal defendant is permissive after such a showing.
No. 18-3973 United States v. Veloz-Alonso Page 5

The INA, while discretionary in many situations, is mandatory in others. As it pertains to 

illegal aliens with final deportation orders, such as Veloz-Alonso, there is no ambiguity: ICE is 

authorized and mandated under the INA to detain and deport. The relevant sections state in part:

(a) Detention, release, and removal of aliens ordered removed

(1)(C) Suspension of period. The removal period shall be extended 

beyond a period of 90 days and the alien may remain in detention during 

such extended period if the alien . . . conspires or acts to prevent the 

alien’s removal subject to an order of removal.

(2) Detention. During the removal period, the Attorney General shall 

detain the alien.

(5) Reinstatement of removal orders against aliens illegally reentering. 

If the Attorney General finds that an alien has reentered the United States 

illegally after having been removed or having departed voluntarily, under 

an order of removal, the prior order of removal is reinstated from its 

original date and is not subject to being reopened or reviewed, the alien is 

not eligible and may not apply for relief under this chapter, and the alien 

shall be removed under the prior order at any time after the reentry. 

(emphasis added)

8 U.S.C. § 1231(a). Taking these provisions together, ICE is under mandatory instruction to 

detain and deport an alien illegally reentering after a final removal order. While the INA 

provides some discretion as to when such a deportation must take place in this scenario, there is 

no discretion as to whether the alien must be detained and deported. And removal of such an 

alien is permissible even after imposition of a criminal sentencing, but “before the alien has 

completed a sentence of imprisonment . . . if the Attorney General determines that (I) the alien is 

confined pursuant to a final conviction for a nonviolent offense . . . and (II) the removal of the 

alien is appropriate and in the best interest of the United States.” 8 U.S.C. § 1231(a)(4)(B)(i). 

The district court held that its order of release under the BRA superseded the statutory 

mandate of the INA. While the district court correctly found that deportable aliens are not per se 

ineligible for bail, it incorrectly extended that finding to also infer that an alien released on bail is 

ineligible for detention. The district court held that because “the United States has determined 

that prosecuting this case is more important than immediate deportation,” the government must 

suspend its administrative actions under the INA until the conclusion of the judicial proceedings. 

This is incorrect as a matter of law.
No. 18-3973 United States v. Veloz-Alonso Page 6

Veloz-Alonso questions whether the detain-and-deport provisions of INA are actually 

mandatory if ICE may use its discretion to delay deportation and “release” him to the U.S. 

Attorney’s office for prosecution. While other district courts have raised similar questions, we

are not convinced that such a transfer of detention constitutes a “release” for purposes of the 

INA, nor has Veloz-Alonso provided any substantive basis to find otherwise. Directly detaining 

or ensuring detention through U.S. Marshals is not an abuse of ICE’s discretion. In fact, such an 

argument buttresses the government’s position here that if the alien is released by the district 

court under the BRA, ICE will be required to detain and deport. 

Therefore, we find no conflict between the BRA and INA in the manner which the 

Trujillo-Alvarez cases and the district court here ruled. The BRA presumes detention but allows 

for the permissive release of a criminal defendant. The INA mandates the detention of certain 

illegal aliens. Reading the BRA’s permissive use of release to supersede the INA’s mandatory 

detention does not follow logically nor would doing so be congruent with our canons of statutory 

interpretation. One of the primary purposes of the BRA is to ensure the appearance of criminal 

defendants at judicial proceedings. To the extent that ICE may fulfill its statutory mandates 

without impairing that purpose of the BRA, there is no statutory conflict and the district court 

may not enjoin the government’s agents. 

III.

For the foregoing reasons, we hold that ICE may fulfill its statutory duties under the INA 

to detain an illegal alien pending trial or sentencing regardless of a BRA release determination. 

The district court erred in finding that the BRA and INA must be read to conflict. We therefore

REVERSE the order of the district court enjoining the government from detaining Veloz-Alonso 

pending sentencing.