United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Oscar
Garcia-Chagala's Motion to Vacate (Doc. 17),
filed on November 30, 2017. The Government filed its Response
in Opposition (Doc. 23) on December 14, 2017. The
matter is ripe for review.
faces a one count indictment for violating 8 U.S.C. §
1326(a) by being an alien in the United States who had been
previously deported, excluded, and removed and who did not
receive consent to reapply for admission. (Doc. 1 at 1-2). On
November 16, 2017, United States Magistrate Judge Carol
Mirando held a full detention hearing in this matter that
lasted nearly an hour and included testimony from
Garcia-Chagala's wife, Maribel Jaimez, as well as
argument by both parties. (Docs. 13, 14, 17 at 5). Upon
consideration, Judge Mirando ordered Garcia-Chagala detained
pending trial. (Doc. 14).
decision, Judge Mirando relied on the Government's
proffer, which included the fact that Garcia-Chagala had
previously been deported from the United States in 2006 and
had not been given permission to return. (Doc. 14 at 2).
Judge Mirando also relied on the nature and circumstances of
the of the offense, including that Garcia-Chagala was a
citizen of Mexico, that he had previously been charged with
illegal re-entry to the United States, that he has an
immigration detainer lodged against him, the possibility that
Garcia-Chagala will be removed from the United States if
released, that his immigration status precludes his legal
employment in the United States, and the fact that he has
strong ties to Mexico, where his parent and siblings live.
(Doc. 14 at 2). Finally, Judge Mirando noted that
although Jaimez and Garcia-Chagala's children are
American citizens, and that he had lived in the United States
for approximately six years, his appearance could not be
reasonably assured because Jaimez testified that she abided
Garcia-Chagala's improper residence in the United States
prior to his apprehension. (Doc. 14 at 2).
requested, the district court must promptly undertake an
evaluation of the propriety of a magistrate judge's
pre-trial detention order. See 18 U.S.C. §
3145(b); see also United States v. Garcia-Enriquez,
No. 2:15-CR-95-FTM-38MRM, 2015 WL 5159129, *2 (M.D.Fla. Sept.
2, 2015). A district court reviews de novo a magistrate
judge's pre-trial release order. U.S. v.
Megahed, 519 F.Supp.2d 1236, 1241-1242 (M.D.FIa.2007)
(citing U.S. v. Hurtado, 779 F.2d 1467, 1481 (11th
Cir.1985)). Review by the district court contemplates an
“independent consideration of all facts properly before
it, ” Megahed, 519 F.Supp.2d at 1241 (citing
U.S. v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987)
(citing Hurtado, 779 F.2d at 1480-81)). If the
district court concludes after a careful review the
magistrate judge's findings of facts based on both the
parties' papers and the evidence presented at the
detention hearing, and the magistrate judge correctly applied
the law, “[t]he court may then explicitly adopt the
magistrate's pre-trial [release] order.” U.S.
v. King, 849 F.2d 485, 490 (11th Cir.1988). However, if
necessary to the resolution of an essential issue of fact,
the district court may marshal further evidence by convening
a hearing. Megahed, 519 F.Supp.2d at 1242.
objects to Judge Mirando's Detention Order on the grounds
that (1) the existence of an immigration detainer does not
prohibit pretrial release; (2) that it was error for Judge
Mirando to rely on evidence of the immigration detainer and
possible deportation in arriving at her decision to detain
Garcia-Chagala pending trial; and (3) that the Court has
inherent supervisory power to enforce its detention order.
Court will first confront the issue relating to the
immigration detainer. An immigration detainer is a notice
issued by federal immigration officials to other law
enforcement agencies. 8 C.F.R. § 287.7(a). It advises
such agencies that have taken an undocumented immigrant into
custody that the immigration official seeks custody upon
release for the purpose of arrest and removal. Id.;
Christopher N. Lasch, Federal Immigration Detainers After
Arizona v. United States, 46 Loy. L.A. L. Rev. 629, 675
within the Eleventh Circuit have found that the existence of
an immigration detainer does not presumptively establish the
propriety of pretrial detention. United States v.
Blas, No. CRIM. 13-0178-WS-C, 2013 WL 5317228, at *4 n.
9 (S.D. Ala. Sept. 20, 2013); see also United States v.
Resendiz-Guevara, 145 F.Supp.3d 1128, 1132 (M.D. Fla.
2015). Nevertheless, the law is clear that it can be
considered as a factor in a court's detention decision.
See United States v. Alverez-Lopez, No.
2:14-CR-45-FTM-38CM, 2014 WL 2563646, at *4 (M.D. Fla. June
6, 2014); see also U.S. v. Al'Sagga,
2014 WL 252035, *3 (S.D. Fla. January 7, 2014). This makes
sense because of the incentive it provides for a defendant to
flee should pretrial release be granted.
Garcia-Chagala attempts to redirect the findings of courts
that have considered the presence of immigration detainers in
the past by pointing to language inserted into the form
language of the document in March 2017, and present in this
case. Now, the immigration detainer contains a provision that
states it “arises from [Department of Homeland
Security] authorities and should not impact decisions about
the alien's bail, rehabilitation, parole, release . . .
or other matters.” (Doc. 17-1). But
Garcia-Chagala's argument is a non-starter because an
immigration detainer is merely an administrative document. On
its face, the language of such a document cannot change a
legal calculus. Moreover, the Court does not discern any
change in the law that would merit breaking with the past
findings of its sister courts. It will thus decline
Garcia-Chagala's overture to do so.
Garcia-Chagala argues that the potential of his removal from
the United States upon release should not have played into
the merits of his detention. He is correct. Federal law
enforcement may take two paths of enforcement when it finds
that an individual is present in the United States without
authorization after a previous removal. On the one hand, it
may immediately seek removal. 8 U.S.C. § 1227(a)(1)(B).
On the other, it may pursue criminal prosecution.
Id. at § 1326(a). Through these options,
Congress has granted the Executive Branch, and specifically
the Department of Justice, a measure of discretion in its
enforcement of the laws.
prosecution is chosen, the individual may not be removed
until after the date he or she is “released from
detention or confinement.” Id. at §
1231(a)(1)(B)(iii). The Eleventh Circuit has found this to
preclude removal until the individual is fully released for a
crime with which he is charged. Themeus v. U.S. Dep't
of Justice,643 Fed.Appx. 830, 833 (11th Cir. 2016).
Similarly, courts within the Eleventh Circuit have found the
provision to include “person[s] [that have] been
released subject to conditions of pretrial supervision . . .
because [they are] subject to restraints not shared by the
public generally that significantly confine and restrain