PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-2341
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UNITED STATES OF AMERICA
v.
ILMA ALEXANDRA SORIANO NUNEZ,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-18-cr-00040-001)
District Judge: Honorable Joseph F. Leeson, Jr.
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Argued May 21, 2019
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Before: McKEE, SHWARTZ, and FUENTES, Circuit
Judges.
(Filed: July 2, 2019)
Melanie B. Wilmoth
Robert A. Zauzmer [ARGUED]
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Jose C. Campos [ARGUED]
Hugh Campos
1845 Walnut Street
Philadelphia, PA 19103
Counsel for Appellant
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OPINION
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SHWARTZ, Circuit Judge.
Ilma Alexandra Soriano Nunez was charged with
various crimes and appeared for a bail hearing. Conditions of
release were set under the Bail Reform Act (“BRA”).
Thereafter, Immigration and Customs Enforcement (“ICE”)
lodged and executed a detainer, and she was detained for
removal proceedings. Because her detention for removal
proceedings under the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1226(a)(1), does not conflict with the
order granting release in connection with her criminal case
under the BRA, 18 U.S.C. § 3142, the District Court declined
to dismiss the indictment and rejected Soriano Nunez’s request
2
that it rely on the BRA to order her release from ICE custody.
We lack jurisdiction over the ruling denying the request to
dismiss the indictment and will dismiss that aspect of the
appeal. We do, however, agree with the Court’s bail ruling and
will affirm that part of its order.
I
A grand jury indicted Soriano Nunez for passport fraud,
18 U.S.C. § 1542; making a false representation of United
States citizenship, 18 U.S.C. § 911; using a false social security
number, 42 U.S.C. § 408(a)(7)(B); and producing a state
driver’s license not issued for her use, 18 U.S.C. § 1028(a)(1),
(b)(1)(A), and (2). Soriano Nunez surrendered and was
brought before a Magistrate Judge. She was then temporarily
detained under 18 U.S.C. § 3142(d), a provision of the BRA
that allows for, among other things, the ten-day pretrial
detention of non-citizens who may pose a flight risk or danger
so ICE may take them into custody.1 ICE lodged a detainer.
Twelve days later, a different Magistrate Judge arraigned
Soriano Nunez, denied the Government’s motion for pretrial
detention under 18 U.S.C. § 3142(e), and set conditions for her
release. The District Court denied the Government’s motion
to revoke the order. Thereafter, ICE executed its detainer,
taking Soriano Nunez into custody for her to appear for
removal proceedings.2
1
As discussed herein, the ten-day detention period may
also be invoked to allow state and local authorities to take
persons on release into custody. 18 U.S.C. § 3142(d).
2
Soriano Nunez is allegedly removable because she is
an alien not admitted to the United States and she falsely
represented that she was a citizen in violation of 8 U.S.C.
3
While in ICE custody, Soriano Nunez moved to dismiss
her indictment or obtain release from detention, arguing that
§ 3142(d) gives the United States “the choice of [either] taking
the Defendant into [ICE] custody during the ten-day period and
proceeding with removal or continuing with the criminal
prosecution in which case the BRA controls.” App. 47. The
District Court denied Soriano Nunez’s motion to dismiss or for
release, holding that the INA, 8 U.S.C. § 1226(a)(1), allowed
ICE to detain Soriano Nunez during the pendency of removal
proceedings notwithstanding the parallel criminal action, and
her detention therefore did not conflict with the BRA. Soriano
Nunez appeals.
II3
As a threshold matter, we must address the scope of our
jurisdiction over Soriano Nunez’s appeal. To the extent
Soriano Nunez seeks review of the order denying her motion
to dismiss the indictment, we lack jurisdiction. Generally, our
jurisdiction is limited to final judgments. An order denying
dismissal of an indictment is not a “final judgment of the
district court.” 28 U.S.C. § 1291. “Final judgment in a
criminal case means sentence. The sentence is the judgment.”
United States v. Rodriguez, 855 F.3d 526, 530 (3d Cir. 2017)
(quoting Berman v. United States, 302 U.S. 211, 212 (1937)).
Moreover, none of the grounds for interlocutory appeal in a
criminal case apply here. See, e.g., Heltoski v. Meanor, 442
U.S. 500, 508 (1979) (recognizing Speech or Debate Clause
§ 1182(a)(6)(A)(i) and (C)(ii). Removal proceedings are
ongoing.
3
The District Court had jurisdiction under 18 U.S.C.
§ 3231.
4
immunity as a legitimate ground to appeal denial of a motion
to dismiss an indictment); Abney v. United States, 431 U.S.
651, 662 (1977) (hearing appeal of motion to dismiss
indictment on double jeopardy grounds); United States v.
Mitchell, 652 F.3d 387, 392-93 (3d Cir. 2011) (setting forth the
required elements of an appealable collateral order). Thus, we
must dismiss her appeal to the extent it seeks review of the
District Court’s refusal to dismiss her indictment.
We do, however, have jurisdiction to review the ruling
denying Soriano Nunez’s claim that her BRA release order
forecloses her ICE detention. She argues that the BRA, 18
U.S.C. § 3142, provides the sole means to release or detain a
criminal defendant and that the District Court erred in refusing
to extend its release order to bar her ICE detention. The BRA
gives us jurisdiction to hear “[a]n appeal from a release or
detention order, or from a decision denying revocation or
amendment of such an order.” 18 U.S.C. § 3145(c). Here,
Soriano Nunez essentially challenges the Court’s decision to
deny her request to enforce its BRA order. Put differently, she
asks us to review the Court’s rejection of her assertion that the
BRA order requires her release from ICE custody. To the
extent Soriano Nunez challenges the enforcement of a BRA
order, we have jurisdiction over this appeal. Our review over
whether the BRA requires Soriano Nunez’s release is plenary.
United States v. Perry, 788 F.2d 100, 104 (3d Cir. 1986).
5
III
A
To decide this appeal, we must examine both the BRA
and the INA’s detention provisions. Congress passed the BRA
to address whether and under what circumstances a district
court may release a defendant pending trial. See United States
v. Salerno, 481 U.S. 739, 742-43 (1987). It was enacted to
ensure “all persons, regardless of their financial status, shall
not needlessly be detained . . . pending appeal, when detention
serves neither the ends of justice nor the public interest.”
United States v. Provenzano, 605 F.2d 85, 87 n.13 (3d Cir.
1979) (quoting Bail Reform Act of 1966, Pub. L. No. 89-465
§ 2, 80 Stat. 214, 214 (1966)). The BRA thus requires the
pretrial release of defendants unless “no condition or
combination of conditions will reasonably assure the
appearance of the person as required and the safety of any other
person and the community.” 18 U.S.C. § 3142(e)(1).
The BRA allows a court to temporarily detain persons
not lawfully admitted to the United States, as well as
individuals who are on pretrial or post-conviction release on
other federal, state, or local charges, so that immigration and
other officials can take custody of such individuals before BRA
conditions of release are set. 18 U.S.C. § 3142(d). To this end,
the BRA directs judicial officers to:
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 court, probation or parole official, or
State or local law enforcement official, or the
6
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.
Id. Other than during this temporary detention period,
individuals on release arising from other offenses and non-
citizens are treated the same as other pretrial criminal
defendants under the BRA.4 See, e.g., United States v. Santos
Flores, 794 F.3d 1088, 1091 (9th Cir. 2015) (stating that the
possibility of removal by immigration authorities cannot
provide the sole basis for denial of BRA release). The failure
of a government agency to take custody of such person within
the temporary detention period means that the court proceeds
to apply the BRA to determine whether there is any condition
or combination of conditions that will ensure the defendant’s
presence at trial and the safety of the community. United States
v. Vasquez-Benitez, 919 F.3d 546, 553 (D.C. Cir. 2019).5
4
Thus, the presence of an ICE detainer and the threat of
potential removal alone are not sufficient to deny BRA pretrial
release. See United States v. Ailon-Ailon, 875 F.3d 1334,
1338-39 (10th Cir. 2017).
5
An agency’s inaction does not bar it from later taking
custody of the individual pursuant to its lawful authority.
7
B
The INA, which governs immigration, gives the
Attorney General the power to issue warrants for the arrest and
seek the detention or release of an alien “pending a decision on
whether [he or she] is to be removed from the United States.”6
8 U.S.C. § 1226(a). Thus, while the BRA aims to ensure a
defendant’s presence at trial, the INA uses detention to ensure
an alien’s presence at removal proceedings. Vasquez-Benitez,
919 F.3d at 552-54. Where an alien is in the custody of another
governmental entity, ICE officers may issue a detainer. See 8
U.S.C. §§ 1103(a)(3), 1357; 8 C.F.R. § 287.7(a). Via the
detainer, ICE informs the agency that it “seeks custody” of
such an alien “for the purpose of arresting and removing” the
alien. 8 C.F.R. § 287.7(a). The INA permits an alien’s
detention, see, e.g., 8 U.S.C. § 1226(a), but not for the sole
purpose of ensuring her presence for criminal prosecution.7
6
In some instances, ICE detention is mandatory. For
example, aliens who have committed certain criminal offenses
must be detained pending removal. See 8 U.S.C. § 1226(c)(1).
7
An alien may seek district court review of a detention
order in limited circumstances pursuant to 28 U.S.C. § 2241.
See, e.g., Chavez-Alvarez v. Warden York County Prison, 783
F.3d 469, 470-71 (3d Cir. 2015) (ordering the grant of a § 2241
habeas petition challenging ICE detention under 8 U.S.C.
§ 1226(c) pending removal proceedings); Sylvain v. Att’y
Gen., 714 F.3d 150, 153, 155 (3d Cir. 2013) (reviewing grant
of a § 2241 habeas petition seeking release from ICE detention
under 8 U.S.C. § 1226(c)).
8
C
Soriano Nunez asserts that the BRA and the INA
conflict insofar as the INA allows for the detention of a
criminal defendant who has been granted release under the
BRA. No court of appeals that has examined this assertion has
concluded that pretrial release precludes pre-removal
detention. See 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.”); see also United States v. Ventura, 747
F. App’x 20, 22 (2d Cir. 2018) (“Neither side asserts that the
BRA categorically prevents the Department of Homeland
Security . . . from exercising its independent statutory authority
to detain an arriving noncitizen pending removal.”). We agree.
Instead, “[d]etention of a criminal defendant pending
trial pursuant to the BRA and detention of a removable alien
pursuant to the INA are separate functions that serve separate
purposes and are performed by different authorities.”
Vasquez-Benitez, 919 F.3d at 552. Congress established laws
governing the release or detention of criminal defendants, and
the Executive has the authority to invoke those laws to ensure
a defendant’s presence at criminal proceedings and the
community’s safety. 18 U.S.C. § 3142(e)(1). Congress also
gave the Executive authority to detain and remove suspected
aliens in furtherance of its enforcement of the immigration
laws. See 8 U.S.C. § 1231(a); Demore v. Kim, 538 U.S. 510,
523 (2003).
9
These laws serve different purposes and can coexist for
four reasons. First, the text of 18 U.S.C. § 3142(d) does not
compel a different conclusion. The text has a notice provision
designed to give other agencies an opportunity to take custody
of a defendant before a BRA release order is issued. 18 U.S.C.
§ 3142(d). 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. See United States v. Villatoro-
Ventura, 330 F. Supp. 3d 1118, 1140-41 (N.D. Iowa 2018).
The BRA’s temporary detention scheme thus reflects
Congress’ recognition that immigration authorities and state
sovereigns have separate interests. Had Congress wanted to
limit a federal court’s authority to consider state and local
interests, Congress would not have included § 3142(d).
Villatoro-Ventura, 330 F. Supp. 3d at 1139.
In addition, if immigration or other authorities choose
to detain the defendant during the ten-day period, then such
detention eliminates the court’s “need to determine whether to
release the defendant in the criminal case pursuant to the other
provisions under the BRA. [Section 3142(d)] does not go on
to say that the criminal case must end if ICE pursues
deportation[,]” United States v. Pacheco-Poo, No. 18-CR-109-
CJW-MAR, 2018 WL 6310270, at *6 (N.D. Iowa Dec. 3,
2018), or other authorities continue their prosecutions. In the
immigration context, as the District Court aptly stated,
the text of § 3142(d) does not suggest that it
overrides the detention provisions of the INA.
Rather, it instructs the district court that, after the
temporary detention period, it should proceed to
a determination of pretrial release under the
10
BRA. Nothing in the text of the BRA prevents
ICE from enforcing a detainer or taking a
defendant into custody for removal proceedings
after an order of release under the BRA.
App. 15-16.
Second, nothing in the BRA gives a district court the
authority to compel another sovereign or judge in federal
administrative proceedings to release or detain a defendant.
The BRA applies to federal criminal proceedings, and
detention and release decisions in those cases are subject to the
BRA. Detention and release decisions by immigration and
other government officials are subject to different statutory
frameworks.
Third, detention for removal purposes does not infringe
on an Article III court’s role in criminal proceedings. In a
criminal case, the court is tasked with deciding whether there
are conditions of release that will ensure the defendant’s
appearance and the safety of the community. Vasquez-
Benitez, 919 F.3d at 550-51. It carries out this duty without
regard to whether a separate entity with different duties may
reach a different conclusion. In an immigration case, those
authorities are focused on enforcing the immigration laws and
nothing in the BRA prevents them from acting pursuant to their
lawful duties, which include detaining aliens for removal
purposes. Veloz-Alonso, 910 F.3d at 269 (citing 8 U.S.C.
§ 1231(a)(2)).
Fourth and relatedly, nothing in either the INA or the
BRA gives a court the authority to require the Executive to
choose which laws to enforce. Pacheco-Poo, 2018 WL
11
6310270, at *5. Like our sister courts of appeals, we too must
follow the principle that “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.” Vasquez-Benitez, 919
F.3d at 553 (quoting Morton v. Mancari, 417 U.S. 535, 551
(1974)); see also Veloz-Alonso, 910 F.3d at 268-69.
Because (1) the BRA explicitly applies only to federal
criminal proceedings, not state or immigration proceedings, (2)
there is no textual conflict between the BRA and the INA, (3)
these statutes serve different purposes, and (4) criminal and
removal processes can proceed simultaneously, Pacheco-Poo,
2018 WL 6310270, at *6, the District Court correctly declined
to hold that Soriano Nunez’s BRA release order mandated her
release from ICE detention.8
IV
For the foregoing reasons, we will dismiss the appeal in
part and affirm in part.
8
The record here does not indicate that the purpose of
ICE detention was to circumvent a district court’s BRA release
order. Ventura, 747 F. App’x at 21. We therefore take no
position on the remedies an alien may have or relief a court in
a criminal case may grant if such evidence were presented.
12