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United States v. Garcia-Chagala

United States District Court, M.D. Florida, Fort Myers Division

December 20, 2017


          OPINION AND ORDER [1]


         This 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.


         Garcia-Chagala 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).

         In her 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).


         When 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.


         Garcia-Chagala 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.

         The 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 (2013).

         Courts 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.

         Still, 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.

         Next, 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.

         When 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 ‚Äúperson[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 ...

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