UNITED STATES OF AMERICA, Appellant, v. KESTON LETT, Defendant-Appellee.
Docket No. 18-749-cr
United States Court of Appeals for the Second Circuit
December 12, 2019
August Term, 2019 (Argued: October 17, 2019)
Before: WINTER, POOLER, and PARK, Circuit Judges.
The United States appeals a decision of the United States District Court for the Eastern District of New York (Brodie, J.) dismissing an indictment against Keston Lett with prejudice. Notwithstanding a district court‘s release order pursuant to the Bail Reform Act, the government has the authority under the Immigration and Nationality Act to detain a criminal defendant who is an alien
DAVID LIZMI, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Appellant.
S. ISAAC WHEELER, Federal Defenders of New York, New York, New York for Defendant-Appellee.
Park, Circuit Judge:
This case presents the question whether a district court‘s authority to release criminal defendants under the Bail Reform Act (“BRA“) is inconsistent with the government‘s authority to detain aliens under the Immigration and Nationality Act (“INA“). The district court found that these two statutes are in conflict and that a release order pursuant to the BRA precludes the government from detaining a criminal defendant pursuant to the INA. We conclude that there is no conflict between the detention-and-release provisions of the two statutes, and we hold that immigration authorities may lawfully detain a criminal defendant ordered to be released under the BRA pursuant to their authority under the INA to detain aliens seeking admission into the United
I
Keston Lett is a citizen of Trinidad and Tobago who was arrested at John F. Kennedy International Airport after United States Customs and Border Protection (“CBP“) allegedly found 2.12 kilograms of cocaine in his suitcase. CBP paroled Lett into the United States for criminal prosecution and transferred him to the custody of the Bureau of Prisons (“BOP“), and the government filed a criminal complaint charging Lett with importing cocaine in violation of
Lett filed a motion to dismiss the indictment in his criminal case, arguing that his continued detention by ICE violated the BRA. The district court heard oral argument on Lett‘s motion and ordered the government to release Lett within a week “if it intended to proceed with the prosecution.” App‘x at 89. The district court concluded that, under the BRA, the government had “to either decide to prosecute a defendant such as Mr. Lett or proceed with removal proceedings to deport him, one or the other.” App‘x at 83. One week later, the government submitted a letter to the district court explaining that ICE would not
II
“We review conclusions of law and questions of statutory interpretation de novo.” Lander v. Hartford Life & Annuity Ins. Co., 251 F.3d 101, 107 (2d Cir. 2001).
A
“The 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). Here, there is no statutory conflict between the detention-and-release provisions of the BRA and the INA.
Congress enacted the BRA to address “the way federal courts consider bail applications and the circumstances under which bail is granted.” United States v. Salerno, 481 U.S. 739, 742 (1987). Pursuant to the BRA, if a judicial officer, after a hearing, “finds that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of any other
Separately, Congress enacted the INA,
The BRA and the INA thus serve different purposes, govern separate adjudicatory proceedings, and provide independent statutory bases for detention. There is no conflict between the detention-and-release provisions of the two statutes. The government‘s authority to detain an alien pursuant to the INA “does not disappear merely because the U.S. Marshal cannot detain him under the BRA pending his criminal trial.” Vasquez-Benitez, 919 F.3d at 553. A district court‘s conclusion that a person is not a flight risk or a danger to the community under the BRA has no bearing on whether that individual can demonstrate that he is “clearly and beyond a doubt entitled to be admitted” to
We therefore conclude, as the Third, Sixth, and D.C. Circuits have recently held, that the BRA does not preclude the government from exercising its independent detention authority under the INA. See United States v. Soriano Nunez, 928 F.3d 240, 247 (3d Cir. 2019) (holding that “there is no textual conflict between the BRA and the INA,” and that “criminal and removal processes can proceed simultaneously“); Vasquez-Benitez, 919 F.3d at 553 (“Congress has never indicated that the BRA is intended to displace the INA.“); United States v. Veloz-Alonso, 910 F.3d 266, 269 (6th Cir. 2018) (“[N]othing in the BRA prevents other government agencies or state or local law enforcement from acting pursuant to their lawful duties.“).
The district court below, joining several other district courts in our Circuit and around the country, held to the contrary that pretrial release under the BRA forecloses detention under the INA. See, e.g., United States v. Boutin, 269 F. Supp. 3d 24 (E.D.N.Y. 2017); United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012); United States v. Ventura, No. 17-cr-418, 2017 WL 5129012 (E.D.N.Y. Nov. 3, 2017); United States v. Galitsa, No. 17-cr-324, 2017 U.S. Dist. LEXIS 185550 (S.D.N.Y. July 28, 2017). The district court reasoned that the government was required to choose whether it wished “to prosecute a defendant such as Mr. Lett or proceed with removal proceedings to deport him, one or the other.” App‘x at 83; see also Trujillo-Alvarez, 900 F. Supp. 2d at 1179 (“[T]he Executive Branch 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.“); Ventura, 2017 WL 5129012, at *2 (“[T]he Executive branch should decide where its priorities lie: either with a prosecution in federal district court or with removal of the deportable alien.“).
But neither the BRA nor the INA precludes the government from exercising its detention authority pursuant to the other statute. Nor can the courts order the Executive Branch to choose between criminal prosecution and removal. As the Sixth Circuit observed, “[r]eading 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.” Veloz-Alonso, 910 F.3d at 270. The BRA and the INA authorize the government to pursue both criminal prosecution and removal simultaneously, and there is no
B
Lett‘s arguments to the contrary are unavailing.
First, Lett argues that the BRA takes precedence over the INA. He points to section 3142(d) of the BRA, which provides that, if a judicial officer determines that a defendant “may flee or pose a danger to any other person or the community” and is “not a citizen of the United States or lawfully admitted for permanent residence,” then
such judicial officer shall order the detention of such person, for a period of not more than ten days, . . . 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.
This argument misconstrues section 3142(d). The ten-day period is a limitation on the 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. Section 3142(d) is primarily 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; see also id. (“By providing these other agencies an opportunity to take custody of such persons, the BRA effectively gives respect to pending cases and allows those officials to act before bail is set in the federal case.“). “The BRA‘s temporary detention scheme thus reflects Congress’ recognition that immigration authorities . . . have separate interests.” Id. It does not “give[] a district court the authority to compel another sovereign or judge in federal administrative proceedings to release or detain a defendant.” Id.
Second, Lett asserts that detention pursuant to the INA is not mandatory and that the government could have exercised its discretion to extend his parole into the United States until the conclusion of his criminal case. Even assuming
Third, Lett contends that ICE is barred from deporting criminal defendants during the pendency of their criminal cases—and therefore from detaining such defendants under the INA—pursuant to its own regulations. See
Finally, Lett contends that the government‘s decision to initiate administrative proceedings and to detain him pursuant to the INA was pretextual and intended to secure his appearance in the criminal case. But the district court did not address this issue, and Lett argued below that it did not need to do so. Accordingly, Lett‘s pretext argument is waived, and we need not address it. See In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (“It is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.“) (internal quotation marks and alterations omitted).
III
For the foregoing reasons, the judgment of the district court is VACATED, and we REMAND with instructions for the district court to reinstate the indictment against Lett.