United States v. Rosario Ventura

17-3904-cr
United States v. Rosario Ventura

United States Court of Appeals
For the Second Circuit
August Term, 2022

(Argued: June 26, 2023 Decided: March 22, 2024)

Docket No. 17-3904-cr
_____________________________________

UNITED STATES OF AMERICA,

Appellant,

v.

SABA ROSARIO VENTURA,

Defendant-Appellee.
_____________________________________
Before:

JACOBS, * LOHIER, Circuit Judges, and RESTANI, ** Judge.

In a prior summary order in this case, we remanded with instructions that
the District Court clarify whether it had made “a finding of pretext or bad faith
such that the [Immigration and Customs Enforcement’s, or ICE’s,] detention [of

*
This case returns to us from our prior remand pursuant to United States v. Jacobson, 15
F.3d 19, 21–22 (2d Cir. 1994). See United States v. Rosario Ventura, 747 F. App’x 20, 22
(2d Cir. 2018). Judge Peter W. Hall, originally a member of the panel, passed away on
March 11, 2021. Judge Dennis Jacobs replaced Judge Hall on the panel for this matter.

Judge Jane A. Restani, of the United States Court of International Trade, sitting by
**

designation.
Rosario Ventura] constituted a direct violation of” a federal court order releasing
him under the Bail Reform Act (BRA), 18 U.S.C. § 3142(b). United States v.
Rosario Ventura, 747 F. App’x 20, 22 (2d Cir. 2018) (summary order). The
District Court clarified that it dismissed the indictment against Rosario Ventura
based on its determination that, after the District Court ordered him released
pending trial in his criminal case pursuant to the BRA, ICE detained him
pretextually and in bad faith to thwart the bail order. We conclude that the
record does not support the District Court’s finding that Rosario Ventura’s
detention was pretextual, and that the finding was therefore clearly erroneous.
REVERSED.

Judge Lohier writes for the majority and concurs in a separate
opinion.

FRANK TURNER BUFORD (David C. James, on the brief), for
Breon Peace, United States Attorney for the Eastern
District of New York, Brooklyn, NY, for Appellant
United States of America.

S. ISAAC WHEELER, Federal Defenders of New York,
New York, NY, for Defendant-Appellee Saba Rosario
Ventura.

LOHIER, Circuit Judge:

In United States v. Rosario Ventura, with which we assume familiarity, we

remanded this case and instructed the District Court (Irizarry, J.) to clarify

whether it had made “a finding of pretext or bad faith such that [Immigration

and Customs Enforcement’s, or ICE’s,] detention [of Rosario Ventura]

constituted a direct violation of” a federal court order releasing him under the

Bail Reform Act (BRA), 18 U.S.C. § 3142(b). 747 F. App’x 20, 22 (2d Cir. 2018)

2
(summary order). On remand, without conducting an evidentiary hearing or

soliciting sworn affidavits, the District Court clarified that Rosario Ventura’s

detention by ICE “was pretextual and in bad faith because its purpose was not

for removal, but rather to detain [Rosario Ventura] pending his criminal trial, as

an affront to this Court’s bail determination and undermining the Bail Reform

Act.” United States v. Rosario Ventura, No. 17-cr-418 (DLI), 2023 WL 2787764, at

*2 (E.D.N.Y. Apr. 5, 2023). The Government appealed, again asking us to reverse

the District Court’s decision to dismiss the indictment.

In the intervening period, our Court issued a decision in United States v.

Lett, which established a general rule that ICE may, pursuant to its authority

under the Immigration and Nationality Act (INA), 8 U.S.C. § 1225(b)(2)(A),

detain a criminal defendant who is ordered released under the BRA. See 944

F.3d 467, 470 (2d Cir. 2019). Lett “[did] not address” whether pretext may

function as an exception, id. at 473, and our prior law has not foreclosed that

possibility. Although we posit that pretext might function as an exception to

Lett, we need not opine further on that legal issue here, as we conclude that the

factual record does not support the District Court’s assertion that Rosario

3
Ventura’s detention was pretextual. We accordingly REVERSE its orders of

November 9, 2017 and April 5, 2023.

BACKGROUND

I

Rosario Ventura, a citizen of the Dominican Republic, was arrested on

April 7, 2017 after the U.S. Customs and Border Protection (CBP) determined that

he had previously been removed from the United States. Rosario Ventura was

“paroled for prosecution,” Gov’t App’x 59, as permitted under 8 U.S.C.

§ 1182(d)(5)(A) and charged and detained in the Eastern District of New York

with illegal reentry in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). ICE lodged

a detainer 1 against Rosario Ventura on the same day. While still detained,

Rosario Ventura was indicted by a federal grand jury for illegally reentering the

1
An ICE detainer “serves to advise another law enforcement agency that [ICE]
seeks custody of [a noncitizen] presently in the custody of that agency, for the
purpose of arresting and removing the [noncitizen]. The detainer is a request
that such agency advise [ICE], prior to release of the [noncitizen], in order for
[ICE] to arrange to assume custody, in situations when gaining immediate
physical custody is either impracticable or impossible.” 8 C.F.R. § 287.7(a).
When ICE issues a detainer for a noncitizen “not otherwise detained by a
criminal justice agency,” – for example, as a result of having been granted bail
under the BRA – “such agency shall maintain custody” of the noncitizen “for a
period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in
order to permit assumption of custody by” ICE. Id. § 287.7(d).
4
United States. With counsel’s help, Rosario Ventura moved for bail pending trial

under the BRA. After conducting a hearing, the Magistrate Judge (Pohorelsky,

M.J.) granted bail and ordered Rosario Ventura released on a $25,000 bond. But

the ICE detainer kept Rosario Ventura in jail until August 15, 2017, when he was

officially transferred into ICE custody. That same day, ICE served Rosario

Ventura with a Notice to Appear (NTA), which charged him as removable under

§§ 212(a)(7)(A)(i)(I) and 212(a)(9)(A)(ii) of the INA (codified at 8 U.S.C. § 1182(a)).

The Government meanwhile appealed the Magistrate Judge’s bail order to the

District Court, which heard arguments from the parties and then affirmed the

order in August 2017. Rosario Ventura remained in ICE custody.

II

In September 2017, three weeks after the District Court affirmed the

Magistrate Judge’s bail order, Rosario Ventura, still in ICE custody, moved for an

order to compel ICE to release him pursuant to the previously imposed bond

conditions or to dismiss the indictment with prejudice in the event the

Government refused to release him. “The purpose of his continued detention,”

Rosario Ventura insisted, was “solely to hold [him] in connection with his

criminal case” rather than his immigration case. Dist. Ct. Dkt. No. 23 at 2–3. The

5
Government opposed the motion, arguing that ICE had “independent statutory

authority” to detain Rosario Ventura pending a final determination of his

removability. Dist. Ct. Dkt. 25 at 5, 7. The Government also responded that

ICE’s detention was not pretextual because Rosario Ventura’s removal

proceedings were “being litigated in a manner consistent with the usual pace of

such matters.” Dist. Ct. Dkt. 25 at 9.

By order dated November 3, 2017, the District Court granted Rosario

Ventura’s motion and directed the Government to either release Rosario Ventura

on the bond conditions set for his release in the criminal case or dismiss the

indictment with prejudice. The District Court gave the Government until 3 pm

on November 9, 2017 to choose, explaining that the BRA “provides the exclusive

means by which the Government may detain a removable alien pending trial in a

criminal case,” United States v. Rosario Ventura, No. 17-cr-418 (DLI), 2017 WL

5129012, at *2 (E.D.N.Y. Nov. 3, 2017) (quotation marks omitted); that, more

generally, ”the Executive Branch should decide where its priorities lie” as

between criminal prosecution and immigration removal proceedings, id.; and

that the Government had previously suggested that ICE’s decision to detain

6
Rosario Ventura was prompted by its disagreement with the District Court’s

assessment of Rosario Ventura’s risk of flight, id. at *3.

On November 9, 2017, the Government informed the District Court that

ICE “was not prepared to release” Rosario Ventura. Rosario Ventura, 2023 WL

2787764, at *2. The District Court dismissed the indictment with prejudice that

same day. The following month, December 2017, Rosario Ventura was released

from ICE custody on a $15,000 bond following a successful habeas petition filed

in the Southern District of New York. See Judgment, Rosario Ventura v. Decker,

No. 17-cv-8889 (RA) (S.D.N.Y. Dec. 6, 2017), ECF No. 11.

The Government appealed the District Court’s dismissal of the indictment

to this Court even before Rosario Ventura was released from ICE custody. See

Dist. Ct. Dkt. No. 35. We remanded the case pursuant to United States v.

Jacobson, 15 F.3d 19, 21–22 (2d Cir. 1994), and directed the District Court to

“clarify, and explicate its rationale therefor, whether its observation that DHS’s

continued detention constituted an affront to the mandates of the Bail Reform

Act, and a potential attempt to obviate the bond determination of [the District

Court], was tantamount to a finding of pretext or bad faith such that the ICE

7
detention constituted a direct violation of the magistrate judge’s order.” Rosario

Ventura, 747 F. App’x at 22 (quotation marks omitted). 2

In December 2019, while this matter remained pending before the District

Court on remand, our Court issued a decision in United States v. Lett, which

held 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 [those] seeking admission into the United States who are not ‘clearly

and beyond a doubt entitled to be admitted’ for removal proceedings.” 944 F.3d

at 469 (quoting 8 U.S.C. § 1225(b)(2)(A)).

III

On remand, the District Court held an initial status conference and

ordered briefing on the issues raised in our summary order. Thereafter, the

District Court held oral argument to discuss “follow-up questions for the parties

that . . . would be helpful to the Court in clarifying its previous decision.” Supp.

2We did not consider then – and do not consider today – whether it was appropriate for
the District Court to apply the “extreme sanction and [] drastic remedy” of dismissing
the indictment. United States v. Halloran, 821 F.3d 321, 342 n.14 (2d Cir. 2016)
(quotation marks omitted). The Government never challenged the propriety of the
remedy before the District Court. We therefore consider any such argument forfeited
for the purposes of the current appeal. See Parada v. Banco Indus. De Venezuela, C.A.,
753 F.3d 62, 70 (2d Cir. 2014).
8
Gov’t App’x 2. During the oral argument, Rosario Ventura “conceded,” as he

did on appeal, “that ICE has the authority to initiate removal proceedings against

a federal criminal defendant.” Supp. Gov’t App’x 15. He maintained, however,

that the clash between the Government’s actions and its representations to the

District Court “supports a factual finding . . . that in this case . . . the Defendant’s

detention was not designed to effectuate his removal” but rather “to extend his

detention for purposes of prosecution.” Supp. Gov’t App’x 32.

The District Court issued its order in response to our remand on April 5,

2023. Noting that Lett “explicitly held that the defendant’s pretext argument had

been waived,” Rosario Ventura, 2023 WL 2787764, at *5 (citing Lett, 944 F.3d at

473), the District Court “clarified” that, notwithstanding ICE’s legal authority to

detain a defendant who was released under the BRA, ICE’s detention of Rosario

Ventura was, under the circumstances, “pretextual and in bad faith because its

purpose was not for removal, but rather to detain [him] pending his criminal

trial, as an affront to [the District] Court’s bail determination.” Id. at *2. Key to

the District Court’s decision was the Government’s concession that ICE may

have detained Rosario Ventura because it “disagree[d] with the two decisions by

[the District Court] as to the defendant’s risk of flight,” see id. at *3 (alteration

9
omitted), together with what the District Court characterized as a sequence of

events “border[ing] on the ‘Kafkaesque,’” in which the Government initially

paroled Rosario Ventura into the country for prosecution, only to immediately

initiate removal proceedings after Rosario Ventura was released under the BRA,

see id. An additional factor, noted the District Court, was “the Government’s

disparate treatment of other defendants who were similarly situated to

Defendant.” Id. at *4.

The Government appealed the order directly to our panel pursuant to

Jacobson. At our instruction, both parties then filed supplemental briefs.

DISCUSSION

When “the district court’s dismissal of the indictment raises questions of

law, our review is de novo.” United States v. Alfonso, 143 F.3d 772, 775 (2d Cir.

1998). We review a district court’s factual findings underlying a dismissal of the

indictment for clear error. See United States v. Walters, 910 F.3d 11, 22 (2d Cir.

2018).

I

In Lett, we held that ICE’s detention of a criminal defendant ordered

released under the BRA is lawful per se. See 944 F.3d at 470–71. As the District

10
Court noted, we did not address Lett’s separate argument 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,” because we determined that the argument was forfeited. Id. at

473. We recognize that pretext may function as an exception to Lett and that a

petitioner shoulders the burden of demonstrating that his detention was

pretextual. Cf. Walters, 910 F.3d at 27. In meeting that burden, it is not enough

for him to show that the immigration authorities discontinued parole, initiated a

new removal proceeding, and detained him upon his release under the BRA.

After all, in Lett we held that almost precisely the same government conduct was

lawful. See 944 F.3d at 472.

Urging a contrary conclusion, Rosario Ventura insists that it is enough for

him to show that ICE’s detention of a criminal defendant in these circumstances

is pretextual and in bad faith if the defendant is “subject to summary expulsion”

under 8 U.S.C. § 1225(b)(1)(A)(i), since this means that ICE deliberately chose the

slower path to removal by initiating a new removal proceeding and detaining the

defendant. See Rosario Ventura Supp. Br. 1. We are not persuaded.

Immigration authorities have discretion to remove qualifying individuals

11
“without further hearing or review.” 8 U.S.C. §§ 1225(b)(1)(A); see also

1225(b)(1)(A)(iii)(I). We do not “look behind the exercise of that discretion”

unless there is reason to believe that the agency’s decision was not based on a

“facially legitimate and bona fide reason.” Bertrand v. Sava, 684 F.2d 204, 212

(2d Cir. 1982) (quotation marks omitted); see also Dep’t of Commerce v. New

York, 139 S. Ct. 2551, 2573 (2019) (“[A] court is ordinarily limited to evaluating

the agency’s contemporaneous explanation in light of the existing administrative

record” because “judicial inquiry into executive motivation represents a

substantial intrusion into the workings of another branch of Government and

should normally be avoided.” (quotation marks omitted)).

For that reason, even when a defendant is subject to summary expulsion, a

claim that ICE acted pretextually in detaining the defendant must still be backed

by evidence that the detention served the criminal prosecution, not removal.

Among the clearest examples of pretextual immigration detention are cases

where the defendant’s immigration proceedings come to a standstill following

detention, so that the purpose of the immigration detention becomes simply to

hold the defendant pending the criminal trial; or where the logistics involved in

12
the immigration detention make it difficult to afford defendants the rights to

which they are entitled in criminal cases.

II

In our 2018 summary order, we instructed the District Court to “clarify”

whether it had made a factual finding of pretext. On remand, the District Court

held an initial status conference with attorneys for both parties. Rosario Ventura,

2023 WL 2787764, at *2. That initial conference was followed a few months later

by oral argument addressing “follow-up questions . . . that . . . would be helpful

to the Court in clarifying its previous decision,” Supp. Gov’t App’x 2, and a

subsequent status conference, during which Judge Irizarry requested that the

parties submit “a joint letter discussing cases in this District with similar issues

that were decided subsequent to this case . . . . ” Rosario Ventura, 2023 WL

2787764, at *2.

The District Court described these conferences, the oral argument, and

briefing from the parties as “supplement[ing]” the record “to clarify and explain

further its rationale as to why [Rosario Ventura’s] continued detention by ICE

was pretextual.” Id. But the District Court’s “clarification” or

“supplementation” in this case does not appear to have been based on facts (as

13
opposed to legal argument) that could support quintessentially factual findings

such as pretext, bad faith, or government misconduct. In other words, the

District Court’s “findings” are not supported by any evidence in the record. See

Wu Lin v. Lynch, 813 F.3d 122, 127 (2d Cir. 2016) (explaining that district courts

commit clear error when there is “no evidence at all to support a finding of

fact”).

Where a criminal defendant moves to dismiss an indictment due to alleged

government misconduct, “conducting a hearing is the preferred course of action”

if “disputed factual issues exist.” United States v. Cuervelo, 949 F.2d 559, 567 (2d

Cir. 1991). We have affirmed factual findings made without the benefit of an

evidentiary hearing in such cases only “where the relevant facts can be

ascertained from the record,” United States v. Pavloyianis, 996 F.2d 1467, 1475

(2d Cir. 1993), or where “the facts [are] not in dispute,” United States v. LaPorta,

46 F.3d 152, 160 (2d Cir. 1994).

In Pavloyianis, for example, we were satisfied that no evidentiary hearing

was necessary to determine whether a prosecutor had engaged in misconduct

because the district court had ordered the Government to submit affidavits and,

on the basis of those affidavits, found “that there was not the slightest indication

14
or evidence that the trial prosecutor” had engaged in misconduct. 996 F.2d at

1475 (quotation marks omitted). For this reason, we concluded, “the relevant

facts” could “be ascertained from the record.” Id. More recently, in Walters, we

agreed with the district court “that a further hearing would not [have] assist[ed]

in the resolution of the issues raised by Walter’s motion to dismiss” because the

Government had already provided the district court “with a detailed summary

of its findings” from “an internal inquiry,” and the defendant had “submitted

multiple briefs and a declaration in response to the Government’s letter.” 910

F.3d at 28–29.

By contrast, we reversed a district court’s determination that the

Government committed misconduct where the district court declined to hold an

evidentiary hearing and concluded that the sequence of events leading up to the

indictment alone supported a “prime facie case” of misconduct. United States v.

Johnson, 171 F.3d 139, 141–42 (2d Cir. 1999). We reinstated the indictment

because the defendant presented “no direct evidence” of government

misconduct as would be necessary to support dismissing the indictment. Id. at

142.

15
 We acknowledge that our prior instruction, as part of the Jacobson

remand, that the District Court “clarify” its rationale for dismissing the

indictment was itself not very clear. But the record in this case falls short of what

we found sufficient in Pavloyianis and Walters to obviate the need for an

evidentiary hearing as to whether the Government engaged in misconduct. As

noted above, after Lett, the chronology that the District Court cited — of ICE’s

presumptively lawful and discretionary decisions to terminate parole, initiate a

new removal proceeding, and detain Rosario Ventura — does not itself justify a

factual finding of pretext. Nor is it enough that ICE, in the exercise of its

discretion and as it was entitled to do, elected sometimes to summarily remove

and sometimes to continue parole for similarly situated criminal defendants.

Of course, the District Court was entirely free to rely on the government

attorney’s statement at oral argument that “it could be that ICE disagrees with

the two decisions by [the District] Court as to [Rosario Ventura’s] risk of flight.”

Rosario Ventura, 2023 WL 2787764, at *3. But it was not free to rely on it entirely.

Rather than a “concession” that Rosario Ventura’s detention by ICE was

pretextual, id., the statement was, when viewed in context, hypothetical and

unsupported by testimony or affidavits from ICE officials or other relevant

16
parties. We note, too, that the government attorney later plausibly clarified his

statement, as follows: “What I meant, Your Honor, is not that they tried to

overrule this Court’s determination within the criminal context, but rather they

faced the same question that this Court faced within the context of the

administrative proceeding and just reached a different conclusion.” Gov’t App’x

48. So although the District Court could and did consider the attorney’s original

statement, the record is devoid of any “relevant facts [that] can be ascertained”

about ICE’s actual motivation in detaining Rosario Ventura. Pavloyianis, 996

F.2d at 1475. Even after our initial remand, Rosario Ventura did not present

direct evidence that could support a factual finding of pretext or bad faith. See

Johnson, 171 F.3d at 142.

We therefore reverse the District Court’s November 9, 2017 order

dismissing the indictment, as well as its April 5, 2023 order “clarifying” that it

had based the dismissal on a finding of pretext. Without any factual record that

ICE’s detention of Rosario Ventura was pretextual or in bad faith, we conclude

that the finding was clearly erroneous. See Wu Lin, 813 F.3d at 127.

17
 CONCLUSION

For the foregoing reasons, the November 9, 2017 and April 5, 2023 orders

of the District Court are REVERSED.

18
LOHIER, Circuit Judge, concurring:

In United States v. Lett, we recognized a general rule that ICE may,

pursuant to its authority under the Immigration and Nationality Act (INA), 8

U.S.C. § 1225(b)(2)(A), detain a criminal defendant who is ordered released

under the Bail Reform Act (BRA), 18 U.S.C. § 3142. See 944 F.3d 467, 470 (2d Cir.

2019). We also acknowledged that an exception to the general rule might exist

when the Government’s decision to initiate administrative proceedings and to

detain a criminal defendant pursuant to the INA is pretextual and intended to

secure his appearance in the criminal case. The exception arises because “[t]he

BRA and the INA . . . serve different purposes, govern separate adjudicatory

proceedings, and provide independent statutory bases for detention.” Id. In

Lett, we declined to address the issue head-on because the defendant never

pressed it to the District Court.

Left to my own devices, I would have addressed the question left open in

Lett because we previously answered it in a summary order issued earlier in this

case. See United States v. Rosario Ventura, 747 F. App'x 20, 22 (2d Cir. 2018).

There we said that “a finding of pretext or bad faith such that the ICE detention
constituted a direct violation of” a court order would support affirming the

District Court’s decision. Id. We thus clearly assumed that the Government may

not misuse its broad detention authority under the INA just to ensure that a

criminal defendant appears in his criminal case. See id.

Our assumption was, of course, correct. Where immigration authorities

detain a criminal defendant ordered released under the BRA merely to further

the interests of the Government in connection with the defendant’s criminal

proceeding rather than to remove him, the defendant’s continued detention is

unlawful because it violates the district court’s bail order, does nothing to

advance the goals of the INA, and is a pretextual exercise of statutory authority.

Cf. United States v. Miller, 626 F.3d 682, 689 (2d Cir. 2010) (“[I]t is a well-

established ‘basic proposition that all orders and judgments of courts must be

complied with promptly’ and that while a party has a right to appeal the order,

‘absent a stay, he must comply promptly with the order pending appeal.’”

2
(quoting Maness v. Meyers, 419 U.S. 449, 458 (1975))). And correct or not, that is

the governing law of this case.

But the record does not support the District Court’s finding of pretext here.

For this reason, and for the reasons provided in the majority opinion, I fully

agree that the District Court should reinstate the indictment.

3