ICE Cannot Hold Criminal Defendant Who Made Bail, Judge Finds
ICE Cannot Hold Criminal Defendant Who Made Bail, Judge Finds
The government “simply cannot have it both ways” and keep an immigrant who faces criminal charges but who made bail in the custody of U.S. Immigration and Customs Enforcement, a federal judge said in a sharply worded ruling ordering the defendant’s release.
By Andrew Denney | UPDATEDDec 28, 2017 at 05:49 AM
The government “simply cannot have it both ways” and keep an immigrant who faces criminal charges but who made bail in the custody of U.S.
Immigration and Customs Enforcement, a federal judge said in a sharply worded ruling ordering the defendant’s release.
U.S. District Judge Dora Irizarry of the Eastern District of New York said in the ruling that the case, in which a dual citizen of Panama and Spain who overstayed his visa and who is accused of attempted money laundering is being held in an ICE facility in New Jersey, shows a “failure of coordination” between the Department of Homeland Security and the U.S. Department of Justice that jeopardizes the DOJ’s ability to prosecute crimes.
“The court is gravely concerned by this apparent willingness to prejudice the interests of the people of the United States and the constitutional rights of the accused, with resulting waste of DOJ, court and defense resources,” the judge said.
Irizarry ordered the government to either release defendant Salomon Benzadon Boutin or to dismiss the indictment against him with prejudice by Jan. 3.
According to the indictment, Boutin allegedly told an undercover agent that he uses his restaurant in Brooklyn as a front for a money laundering operation and offered his services to transfer drug sale proceeds from the United States for a Colombia-based criminal group.
Boutin was arrested on Oct. 14 and was later indicted on charges of attempted money laundering and one count of theft of public property.
Additionally, agents from the U.S. Drug Enforcement Administration, which conducted the investigation that led to Boutin’s arrest, lodged an ICE detainer against Boutin.
On Nov. 2, U.S. Magistrate Judge Ramon Reyes Jr. of the Eastern District of New York ordered Boutin’s release, which was secured by a $100,000 bond paid for by members of Boutin’s synagogue.
But after bail was granted, marshals kept Boutin in the courtroom to allow ICE agents to pick him up, said Boutin’s attorney, Peter Kirchheimer of the Federal Defenders of New York.
From there, a hearing for removal proceedings against Boutin was set for Dec. 13, but—for reasons that the government has yet to explain, according to Irizarry’s ruling—was later bumped up one week to Dec. 6, at which point he still had not retained defense counsel, ended up missing the new hearing date and was ordered removed in absentia.
Boutin remains in ICE custody at a jail in Hudson County, New Jersey.
Irizarry said that Boutin was subjected to an “unjustifiable, inexplicable and unexplained rush” through removal proceedings, saying she had concerns about the purpose behind this process and the denial of Boutin’s due process rights.
In addition to Kirchheimer, Boutin is also represented by Isaac Wheeler of the Federal Defenders of New York.
Assistant U.S. Attorney Girish Srinivasan of the Eastern District of New York appeared for the government in the case. His office declined to comment.
Boutin’s case was the second time in several months that Irizarry has addressed the question of whether ICE can hold a defendant while the Justice Department is simultaneously prosecuting a criminal case against the defendant, an issue that was addressed for the first time by a federal district court in 2012, but which has yet to be addressed by an appeals court.
On Nov. 3, Irizarry ordered the release of Saba Rosario Ventura, who arrived at John F. Kennedy International Airport from the Dominican Republic in April with a U.S. permanent resident ID card that had expired the previous day.
Ventura was arrested and charged with one count of attempting to illegally re-enter the United States. He made bail in August, but was immediately taken into ICE custody.
In situations such as those faced by Boutin and Ventura, the Bail Reform Act, which governs pretrial detention of defendants charged with federal crimes; and the Immigration and Nationality Act, which governs the detention of people who enter or remain in the United States unlawfully, are brought into conflict.
But Irizarry said the Bail Reform Act prevails in those situations, providing the exclusive means to detain immigrants awaiting a criminal trial.
Quoting a ruling by U.S. District Judge Valerie Caproni of the Southern District of New York in a similar case to order a criminal defendant to be released from ICE custody, Irizarry said in her decision to release Ventura that the government cannot treat the U.S. Code like a “take-out food menu” in which it can mix-and-match prosecution or removal with Bail Reform Act rules or ICE detention rules.
https://www.law.com/newyorklawjourna...l-judge-finds/
