964 F.3d 912
10th Cir.
2020
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Background

  • Jose Luis Barrera, a Mexican national with a prior final removal order (2011), reentered the U.S.; ICE arrested him, reinstated the prior removal order, and lodged a detainer. He was charged with illegal reentry (8 U.S.C. § 1326).
  • At first the district court remanded him (he had waived release to enter Fast Track); he later sought magistrate review and the magistrate found he qualified for pretrial release under the Bail Reform Act (BRA) with conditions.
  • Barrera asked the court to enjoin ICE from detaining or deporting him while his criminal case was pending; the magistrate and then the district court denied that relief, though both approved conditional release under the BRA.
  • The government did not appeal the release-on-conditions portion; Barrera appealed only the denial of an injunction preventing ICE custody/removal during the pendency of the criminal case.
  • The Tenth Circuit reviewed the legal question de novo and affirmed: a BRA release does not preclude ICE from taking custody or removing a noncitizen under the Immigration and Nationality Act (INA).

Issues

Issue Barrera's Argument Government's Argument Held
Whether a BRA release order prevents ICE from detaining or removing a noncitizen subject to a removal order while criminal proceedings are pending Government must choose prosecution or removal; if it prosecutes, it must submit to BRA detention rules and cannot detain/remove; ICE violated §1231(90-day) and cannot later take custody. BRA and INA serve separate functions and may coexist; release under BRA does not strip ICE of its independent INA authority to detain or remove. Court affirmed: BRA release does not preclude ICE custody or removal under INA; courts cannot force Executive to choose.
Whether 18 U.S.C. § 3142(d)’s ten-day/“notwithstanding” language bars later ICE custody if ICE fails to take a defendant during that period The §3142(d) “notwithstanding” clause means that if ICE does not take custody within the 10 days, the federal release order controls and ICE cannot later detain. The clause is a notice/temporary-detainment provision and does not extinguish ICE’s later INA authority; agency inaction during 10 days doesn’t bar subsequent custody. Court held §3142(d) does not preclude later ICE detention or removal; the ten-day rule limits only the court’s temporary detention power.
Whether the court has equitable or inherent supervisory authority to enjoin ICE from enforcing removal while criminal case is pending District court has inherent/equitable authority (or can issue TRO-like relief) to protect BRA release and assure appearance. Federal courts cannot use equitable power to override statutory INA detention/removal authority; Barrera waived the specific inherent-authority argument by inadequate presentation. Court treated the argument as waived and rejected the broader premise: no inherent authority to enjoin ICE from enforcing INA in these circumstances.

Key Cases Cited

  • United States v. Ailon-Ailon, 875 F.3d 1334 (10th Cir. 2017) (contemplated parallel BRA release and subsequent ICE custody pursuant to a detainer)
  • United States v. Lett, 944 F.3d 467 (2d Cir. 2019) (BRA and INA serve distinct purposes and may coexist; BRA release does not bar INA detention)
  • United States v. Vasquez-Benitez, 919 F.3d 546 (D.C. Cir. 2019) (BRA detention and INA detention are separate; BRA does not displace INA authority)
  • United States v. Soriano Nunez, 928 F.3d 240 (3d Cir. 2019) (§3142(d) is a notice provision; BRA release does not prevent later ICE custody)
  • United States v. Veloz-Alonso, 910 F.3d 266 (6th Cir. 2018) (reversing injunction that barred ICE from detaining an alien after BRA release; no statutory conflict)
  • United States v. Pacheco-Poo, 952 F.3d 950 (8th Cir. 2020) (BRA and INA can coexist; BRA contains no clear intent to subordinate INA)
  • United States v. Santos-Flores, 794 F.3d 1088 (9th Cir. 2015) (district courts must make individualized BRA determinations and cannot categorically detain based solely on ICE detainers)
  • United States v. Salerno, 481 U.S. 739 (1987) (legislative purpose of the BRA and principle that pretrial detention is carefully limited)
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