An immigration "detainer" in effect at the time of an initial appearance in federal court is not enough, standing alone, to justify detention under the Bail Reform Act, according to a ground-breaking Tenth Circuit decision published last week. In United States v. Ailon-Ailon, the Court held that the risk of removal by ICE is not the same as a risk that the defendant will flee. This was an issue of first impression in this circuit.
Mr. Ailon-Ailon is charged with an immigration offense in the District of Kansas. The government moved to keep him in custody because an immigration detainer had been filed with the U.S. Marshal. That detainer was actually a form from ICE asking to take custody of the defendant if he were released from federal custody because he was (allegedly) subject to a reinstated deportation order.
The district court detained Mr. Ailon-Ailon based on a risk of flight. That is, the court determined that removal by immigration posed "a serious risk that such person will flee," a determinative factor under 18 U.S.C. § 3142(f)(2).
The Tenth Circuit reversed. "We conclude that the plain meaning of 'flee' refers to a volitional act rather than involuntary removal, and that the structure of the Bail Reform Act supports this plain-text reading." The Court observed, "As Ailon-Ailon noted at oral argument, one would not describe an individual who has been arrested at a crime scene and involuntarily transported to a police station as having fled the scene." The government argued, unconvincingly, that it had no control over whether or when ICE would deport; the Court held that any fight over which federal agency has priority is for the Executive Branch to resolve.
The remedy was not a remand for further hearing on whether Mr. Ailon-Ailon should be released, but a directive to the lower court "to set appropriate conditions for Ailon-Ailon’s release pending trial. When the conditions of release have been met, the United States Marshals shall release Ailon-Ailon to ICE custody, pursuant to the detainer."