United States v. Jose Barrera-Landa (10th Cir. July 2020)

Bail Reform Act/Immigration – A defendant granted pretrial release under the Bail Reform Act is still subject to removal under the Immigration and Nationality Act.

Jose Barrera-Landa was charged with re-entry of a previously removed alien under 8 U.S.C. § 1326. Barrera-Landa waived pretrial release in order to participate in the Fast Track program and was subsequently detained. He later changed his mind and requested to be released pursuant to § 3142(e)(1) and the magistrate judge granted his release subject to various conditions. The judge denied Barrera-Landa’s request to enjoin ICE from taking him into custody upon his release.

Barrera-Landa “appeal[ed] the portion of the release order denying his request to enjoin ICE from detaining him or deporting him while he is on pretrial release,” arguing that ICE had relinquished custody to the Department of Justice.

The Court disagreed, holding that the district court did not err by denying Barrera-Landa’s request to enjoin ICE since “a release order under the [Bail Reform Act] does not preclude removal under the [Immigration and Nationality Act].” The Court noted that the BRA “does not give the district court authority to interrupt ICE’s independent statutory obligations to take custody of Mr. [Barrera-Landa] once he is released” and held that “the government does not need to make a choice between a criminal prosecution or removal.”

The Court also held “that the INA remains applicable to defendants released under the BRA after the close of the ten-day period” of temporary detention under BRA § 3142(d)(1)(B).

Appeal from the District of Utah

Opinion by Tymkovich, joined by Briscoe and Hartz

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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