Very recently, Judge Lamberth from the District of Columbia (and former Chief Judge) confronted head-on a critical quagmire in the separation-of-powers arena.
In United States v. Vasquez-Benitez, 18-cr-00275, Docket Entries 26, 29 (D.D.C. Sept. 27, 2018), the District Court for the District of Columbia found this past month that the Bail Reform Act (i.e., the Judiciary) exclusively controls the custody of an individual facing criminal charges regardless of the Executive Branch’s authority to detain that individual under the Immigration and Nationality Act.
A month into civil removal proceedings brought against Vasquez-Benitez, the government filed a criminal complaint charging him with illegal reentry. Shortly thereafter, customs officials transferred custody of Vasquez-Benitez to the U.S. Marshals Service for a detention hearing at which the court ordered his release pending trial under the Bail Reform Act's presumption for release. When the district court denied the government’s request to revoke release, the U.S. Marshals transferred the defendant back to customs officials for his continued detention related to the civil removal proceedings.
But not so fast.This past Friday, after reopening Vasquez-Benitez’s detention hearing in light of his civil detention, Judge Lamberth not only granted Vasquez-Benitez's request that the district court's order for his supervised release pending trial be enforced but also clarified that Vasquez-Benitez may not be returned to the custody of Immigration & Customs Enforcement during the course of the criminal proceedings. Rather, “because the government has chosen to bring criminal charges against the defendant, a judicial order under the Bail Reform Act provides the sole avenue for detaining defendant while the charges are pending.” (D.E. 26, Emphasis added.)