United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2019 Decided March 26, 2019

No. 18-3076

UNITED STATES OF AMERICA,

APPELLANT

v.

JAIME OMAR VASQUEZ-BENITEZ,

ALSO KNOWN AS GUERO,

ALSO KNOWN AS ALEX ANTONIO VASQUEZ,

ALSO KNOWN AS JAIME HUREO,

ALSO KNOWN AS JERMAN VASQUEZ-MATO,

ALSO KNOWN AS JULIO ISRAEL VASQUEZ,

ALSO KNOWN AS HERMAN EDUARDO VASQUEZ,

APPELLEE

Consolidated with 18-3080

Appeals from the United States District Court

for the District of Columbia

(No. 1:18-cr-00275-1)

Kathryne Gray, Trial Attorney, United States Department 

of Justice, argued the cause for the appellant. Jessie K. Liu,

United States Attorney, Erez Reuveni, Director, Joshua S. 

Press, Trial Attorney, Nicholas P. Coleman and Elizabeth 
2

Trosman, Assistant United States Attorneys were with her on 

brief.

Julia Fong Sheketoff, Assistant Federal Public Defender, 

argued the cause for the appellee. A.J. Kramer, Federal Public 

Defender was with her on brief. Mary M. Petras, Assistant 

Federal Public Defender, entered an appearance.

Yihong Mao was on brief for the amicus curiae National 

Immigration Project of the National Lawyers Guild in support 

of the appellee.

Before: HENDERSON and TATEL, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Jaime Omar 

Vasquez-Benitez is a citizen of El Salvador who has illegally 

entered the United States more than once and been removed 

from the country at least once. Upon his most recent entry, 

Immigration and Customs Enforcement (“ICE”) civilly 

detained him for the purpose of removing him from the

country. The United States Attorney for the District of 

Columbia (“U.S. Attorney”) also criminally charged him with 

unlawful reentry. Both his criminal and civil proceedings are 

currently ongoing. The district court decided (1) that it is

unnecessary to detain Vasquez-Benitez in order to ensure his 

presence at his criminal trial and (2) that its ruling releasing

him pre-trial means ICE cannot civilly detain Vasquez-Benitez

in order to remove him from the country. The United States 

appeals both decisions. We affirm the district court’s decision

declining to detain Vasquez-Benitez pending trial but reverse 

its decision prohibiting ICE from civilly detaining him pending

removal.
3

I. BACKGROUND

Vasquez-Benitez first entered the country illegally 

sometime before 2001. In 2001, a bench warrant was issued for 

his arrest after he failed to appear in California state court on a 

charge of driving without a license. In 2005, he was accused of 

breaking into a woman’s residence in Washington, D.C., 

attempting to sexually assault her at knifepoint and threatening

retaliation if she called the police. He stood trial in D.C. 

Superior Court, where he was acquitted of certain charges but 

convicted of obstruction of justice based on the threat. He was 

sentenced to a term of three years’ imprisonment, which he 

served from 2005 until 2008. Upon his release in 2008, ICE 

initiated proceedings to remove him from the country and he 

was removed to El Salvador. He reentered the country 

sometime before 2016, when he was arrested by the 

Metropolitan Police Department (“MPD”) for allegedly 

attacking two individuals with a knife and identifying himself 

as a member of the violent 18th Street gang. The assault 

charges against him were dismissed, apparently before ICE 

was alerted to his presence, and he was released into the 

community. On July 12, 2018, MPD officers stopped VasquezBenitez because his torso and arms were covered in tattoos 

associated with 18th Street and arrested him for suspected gang 

activity. This time the MPD contacted ICE.

A. The Civil Proceedings

ICE identified Vasquez-Benitez as an illegal alien subject 

to a final order of removal and took him into immigration 

custody pursuant to 8 U.S.C. § 1231(a)(5). On July 20, he

asserted a basis for withholding of removal. Proceedings to 

assess his claim are ongoing. The United States believes the 

Immigration and Nationality Act (“INA”), specifically 8 
4

U.S.C. § 1231,1authorizes Vasquez-Benitez’s civil detention 

until the removal proceedings are concluded, which authority 

he disputes.

2

B. The Criminal Proceedings

On August 16, 2018, an ICE officer, with probable cause 

to believe Vasquez-Benitez had illegally reentered the country 

in violation of 8 U.S.C. § 1326,

3

obtained an arrest warrant. On 

August 20, Vasquez-Benitez was arrested and appeared before 

 

1

 See 8 U.S.C. § 1231(a)(2) (“During the removal period, the 

Attorney General shall detain the alien.”); 8 U.S.C. § 1231(a)(5) (“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 any relief 

under this chapter, and the alien shall be removed under the prior 

order at any time after the reentry.”); 8 U.S.C. § 1231(a)(6) (“An 

alien ordered removed who is inadmissible under section 1182 of this 

title, removable under section 1227(a)(1)(C), 1227(a)(2), or 

1227(a)(4) of this title or who has been determined by the Attorney 

General to be a risk to the community or unlikely to comply with the 

order of removal, may be detained beyond the removal period . . . .”).

2 We do not reach Vasquez-Benitez’s argument that ICE lacks 

authority under the INA to detain him, which he failed to adequately 

raise below.

3

 See 8 U.S.C. § 1326(a) (“Subject to subsection (b), any alien 

who—(1) has been . . . removed [from the United States] . . . and 

thereafter (2) enters, attempts to enter, or is at any time found in, the 

United States . . . shall be fined under title 18, or imprisoned not 

more than 2 years, or both.”); 8 U.S.C. § 1326(b) (“Notwithstanding 

subsection (a), in the case of any alien described in such subsection—

(1) whose removal was subsequent to a conviction for . . . a felony 

(other than an aggravated felony), such alien shall be fined under title 

18, imprisoned not more than 10 years, or both[.]”).
5

a magistrate judge. The magistrate judge continued VasquezBenitez’s initial appearance and granted the U.S. Attorney’s 

initial request to detain Vasquez-Benitez pending further 

proceedings.

On August 22, Vasquez-Benitez entered his initial 

appearance and on August 28 the magistrate judge conducted a 

detention hearing under the Bail Reform Act (“BRA”), 18 

U.S.C. § 3142. The magistrate judge declined to detain 

Vasquez-Benitez pending trial because the U.S. Attorney “did 

not argue that the defendant should be held because he is a 

danger” and did not “show by a preponderance of the evidence 

that he’s a serious risk of flight.” The magistrate judge ordered 

that Vasquez-Benitez be released from the custody of the U.S. 

Marshal subject to restrictive conditions. The U.S. Attorney

immediately moved in district court to revoke the magistrate 

judge’s order and requested a stay of the order pending further 

proceedings. A district judge granted the stay motion and 

scheduled a hearing to consider the motion to revoke. On 

August 30, the district judge denied the U.S. Attorney’s

revocation motion, finding “no reason to change the decision” 

by the magistrate judge that Vasquez-Benitez need not be 

detained pending trial under the BRA. The district judge

ordered that Vasquez-Benitez be released from the custody of 

the U.S. Marshal subject to the same restrictive conditions

imposed by the magistrate judge. The U.S. Attorney moved to 

stay the order pending appeal but the district judge denied the 

motion. The U.S. Marshal subsequently released VasquezBenitez and ICE then took custody of him.

On September 7, Vasquez-Benitez filed a motion to 

compel his release from ICE custody or, in the alternative, to 

dismiss the criminal charge against him with prejudice. On 

September 13, the grand jury indicted Vasquez-Benitez on one 

count of reentry of an alien deported following a felony 

conviction, in violation of 8 U.S.C. § 1326(a), (b)(1), and the

case was reassigned to a different district judge. The new 
6

district judge scheduled an arraignment and motion hearing for 

September 18 and a magistrate judge issued a writ of habeas 

corpus ad prosequendum, ordering ICE to transfer custody of 

Vasquez-Benitez to the U.S. Marshal so that he could attend 

the hearing. At the hearing, Vasquez-Benitez pleaded not guilty

and the district judge heard oral argument on his motion to 

compel his release from ICE custody or, in the alternative, to 

dismiss the criminal charge with prejudice.

On September 26, the district judge issued an order

granting Vasquez-Benitez’s motion to compel his release. The 

district judge held that ICE loses its authority to civilly detain 

an illegal alien pending removal under the INA if that alien is

charged with a crime and the court finds there is no need to 

detain him pending trial under the BRA. The district judge also 

announced his intention to reconsider, in light of new evidence, 

the BRA detention decision reached by the magistrate judge 

and the previous district judge. On September 27, the district 

judge conducted another detention hearing and—after 

considering the new evidence—agreed with the two

predecessor judges that “there is not a sufficient risk of flight 

to justify pretrial detention.” The district judge subsequently 

entered an order directing the U.S. Marshal to release VasquezBenitez and not to return him to ICE custody.

In this consolidated appeal the U.S. Attorney challenges 

the district court decision releasing Vasquez-Benitez pre-trial

under the BRA; separately, the Office of Immigration 

Litigation of the Civil Division of the Department of Justice 

challenges the district court order “prohibiting [ICE] from 

administratively detaining the defendant for immigration 

proceedings during the pendency of his criminal prosecution.”
7

II. BAIL REFORM ACT RELEASE

We first review the district court’s decision not to detain 

Vasquez-Benitez under the BRA. 18 U.S.C. § 3142(e)(1)

mandates that a judge detain a criminal defendant pending trial 

if “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.” In common parlance, 

the relevant inquiry is whether the defendant is a “flight risk”

or a “danger to the community.” The second district judge 

agreed with the original district judge as well as the magistrate 

judge that, because Vasquez-Benitez is neither a flight risk nor 

a danger to the community, there is no need to detain him 

pending trial. The U.S. Attorney claims the second district 

judge clearly erred in finding that Vasquez-Benitez is not a 

flight risk. We disagree.4

The four factors a court must consider to determine

whether an individual is a flight risk are (1) “the nature and 

circumstances of the offense charged”; (2) “the weight of the 

evidence against the person”; (3) “the history and 

characteristics of the person,” including “the person’s 

character, physical and mental condition, family ties, 

employment, financial resources, length of residence in the 

community, community ties, past conduct, history relating to 

drug or alcohol abuse, criminal history, and record concerning 

appearance at court proceedings”; and (4) “the nature and 

seriousness of the danger to any person or the community that 

would be posed by the person’s release.” 18 U.S.C. § 3142(g). 

A determination that an individual is a flight risk must be 

 

4

 Because the second district judge agreed with his two 

predecessors that Vasquez-Benitez need not be detained, we do not 

reach Vasquez-Benitez’s argument that the second district judge 

lacked the authority to reopen the detention hearing under 18 U.S.C. 

§ 3142(f).
8

supported by a preponderance of the evidence. United States v. 

Vortis, 785 F.2d 327, 328–29 (D.C. Cir. 1986) (per curiam).

We agree with both parties that we review for clear error

the district court’s determination that a defendant is not a flight 

risk. See United States v. Smith, 79 F.3d 1208, 1209 (D.C. Cir. 

1996) (per curiam) (applying clear error standard of review to 

district court’s determination that defendant is danger to 

community). Regardless what we may have found in the first 

instance, we cannot conclude that the second district judge—

and by extension two other judges—clearly erred in finding

that Vasquez-Benitez is not a flight risk. Indeed, VasquezBenitez presents a plausible argument as to why he is not a 

flight risk; even assuming the second § 3142(g) factor weighs 

against him,

5

the other three factors can be understood to favor 

him. With respect to the first factor, “the nature and 

circumstances of the charged offense,” illegal reentry is a 

nonviolent crime. See 8 U.S.C. § 1326(a). In this case, it 

appears to carry with it a relatively low penalty, as the U.S. 

Attorney offered Vasquez-Benitez a plea deal with a low end 

of the sentencing guidelines range of twelve months 

imprisonment. With respect to the third factor, “the history and 

characteristics of the person,” Vasquez-Benitez makes a host 

of relevant arguments. First, he points out that he has a wife, 

 

5

 The second factor is “the weight of the evidence against the 

person.” 8 U.S.C. § 1326 prohibits any alien who has been removed 

from the country from entering, attempting to enter or being found 

in the United States. No one disputes that Vasquez-Benitez has been 

found in the United States after being removed. Nevertheless, 

Vasquez-Benitez argues that the “weight of the evidence” against 

him is not as strong as it appears because the original removal order 

entered against him was procedurally invalid. We need not decide 

the validity of that order because we can affirm the district court’s 

determination that Vasquez-Benitez is not a flight risk even if this 

factor weighs against him.
9

two children and a job as a dishwasher in the D.C. area. Second,

he emphasizes that, although he has been accused of multiple 

crimes, he has been convicted only of obstruction of justice 

nearly fifteen years ago. Third, he pledges that he has left the 

18th Street gang. Fourth, he points out that he has 

demonstrated his willingness to appear at judicial proceedings

by appearing in his 2016 case. Fifth—and critically—he argues 

that he must not flee if he wishes to preserve his opportunity to 

obtain withholding of removal in his immigration case. Indeed, 

in order to convince an immigration judge that he is credible, 

he must abide by the district court’s orders. With respect to the 

fourth factor, the danger to the community if he is released, 

Vasquez-Benitez emphasizes that he has never been convicted 

of a violent crime and that he has left the 18th Street gang.

Although one may doubt the credibility of VasquezBenitez’s narrative, we are not well-positioned, as appellate 

judges, to make credibility determinations. That is a task best

left to the trial court. In this case, three different trial judges 

have determined that Vasquez-Benitez is not a flight risk.

Especially considering “the large discretion normally accorded 

the trial court in this area,” United States v. Xulam, 84 F.3d 441, 

444 (D.C. Cir. 1996) (per curiam), we cannot say that the 

district judge whose order is under review clearly erred.

III. CIVIL DETENTION UNDER THE IMMIGRATION AND 

NATIONALITY ACT

Next, we review the district court’s September 26 order 

barring ICE from civilly detaining Vasquez-Benitez pending 

removal once he was ordered released pursuant to the BRA. 

The district court held that, when the U.S. Attorney chooses to 

bring criminal charges against a defendant subject to removal 

under the INA, “a judicial order under the Bail Reform Act 

provides the sole avenue for detaining defendant while the 
10

charges are pending.” Opinion and Order, District Ct. Docket, 

ECF 26 at 1. First, it held that 18 U.S.C. § 3142(d), a “specific

provision for detaining removable aliens charged with illegal 

reentry,” supersedes “the INA’s general authority to detain 

removable aliens” like Vasquez-Benitez. Opinion and Order at 

4 (emphases added). Second, it held, “[r]easoning from first 

principles,” that “the government’s invocation of concurrent 

and independent detention authority under the INA runs 

counter to our Constitution’s text, structure, and history.” Id. at 

5.

Reviewing these legal conclusions de novo, see Eldred v. 

Reno, 239 F.3d 372, 374–75 (D.C. Cir. 2001), we disagree. 

Vasquez-Benitez wisely makes no attempt to defend the district 

court’s constitutional analysis on appeal. The district court 

based its analysis on the premise that the Constitution vests in 

the judiciary “supervisory authority over the administration of 

criminal justice in the federal courts.” Opinion and Order at 6 

(quoting Offutt v. United States, 348 U.S. 11, 13 (1954)). We 

need not address the validity of that premise because the 

Department of Homeland Security’s detention of a criminal 

defendant alien for the purpose of removal does not infringe on

the judiciary’s role in criminal proceedings. Detention 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. The Supreme Court has affirmed that civil 

detention is a constitutionally permissible part of the 

Congress’s broad power over immigration and the Executive’s 

authority to execute that power. See Demore v. Kim, 538 U.S. 

510, 523, 531 (2003). So long as ICE detains the alien for the 

permissible purpose of effectuating his removal and not to 

“skirt [the] Court’s decision [in] setting the terms of [his] 

release under the BRA,” Opinion and Order at 7, ICE’s 

detention does not offend separation-of-powers principles
11

simply because a federal court, acting pursuant to the BRA, has 

ordered that same alien released pending his criminal trial.

Thus, we see no constitutional conflict of the kind articulated

by the district court.

Neither do we see a statutory conflict. 18 U.S.C. § 3142(d) 

applies only if a “judicial officer determines that . . . [the 

defendant] may flee or pose a danger to any other person or the 

community.” 18 U.S.C. § 3142(d)(2).6 As already discussed, 

 

6

 18 U.S.C. § 3142(d) provides:

If the judicial officer determines[, upon the appearance 

before the judicial officer of a person charged with an 

offense,] that –

(1) such person –

* * *

(B) is not a citizen of the United States or lawfully 

admitted for permanent residence, as defined in 

section 101(a)(20) of the Immigration and 

Nationality Act (8 U.S.C. 1101(a)(20)); and

(2) such person may flee or pose a danger to any 

other person or the community;

such judicial officer shall order the detention of such 

person, for a period of not more than ten days, excluding 

Saturdays, Sundays, and holidays, and direct 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. If 

temporary detention is sought under paragraph (1)(B) of 

this subsection, such person has the burden of proving to 
12

the district court decided that Vasquez-Benitez is not a flight 

risk or a danger to the community and therefore § 3142(d)(2) 

does not apply. In short, the supposed conflict between the 

BRA and the INA simply does not exist in this case.

Nor do the BRA and the INA conflict more generally. 

Individuals are detained under the BRA under authority 

separate from that used to detain individuals under the INA. A 

criminal defendant is detained under the BRA to ensure his 

presence at his criminal trial and the safety of the community. 

See 18 U.S.C. § 3142(e)(1). An illegal alien is detained under 

the INA to facilitate his removal from the country. See 8 U.S.C. 

§ 1231(a)(2). 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. 

A further word is warranted. The district court relied on

the principle “‘that a precisely drawn, detailed statute preempts more general remedies,’ even where both ‘literally 

appl[y].’” Opinion and Order at 3 (quoting Brown v. Gen. 

Servs. Admin., 425 U.S. 820, 834 (1976)). There is, however, 

another principle that should have guided its resolution of the 

antecedent question whether two statutes “literally apply”—

that is, “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.” Morton v. Mancari, 417 U.S. 535, 551 

(1974). The Congress has never indicated that the BRA is 

intended to displace the INA. See 18 U.S.C. § 3142. Had the 

 

the court such person’s United States citizenship or lawful 

admission for permanent residence.

18 U.S.C. § 3142(d) (emphasis added).
13

district court begun its analysis with Morton instead of Brown, 

perhaps it would not have found a conflict where there is none.

We acknowledge that some district courts over the past 

several years have held, like the district court here, that the 

BRA and the INA conflict in cases like this one. See United 

States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1179 (D. Or. 

2012); see also, e.g., United States v. Rangel, 318 F. Supp. 3d 

1212, 1217–19 (E.D. Wash. 2018); United States v. Boutin, 269 

F. Supp. 3d 24, 26–29 (E.D.N.Y. 2017). But the Sixth Circuit 

recently became the first appellate court to weigh in on the 

issue and it found “no conflict between the BRA and INA in 

the manner which the Trujillo-Alvarez cases . . . ruled.” See 

United States v. Veloz-Alonso, 910 F.3d 266, 270 (6th Cir. 

2018). It reasoned that “[t]he 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.” Id. We agree with the Sixth 

Circuit. That said, our holding is limited—we conclude only 

that the district court erred in prohibiting the U.S. Marshal from 

returning Vasquez-Benitez to ICE based on the mistaken belief 

that “the BRA provides the exclusive means of detaining a 

defendant criminally charged with illegal reentry.” Opinion

and Order at 3.

For the foregoing reasons, we affirm the district court 

order releasing Vasquez-Benitez from pre-trial custody under 

the Bail Reform Act but vacate its order prohibiting the U.S. 

Marshal from delivering Vasquez-Benitez to the custody of 

Immigration and Customs Enforcement.

So ordered.