Focusing its sights squarely on criminal law’s intersection with immigration law, a federal appellate court concluded that judges can’t deny bail to migrant defendants simply because ICE threatens to deport them. The court’s opinion, in a case involving an illegal reentry prosecution, is an important reminder of the presumption of liberty in United States criminal law—and an equally stark example of ICE’s persistent efforts to pierce holes in that presumption.
Mario Ailon-Ailon, a resident of Dodge City, Kansas for seven years, was arrested by ICE and handed over to the U.S. Marshals Service to face criminal prosecution for entering the United States without the federal government’s permission after having previously been removed. Detention meant that he was separated from his wife, two children, and three step-children. Ailon-Ailon’s attempt to return to his family met with initial success when a magistrate judge concluded that he should be released. “[I]f the Government can’t decide whether to keep him and prosecute him or deport him,” the magistrate wrote, “that’s on them.” At the government’s request, a district court judge reviewed that decision and disagreed. On appeal to the U.S. Court of Appeals for the Tenth Circuit, Ailon-Ailon contended that bond can be denied only if a defendant poses a threat to public safety or is likely to “flee.”
Bond determinations in federal court are governed by the Bail Reform Act. Like United States law before it, the BRA presumes that everyone charged with a crime can live freely while facing prosecution. The BRA authorizes pretrial detention only if public safety or flight risk concerns are present. The government doesn’t claim Ailon-Ailon poses a public safety risk. Consequently, Ailon-Ailon can be locked up pending his illegal reentry prosecution only if the government proves by a preponderance of evidence that there’s a “serious risk” he’ll “flee” and, if so, no combination of conditions can “reasonably assure” his appearance in court.
Prosecutors pointed to an immigration detainer lodged by ICE as evidence that Ailon-Ailon wouldn’t appear for court hearings. In effect, the prosecutor claimed that if he received a bond, he would be taken into custody by ICE and deported. As a result, he would fail to show up for his criminal case. Ailon-Ailon argued that forcible confinement and removal from the United States thanks to ICE’s actions doesn’t constitute “fleeing.” For two reasons, the Tenth Circuit agreed.
First, it explained that the BRA’s plain text supports Ailon-Ailon’s claim to liberty. “The ordinary meaning of ‘flee’ suggests volitional conduct,” the court explained, applying traditional tools of statutory interpretation. “[O]ne 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.”
Second, the BRA’s broader scheme identifies the exact method by which Congress meant to allow the government to deprive migrants of their liberty. This procedure specifically applies to potentially removable migrants and allows for a ten-day period of detention. According to the Tenth Circuit, the prosecutor’s position would let ICE subvert the BRA’s specific requirements through a simple immigration detainer. That would flout Congress’s intent.
Consequently, the Tenth Circuit concluded that Ailon-Ailon is eligible for a bond. If ICE doesn’t like that the United States Attorney in Kansas has decided to detain him for criminal prosecution, “to the extent any conflict exists, it is a matter for the Executive Branch to resolve internally.”