PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v.

JOSE LUIS BARRERA-LANDA, 

 Defendant - Appellant.

No. 20-4044

(D.C. No. 2:20-CR-00085-HCN-1)

(D. Utah)

_________________________________

Appeal from the United States District Court 

for the District of Utah

(D.C. No. 2:20-CR-00085-HCN-1)

_________________________________

Submitted on the briefs:*

Scott Keith Wilson, Federal Public Defender, Benjamin C. McMurray, Assistant Federal 

Defender, Salt Lake City, Utah, for Defendant-Appellant.

John W. Huber, United States Attorney, Felice John Viti, Assistant United States 

Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.

_________________________________

Before TYMKOVICH, Chief Judge, BRISCOE and HARTZ, Circuit Judges.

_________________________________

TYMKOVICH, Chief Judge.

_________________________________

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 

FILED

United States Court of Appeals

Tenth Circuit

July 6, 2020

Christopher M. Wolpert

Clerk of Court
2

Jose Luis Barrera-Landa appeals from the district court’s release order. The 

district court ordered Mr. Barrera1 released pending trial subject to the conditions the 

magistrate judge set in an earlier order. Mr. Barrera does not appeal from that 

portion of the district court’s release order. As part of its order granting pretrial 

release, the district court denied Mr. Barrera’s request to enjoin the United States 

Immigration Customs and Enforcement (ICE) from detaining or deporting him during 

the pending criminal proceedings. Mr. Barrera appeals from that portion of the 

district court’s release order. Exercising our jurisdiction pursuant to 18 U.S.C. 

§ 3145(c) and 28 U.S.C. § 1291, we affirm.

I.

This appeal involves the relationship between the detention and release 

provisions of two statutes: the Bail Reform Act (BRA), 18 U.S.C. §§ 3141-3156, and 

the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101-1537. 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). The BRA requires the pretrial release of a defendant 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 also contains a temporary detention provision “for persons 

not lawfully admitted to the United States, as well as individuals who are on pretrial 

1 In his appeal brief, counsel refers to defendant-appellant as “Mr. Barrera” so 

that is how we refer to him in this decision.
3

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.” United States v. Soriano Nunez, 928 F.3d 240, 244 

(3d Cir. 2019) (citing 18 U.S.C. § 3142(d)). “Other than during this temporary 

detention period, . . . non-citizen defendants are treated the same as other pretrial 

criminal defendants under the BRA.” Id. at 244-45.

The INA gives the Attorney General the power to issue warrants for arrest and 

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

is to be removed from the United States.” 8 U.S.C. § 1226(a). Aliens who have 

committed certain criminal offenses must be detained pending removal. See id. 

§ 1226(c)(1). And ICE may issue a detainer when an alien is in the custody of 

another governmental entity. See id. § 1357(d). “Via the detainer, ICE informs the 

agency that it ‘seeks custody’ of such an alien ‘for the purpose of arresting and 

removing’ the alien.” Soriano Nunez, 928 F.3d at 245 (quoting 8 C.F.R. § 287.7(a)). 

II.

Mr. Barrera is a native and citizen of Mexico. He was removed from this 

country in 2011 based on a final order of removal. At some point, he reentered the 

country. Earlier this year, ICE arrested him and reinstated his prior order of removal. 

He was subsequently charged with re-entry of a previously removed alien, in 

violation of 8 U.S.C. § 1326, and immigration officials brought him to the courthouse 

to appear on this charge. At his initial hearing, the government sought detention. 
4

Mr. Barrera initially waived pretrial release to participate in the Fast Track program,2

and the district court entered a detention order, remanding him to the custody of the 

U.S. Marshals. Because Mr. Barrera was subject to a reinstated order of removal, 

ICE lodged a detainer seeking his custody for immigration purposes when he was due 

to be released from the custody of the U.S. Marshals. 

Mr. Barrera subsequently moved for review of his detention order by the 

magistrate judge. He asserted that he no longer wished to participate in the 

Fast Track program and he requested that he be released pursuant to § 3142(e)(1). 

The government filed a response in opposition to Mr. Barrera’s release request, 

arguing that he was a danger to the community and no conditions could assure his 

appearance at future court proceedings or the safety of the community. In his reply, 

Mr. Barrera continued to assert that he met the standards for pretrial release under 

§ 3142(e)(1). He also argued that if he was released pretrial, the district court should 

enjoin ICE from taking custody of him during his pending criminal proceeding. 

After holding a hearing on the motion, a magistrate judge determined that 

Mr. Barrera could be released pretrial subject to certain conditions. The magistrate 

judge denied Mr. Barrera’s request to enjoin ICE from taking him into custody after 

his release, agreeing with a number of other circuits that have held the government 

2 The Fast Track program allows for a downward departure in a defendant’s 

sentencing guideline range if he agrees to early disposition of his case. See generally

United States v. Lopez-Macias, 661 F.3d 485, 486-87 (10th Cir. 2011).
5

has the authority to proceed down the dual tracks of criminal prosecution and 

immigration enforcement at the same time. 

The government sought de novo review of the magistrate judge’s decision 

releasing Mr. Barrera on conditions. It also requested a stay of the release order 

pending the district court’s review. The magistrate judge granted the stay. The 

district court held a hearing on the government’s motion, but ultimately agreed that 

Mr. Barrera could be released pretrial subject to the conditions the magistrate judge 

had imposed. The court also denied Mr. Barrera’s request to enjoin ICE from 

detaining or deporting him during his pending criminal proceedings.3

 The 

government did not appeal from the district court’s order releasing Mr. Barrera with 

conditions and Mr. Barrera likewise does not challenge that portion of the release 

order. Mr. Barrera appeals the portion of the release order denying his request to 

enjoin ICE from detaining him or deporting him while he is on pretrial release.

III.

“In general, we apply de novo review to mixed questions of law and fact 

concerning a district court’s detention or release decision, but we accept the district 

court’s findings of historical fact which support that decision unless they are clearly 

erroneous.” United States v. Doby, 928 F.3d 1199, 1202 (10th Cir. 2019) (internal 

quotation marks and brackets omitted). This appeal, however, does not involve any 

challenges to the district court’s decision to release Mr. Barrera pretrial subject to 

3 Mr. Barrera filed a stipulated motion to stay his release pending this appeal, 

which the district court granted.
6

conditions. Instead, this appeal involves a purely legal question about the interplay 

between the BRA and the INA that we review de novo. See id. at 1202, 1204 

(reviewing de novo purely legal issue in bail appeal).

A.

We first consider what arguments were raised in the district court and are 

properly before this court on appeal. In his reply in support of his motion for 

magistrate judge review of the initial detention order, Mr. Barrera argued, “[w]hen 

ICE takes custody of an individual, it can seek either to pursue removal in lieu of 

prosecution or to have the individual prosecuted and then issue a final administrative 

order of removal after the conclusion of the criminal case.” Aplt. Unsealed App. at 

48. He asserted that ICE was required under 8 U.S.C. § 1231(a) to remove him 

within ninety days once it reinstated his prior order of removal. He further asserted 

that ICE violated § 1231(a) by deferring his removal to facilitate the criminal 

prosecution against him, and that by doing so, the “executive branch . . . submitted to 

the laws that govern criminal proceedings, including the [BRA], 18 U.S.C. § 3142.” 

Aplt. Unsealed App. at 48. Mr. Barrera acknowledged that § 3142(d) permitted the 

detention of an individual for ten days during which immigration could take custody 

of the individual, but noted that his detention had far exceeded the ten-day waiting 

period. He also asserted that the ten-day waiting period would not have been 

appropriate in any event because ICE had relinquished custody to the executive 

branch, citing again to § 3142(d). 
7

Mr. Barrera did not file any further briefing on the issue in district court. At 

the hearing on the government’s motion for district court review, the district court 

sua sponte raised the issue. The court asked the parties to “discuss whether the 

Government’s decision to prosecute Mr. Barrera has any impact on ICE’s ability to 

detain and/or deport the Defendant.” Id. at 138.

Counsel for Mr. Barrera responded:

[O]ur argument in a nutshell is that under the statute and the applicable 

regulations, when ICE issues the final removal order, they have the 

obligation to remove that individual and lack the discretion to release that 

individual.

In this case, ICE failed to comply with those laws and, instead of 

removing Mr. Barrera, ICE agents literally brought him to the federal 

courthouse and handed him over to the Department of Justice. Having 

relinquished custody, it would be improper for them to now assert custody 

when they were the ones who made the choice to hand him over. And by 

choosing to deliver him to the Department of Justice for prosecution, ICE 

effectively made the choice to submit to the rules that apply to criminal 

proceedings.

If you order that he is to be released and live at a certain place and 

comply with certain conditions, all must honor that order, both Mr. Barrera, 

as well as Immigration.

Id. at 140. For support, he cited to United States v. Baltazar-Sebastian, 429 F. Supp. 3d 

293 (S.D. Miss. 2019). Counsel also asserted his belief that the detainer issued in the 

case was illegal, relying on 8 U.S.C. § 1357(d). His final argument was for the district 

court “to consider release . . . under the standards that would apply to a temporary 

restraining order [TRO], which this court has equitable authority to issue.” Aplt. 

Unsealed App. at 150. 
8

Mr. Barrera raises two new arguments on appeal. He argues that 18 U.S.C. 

§ 3142(c) authorizes a district court to prohibit the United States from deporting a 

defendant to assure his appearance in court. He also argues that “[t]his court should 

recognize the courts’ inherent supervisory authority to enjoin the United States from 

arresting or deporting Mr. Barrera while the criminal case is pending.” Aplt. Mem. 

Br. at 9.4

 When a litigant fails to raise an argument in district court, we typically 

treat that argument as forfeited. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 

1128 (10th Cir. 2011). And we will only reverse a district court decision on a 

forfeited argument if the appellant satisfies the standard for plain error. See id.; see 

also United States v. Kearn, 863 F.3d 1299, 1305 (10th Cir. 2017). But here, 

Mr. Barrera does not even attempt to show how these newly-raised arguments satisfy 

the standard for plain error. He has therefore waived them. See Kearn, 863 F.3d at 

1313 (concluding that appellant waived issue by failing to argue for plain error).5

4 Although Mr. Barrera told the district court it had “equitable authority” to 

enjoin the government under the standards applicable to a TRO, his argument on 

appeal about the court’s “inherent supervisory authority” to enjoin the government 

goes far beyond the passing reference he made to the district court. “[D]iscussing a 

theory only in a vague and ambiguous way below is not adequate to preserve issues 

for appeal.” Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1314 n.4 (10th Cir. 

1988). Thus, even if the argument he makes on appeal about the court’s “inherent 

supervisory authority” to enjoin the government is meant to refer to the same 

“equitable authority” he mentioned to the district court, his passing reference to that 

court’s “equitable authority” to enjoin the government was so vague and poorly 

developed that it was not sufficient to preserve his argument for appeal. The 

argument he now makes is essentially a new argument that was not raised in the 

district court.

5 Although Mr. Barrera argued in district court that his detainer was illegal, he 

does not raise that argument on appeal. We deem this argument waived. See Krastev 
9

B.

We now turn to Mr. Barrera’s remaining argument. He argues that the 

government has to choose to either proceed with immigration enforcement or his 

criminal prosecution, but cannot do both. He asserts that if the government chooses 

to prosecute, it must submit to the detention rules that govern criminal prosecutions 

and ICE cannot detain or remove him. The district court denied Mr. Barrera’s 

request to enjoin ICE, explaining that every circuit that has addressed the issue has 

concluded that ICE may fulfill its statutory duties under the INA to detain an illegal 

alien regardless of a release determination under the BRA. The district court found 

those cases persuasive, noting that “‘[n]othing in the text of the BRA prevents ICE 

from enforcing a detainer or taking a [d]efendant into custody for removal 

proceedings after an order of release under the BRA.’” Aplt. Unsealed App. at 158 

(quoting Soriano Nunez, 928 F.3d at 246). For the reasons that follow, we agree with 

the district court’s decision and join the five circuits that have concluded there is no 

conflict between the BRA and the INA and that a release order under the BRA does 

not preclude removal under the INA. 

Mr. Barrera is subject to a lawful immigration detainer and a valid, preexisting 

removal order. Although Mr. Barrera’s criminal case is pending, the BRA does not 

give the district court authority to interrupt ICE’s independent statutory obligations 

to take custody of Mr. Barrera once he is released. As the D.C. Circuit explained, 

v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002) (“Issues not raised on appeal are 

deemed to be waived.”). 
10

“ICE’s authority to facilitate an illegal alien’s removal from the country does not 

disappear merely because the U.S. Marshal cannot detain him under the BRA 

pending his criminal trial.” United States v. Vasquez-Benitez, 919 F.3d 546, 553 

(D.C. Cir. 2019). That court further explained, “[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.” Id. at 552; see also United States v. Lett, 944 F.3d 467, 470 

(2d Cir. 2019) (“The BRA and the INA . . . serve different purposes, govern separate 

adjudicatory proceedings, and provide independent statutory bases for detention.”). 

Neither statute “precludes the government from exercising its detention authority 

pursuant to the other statute,” and courts cannot “order the Executive Branch to 

choose between criminal prosecution and removal.” Lett, 944 F.3d at 471. Instead, 

“[t]he BRA and the INA authorize the government to pursue both criminal 

prosecution and removal simultaneously.” Id.

Our decision in United States v. Ailon-Ailon, 875 F.3d 1334 (10th Cir. 2017)

(per curiam), while not addressing the specific question presented here, contemplated 

parallel criminal and immigration proceedings that would permit a defendant to be 

released pursuant to the BRA and then detained by ICE under the INA. In that case, 

the defendant, like Mr. Barrera, was subject to a reinstated order of removal and ICE 

had lodged a detainer requesting custody of the defendant if he was released from the 

custody of the United States Marshals. Id. at 1336. The government argued that the 

defendant should be considered a flight risk under § 3142(f)(2), and so detained 
11

pretrial, because if he was released, ICE would remove him prior to trial. Id. at 1336. 

The district court agreed with the government and ordered the defendant detained. 

We reversed, “hold[ing] that in the context of § 3142(f)(2), the risk that a defendant 

will ‘flee’ does not include the risk that ICE will involuntarily remove the 

defendant.” Id. at 1339. We remanded to the district court with instructions to set 

appropriate conditions for release pending trial, and we further directed that “[w]hen 

the conditions of release have been met, the United States Marshals shall release [the 

defendant] to ICE custody, pursuant to the detainer.” Id. at 1340. 

Ailon-Ailon is consistent with the five circuits that have held that there is no 

conflict between the two statutes and that release under the BRA does not preclude 

detention or removal under the INA. See United States v. Pacheco-Poo, 952 F.3d 

950, 952 (8th Cir. 2020) (rejecting defendant’s argument that a BRA release order 

precludes INA removal, explaining that “[t]he BRA and INA can coexist” because 

“the BRA does not have any clearly expressed intention to subordinate the INA”); 

Lett, 944 F.3d at 471 (explaining that “there is no conflict between the detention-andrelease provisions of the two statutes” and holding that “[t]he district court’s bail 

release order under the BRA thus did not preclude the government from detaining 

Lett pursuant to the INA as an inadmissible alien subject to removal”); Soriano 

Nunez, 928 F.3d at 247 (finding “no textual conflict between the BRA and the INA” 

and concluding that the district court “correctly declined to hold that Soriano Nunez’s 

BRA release order mandated her release from ICE detention”); Vasquez-Benitez, 

919 F.3d at 553-54 (explaining that “Congress has never indicated that the BRA is 
12

intended to displace the INA” and affirming the district court’s release order under 

the BRA, but vacating the district court’s “order prohibiting the U.S. Marshal from 

delivering Vasquez-Benitez to the custody of [ICE]”); United States v. Veloz-Alonso, 

910 F.3d 266, 270 (6th Cir. 2018) (finding no conflict between the BRA and the INA

and reversing order enjoining ICE from detaining defendant under the INA, because 

“ICE may fulfill its statutory duties under the INA to detain an illegal alien pending 

trial or sentencing regardless of a BRA release determination”). Mr. Barrera has not 

presented any persuasive authority that would compel us to disagree with these 

decisions from our sister circuits.

Mr. Barrera first argues that the Ninth Circuit has construed the BRA and the 

INA in a way that supports his request for an injunction, citing to United States v. 

Santos-Flores, 794 F.3d 1088 (9th Cir. 2015). But that case did not address the issue 

presented here. In Santos-Flores, the Ninth Circuit held that the district court erred 

in relying on an ICE detainer and the probability of Santos-Flores’s removal to detain 

him under the BRA as a flight risk. Id. at 1092. The holding in Santos-Flores is 

similar to our holding in Ailon-Ailon. In fact, we cited to Santos-Flores to support 

our decision in Ailon-Ailon. See 875 F.3d at 1337 (“In a slightly different context, 

the Ninth Circuit has suggested that ‘flee’ as used in § 3142 involves an element of 

volition.”). In Santos-Flores, the court stated that once the government elects to 

criminally prosecute an alien, it “may not use its discretionary power of removal to 

trump a defendant’s rights to an individualized determination under the [BRA].” 

794 F.3d at 1091. In other words, the Ninth Circuit concluded that the district court 
13

“may not . . . substitute a categorical denial of bail for the individualized evaluation 

required by the [BRA].” Id. at 1091-92. It then upheld the district court’s alternative 

ruling that Santos-Flores would be a voluntary flight risk based on the court’s 

individualized consideration of the evidence in his case and the factors for 

determining whether release is appropriate under § 3142(g). See id. at 1092.

Mr. Barrera reads Santos-Flores as standing for the proposition that “the 

government may not use its discretionary power of removal to trump a defendant’s 

right to pretrial release under the Bail Reform Act as long as the criminal case is 

pending.” Aplt. Mem. Br. at 13 (internal quotation marks and brackets omitted). But 

Santos-Flores did not speak to whether a defendant can be removed if he is released 

pretrial under the BRA. The focus in Santos-Flores was on conducting an 

individualized determination on the detention question as opposed to automatically 

detaining an individual if there was a pending ICE detainer. Moreover, the defendant 

in Santos-Flores was not actually released, so the Ninth Circuit never addressed the 

question before this court—whether a district court has the authority to enjoin ICE 

from removing a defendant once he is released under the BRA. The Santos-Flores

decision does not provide a basis to reverse the district court’s decision. 

Mr. Barrera next acknowledges the decisions from the five other circuits that 

the district court relied on in reaching its decision, but he contends that “their 

reasoning is unavailing.” Aplt. Mem. Br. at 14. He primarily challenges the Sixth 

Circuit’s decision in Veloz-Alonso. In that case, the district court released the 

defendant on bail prior to sentencing and issued an order preventing ICE from 
14

detaining and deporting him prior to sentencing due to a statutory conflict. 910 F.3d 

at 267. The Sixth Circuit reversed, concluding that there was no statutory conflict 

between the BRA and INA. Mr. Barrera points to what he views as two key 

assumptions from that decision: (1) that “ICE is under mandatory instruction to 

detain and deport an alien illegally reentering after a final removal order,” id. at 269

(discussing § 1231(a)); and (2) that “[t]he BRA presumes detention but allows for the 

permissive release of a criminal defendant,” id. at 270. Aplt. Mem. Br. at 15. 

Mr. Barrera contends that the Sixth Circuit’s “analysis is unsustainable in this 

circuit because both assumptions are wrong.” Id. He asserts that in our decision in 

Ailon-Ailon, we rejected the second premise in Veloz-Alonso because “in this circuit, 

liberty is the rule and pretrial detention is the exception.” Id. (citing Ailon-Ailon, 

875 F.3d at 1336). In Ailon-Ailon, which involved pretrial detention, we did note that 

“‘[i]n our society, liberty is the norm and detention prior to trial or without trial is the 

carefully limited exception,’” 875 F.3d at 1336 (quoting United States v. Salerno, 

481 U.S. 739, 755 (1987)). But the defendant in Veloz-Alonso had pleaded guilty, so 

the question of release was governed by § 3143(a). That provision of the BRA 

requires that 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.” Veloz-Alonso, 910 F.3d at 267 (emphasis 

added). Given the circumstances in Veloz-Alonso, that court was correct in stating 

that the BRA presumes detention, but allows for permissive release. Ailon-Ailon
15

never rejected that premise, because it involved pretrial detention, not detention after 

conviction. Accordingly, there is no conflict between Ailon-Ailon and Veloz-Alonso.

With respect to Veloz-Alonso’s assumption that ICE is required to detain and 

deport an alien who has illegally reentered the country and is subject to a reinstated 

order of removal, Mr. Barrera argues that Santos-Flores “rejected the idea that 

immigration authorities in reinstatement proceedings lack discretion.” Aplt. Mem. 

Br. at 15. But, as noted above, Santos-Flores did not address the issue here and 

nothing in that case compels us to reverse the district court in the face of 

overwhelming circuit authority to the contrary. 

Mr. Barrera also argues that ICE routinely violates the statutory 90-day time 

limit within which it must remove a person who is subject to the reinstatement of a 

prior removal order. Id. at 15-16. He contends that ICE officials do have discretion 

as to the timing of removal of a previously removed alien as evidenced by ICE 

referring this case to the U.S. Attorney’s Office for prosecution; “[p]resenting a case 

for criminal prosecution with no guarantee that it would be completed within 90 days 

contravenes ICE’s mandate under § 1231.” Id. at 16. Mr. Barrera appears to argue 

that because ICE has discretion as to the timing of removal, if ICE presents a 

criminal alien for federal prosecution, the court can order ICE to defer removal while 

the defendant is on pretrial release under the BRA. Citing § 3142 and Santos-Flores,

794 F.3d at 1091, he argues that “[i]f the government chooses to prosecute, it must 

submit to the detention rules that govern criminal prosecutions.” Aplt. Reply. Br. 

at 8. But Mr. Barrera does not cite to any specific language in § 3142 that supports 
16

this proposition, and Santos-Flores did not reach this question. We do not find this 

argument persuasive; instead, we agree with the other circuits that have held the 

government does not need to make a choice between a criminal prosecution or 

removal. See, e.g., Lett, 944 F.3d at 471 (“The BRA and INA authorize the 

government to pursue both criminal prosecution and removal simultaneously, and 

there is no conflict between the detention-and-release provisions of the two 

statutes.”). 

In addition, Mr. Barrera has failed to provide authority to support the 

proposition that if ICE fails to remove Mr. Barrera within § 1231(a)’s 90-day 

timeframe, then it forfeits its ability to detain or remove him during his criminal 

proceedings and must defer to the conditions of his release under the BRA. 

Likewise, he offers no authority to support his position that ICE’s conduct in this 

case or others renders mandatory detention or removal under the INA discretionary. 

The relevant statutory provisions mandate Mr. Barrera’s detention and removal. 

Because the agency found Mr. Barrera deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) 

in its final order of removal, which has now been reinstated, he qualifies as a criminal 

alien subject to mandatory detention under § 1226(c)(1)(B) and removal within 

90 days under § 1231(a).6

6 Section 1226(c)(1)(B) states: “The Attorney General shall take into custody 

any alien who . . . is deportable by reason of having committed any offense covered 

in section [1227(a)(2)(A)(iii)] . . . of this title.” Section 1231(a)(1)(A) states: 

“[W]hen an alien is ordered removed, the Attorney General shall remove the alien 

from the United States within a period of 90 days . . . .” 
17

Mr. Barrera next argues that § 3142(d) supports his request to enjoin ICE from 

detaining or deporting him. But nothing in § 3142(d) authorizes a court to enjoin 

ICE. Section 3142(d)(1)(B) authorizes the temporary detention of a defendant for ten 

days if a judicial officer finds the person “is not a citizen of the United States or 

lawfully admitted for permanent residence . . . and such person may flee or pose a 

danger to any other person or the community.” The statute 

direct[s] the attorney for the Government to notify the . . . 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. § 3142(d) (emphasis added). Mr. Barrera argues that the language emphasized above 

“suggests that if the other jurisdiction with a claim to the person does not come get him, 

the federal release order controls. The person must be allowed to remain in the

community pursuant to the federal court order.” Aplt. Mem. Br. at 19.

Mr. Barrera’s reliance on the “notwithstanding” clause is misplaced. The 

clause instructs the court to “apply the BRA as it would to any other criminal 

defendant, notwithstanding the existence of parallel proceedings.” Lett, 944 F.3d 

at 472. The clause supports the conclusion that the INA remains applicable to 

defendants released under the BRA after the close of the ten-day period. See id.; 

see also Pacheco-Poo, 952 F.3d at 953 (the “notwithstanding” clause “does not affect 

whether ICE can seek removal”). And we agree with the other circuits that have 

addressed this same argument. First, “[t]he ten-day period is a limitation on the 
18

district court’s authority to release a defendant pursuant to the BRA. It has no 

bearing on the government’s authority to detain a defendant pursuant to the INA at a 

later date.” Lett, 944 F.3d at 472; see also Soriano Nunez, 928 F.3d at 245 n.5

(“An agency’s inaction [during the ten-day period] does not bar it from later taking 

custody of the individual pursuant to its lawful authority.”). Additionally, § 3142 is 

“a notice provision designed to give other agencies an opportunity to take custody of 

a defendant before a BRA release order is issued.” Soriano Nunez, 928 F.3d at 246. 

Nothing in § 3142(d)’s text “prevents ICE from enforcing a detainer or taking a 

defendant into custody for removal proceedings after an order of release under the 

BRA.” Id. (internal quotation marks omitted).

Finally, we address Mr. Barrera’s argument that certain immigration 

regulations favor delaying deportation over disrupting criminal prosecutions. See

Aplt. Mem. Br. at 22 (citing 8 C.F.R. §§ 215.2(a), 215.3(g)). But Mr. Barrera 

conflates deportation or removal with departure. The regulations he cites do not 

relate to removal, they apply to voluntary departures, see Ailon-Ailon, 875 F.3d 

at 1339 (characterizing §§ 215.2(a) and 215.3(g) as “regulations regarding voluntary 

departure”). “Voluntary departure is a discretionary form of relief that allows certain 

favored aliens—either before the conclusion of removal proceedings or after being 

found deportable—to leave the country willingly.” Dada v. Mukasey, 554 U.S. 1, 8 

(2008). 

The first regulation authorizes the government to prevent an alien from 

voluntarily departing “if his departure would be prejudicial to the interests of the 
19

United States under the provisions of § 215.3.” 8 C.F.R. § 215.2(a). And an alien 

could cause prejudice to the United States by voluntarily departing when he “is 

needed in the United States as a witness in, or as a party to, any criminal case under 

investigation or pending in a court of the United States.” Id. § 215.3(g). In that 

circumstance, the departure-control officer “shall serve [the alien] with a written 

temporary order directing him not to depart” until notified the order has been 

revoked. Id. § 215.2(a). 

In Lett, the defendant argued that these regulations supported a bar on ICE 

deporting alien criminal defendants “during the pendency of their criminal cases—

and therefore from detaining such defendants under the INA.” 944 F.3d at 472. But 

the Second Circuit rejected that argument, explaining that “these regulations merely 

prohibit aliens who are parties to a criminal case from departing from the United 

States voluntarily; they do not affect the government’s authority to deport such aliens 

pursuant to final orders of removal.” Id. at 472-73. Mr. Barrera was not granted 

voluntary departure. Because these regulations do not apply to alien criminal 

defendants like Mr. Barrera, who is subject to a final order of removal, we reject his 

argument that “[t]hese regulations undermine the government’s claim that it must 

remove certain aliens while criminal charges are pending.” Aplt. Mem. Br. at 22.

IV.

“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 coexistence, it is the duty of the courts, absent a clearly 
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expressed congressional intention to the contrary, to regard each as effective.’” 

Soriano-Nunez, 928 F.3d at 247 (quoting Vasquez-Benitez, 919 F.3d at 553). The 

BRA and the INA are capable of co-existing in the circumstances presented here. As 

the district court aptly stated, “[s]imply put, the [BRA] does not preclude INA 

removal.” Aplt. Unsealed App. at 159. Accordingly, we affirm that portion of the 

district court’s release order denying Mr. Barrera’s request to enjoin ICE from 

detaining or deporting him if he is released under the BRA.