# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2019 Decided March 26, 2019

No. 18

- 3076

U NITED S TATES OF A MERICA , A PPELLANT

v.

J AIME O MAR V ASQUEZ

- B ENITEZ , ALSO KNOWN AS G UERO , ALSO KNOWN AS A LEX A NTONIO V ASQUEZ , ALSO KNOWN AS J AIME H UREO , ALSO KNOWN AS J ERMAN V ASQUEZ

- M ATO , ALSO KNOWN AS J ULIO I SRAEL V ASQUEZ , ALSO KNOWN AS H ERMAN E DUARDO V ASQUEZ ,

A PPELLEE

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 , T rial Attorney, Nicholas P. Coleman and Elizabeth2

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 h er 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: H ENDERSON and T ATEL , Circuit Judges , and G INSBURG , Senior Circuit Judge

. Opinion for the Court filed by Circuit Judge H ENDERSON

.

K AREN L E C RAFT H ENDERSON , Circuit Judge : Jaime Omar Vasquez

- Benitez is a citizen of El Salvador who has illegally entered the United States more th an 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 th e 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 ensur e his presence at his criminal trial and (2) that its ruling releasing him pre

- trial mean s 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 d eclining to detain Vasquez

- Benitez pending tria l but reverse its decision prohibiting ICE from civilly detain ing him pending removal.3

I

. B ACKGROUND

Vasquez

- Benitez first entered the country illegally sometime before 200 1 . 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. I n 2005

, he was accused of breaking into a woman’s residence in Washington, D.C., attempt ing to sexually assault her at knifepoi nt and threaten ing 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 w as arrested by the Metropolitan Police Department (“MPD”) for allegedly attack ing two individuals with a knife and identif ying himself as a member of the violent 18th Street gang. T he assault charges against him were dismissed , apparently before ICE was alerted to his presence , and he was relea sed into the community

. On July 12, 2018, MPD officers stopped Vasquez

Benitez 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 2 0, 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 84
U.S.C. § 1231, 1 authorizes 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 reenter ed 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

vo luntarily, 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 re moved 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 b een 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 m agistrate j ud ge. T he ma gistrate j udge continued Vasquez

Benitez’s initial appearance and granted the U.S. Attorney’s initial request to detain Vasquez

- Benitez pending further proceedings. On August 2 2

, Vasquez

- B enitez entered his initial appearance and on August 28 the m agistrate j udge conducted a detention hearing under the Bail Reform Act (“BRA”), 18 U.S.C. § 314 2. 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 detain ed 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 a ppeal but the district judge denied the motion

. The U.S. Marshal subsequently released Vasquez

Benitez and ICE then took custody of hi m

. 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 prejudic e

. 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 new6
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

- Benit ez 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 c harge with prejudice. On September 26, the district judge issued an o rder grant ing 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 a nd 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 o f 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 judge s t hat “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 Vasquez

Benitez 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 prosecu tion .”7

II. B AIL R EFORM A CT R ELEASE

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 condit ions will reasonably assure the appearance of the person as required and the s afety of any other person and the community.” In common parlance,
t he 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 t he 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 charg ed ”; (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

commun ity, 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 predeces sors 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, Vasquez

Benitez presents a plausible argument as to why he is not a flight risk ; e ven 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
app ears 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 ag ainst 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 remove d. 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 c an 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 tha t, 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 ap pear at judicial proceedings by appearing in his 2016 case. F ifth

— 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 . In deed, 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 vi olent crime and that he has left the 1 8th Street gang

. Although one may doubt the credibility of Vasquez

Benitez’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 44 1, 444 (D.C. Cir. 1996) (per curiam) , we cannot say that the district judge whose order is under review clearly erred

.

I II

. C IVIL D ETENTION U NDER THE I MMIGRATION AND

N ATIONALITY A CT

Next, we review the district court ’s September 26 order barring ICE from civilly detain ing 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 the10 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 (emphas e s added). Second, it held, “[r]easoning from first
pr inciples,” 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 3 72 , 3 74

– 75 (D.C. Cir. 200 1 ), 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 “su pervisory 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 Se curity’s detention of a criminal defendant alien for the purpose of removal does not infringe on the judiciary’s role in criminal proceedings

. D etention of a criminal defendant pending trial pursuant to the BRA and detention of a removable alien pursuant t o 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 Exec utive’s authority to execute that power. See Demore v. Kim , 538 U.S. 510, 523, 531 (2003). S o long as ICE detain s the alien for the permissible purpose of effectuating his removal and not to “skirt [the] Court’s decision [in] setting the terms of [his] rel ease under the BRA,” Opinion and Order at 7, ICE’s detention does not offend separation

- of

- powers principle s11
simply because a federal court , acting pursuant to the BRA, has ordered that same alien released pending his criminal trial. Thus, we see no consti tutional 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 o f 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 to12

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 , t he 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 pre

empts more general remedies,’ even where both ‘literally appl[y]. ’ ” Opinion and Order at 3 (q uoting 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 cho ose 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 (197 4). 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 beg u n its analysis with Morton instead of Brown
, perhaps it would not have found a conflict where there is no ne

. 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 als o, e.g., United States v. Rangel , 318 F. Supp. 3d 1212 , 1217

– 19 (E.D. Wa sh . 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 B RA’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, o ur holding is limited

— we conc lude 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 Im migration and Customs Enforcement

.
So ordered

.