United States District Court, D. South Dakota, Southern Division
ORDER ON DEFENDANT'S MOTION TO RECONSIDER
DETENTION DOCKET NO. 28
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
Luis Angel Torres-Ramirez is before the court on an
indictment alleging he used a fraudulent identification
document in violation of 18 U.S.C. § 1546(b)(1).
See Docket No. 1. Mr. Torres-Ramirez now seeks
release pursuant to the Bail Reform Act, 18 U.S.C. §
3142. See Docket No. 28.
facts insofaras they are pertinent to the pending motion are
as follows. Mr. Torres-Ramirez was arrested on June 20, 2018,
in Brookings, South Dakota. See Docket No. 13. The
court held his initial appearance on June 22, 2018.
See Docket No. 8. Pretrial services did not
interview Mr. Torres-Ramirez in preparation for the hearing,
so the only information the court had about this gentleman
was his criminal history, which is extremely minimal. He was
convicted in 2004 of disobeying a stop light and not having a
driver's license. In 2013 he was convicted of a
misdemeanor charge of driving under the influence. The court
detained Mr. Torres-Ramirez based upon the government's
request for detention and the defendant's representation
that he did not seek release at that time. The primary reason
relied upon by the government in support of its detention
request is that the Department of Homeland Security
Immigration and Customs Enforcement agency
(“ICE”) had lodged a detainer against Mr.
the filing of the instant motion for release, Mr.
Torres-Ramirez was interviewed by pretrial services. The
following information was contained in the pretrial report
and is not disputed by the government. Mr. Torres-Ramirez, a
native of Mexico, has lived in the United States since 2000
and was previously in Nebraska until 2005. He returned to
Mexico to visit family in 2005 and then returned to Nebraska
again in 2006. Two years ago he moved to Brookings, South
Dakota, and has lived there since that time with his friend,
who is also on pretrial supervision. He has relatives living
in Kansas who are helping him financially, as does his friend
with whom he lives. He is in excellent physical health, has
no mental health concerns and no substance abuse issues. He
completed alcohol classes in 2014 in connection with his DUI.
He has no instances of failing to appear in court when
required to do so.
Torres-Ramirez's Kansas relatives retained Bassel
El-Kasaby, an immigration lawyer, to represent him in
immigration proceedings. Mr. El-Kasaby testified
telephonically at the hearing. He has been an immigration
lawyer for 18 years and practices in Omaha, Nebraska. He
frequently presents continuing legal education programs on
the subject of immigration law. These CLEs are attended by
judges and lawyers.
El-Kassaby testified (citing section 236(c) of the
Immigration and Naturalization Act, and CFR § 1003.19(a)
- (e)), that the immigration court will not consider whether
to grant Mr. Torres-Ramirez an administrative bond unless and
until Mr. Torres-Ramirez enters the custody of ICE. Mr.
El-Kasaby testified Mr. Torres-Ramirez is eligible for an
administrative bond as he is not in the category of persons
for whom detention in immigration court is mandatory. Mr.
El-Kasaby testified that if Mr. Torres-Ramirez were released
by this court and entered ICE custody, he could appear before
an immigration court within a very short time to seek an
administrative bond-probably within 7 to 10 days. Immigration
courts can issue bonds on a personal recognizance basis, they
can issue monetary bonds, they can impose electronic
monitoring, or any combination of these factors.
immigration court does not grant Mr. Torres-Ramirez an
administrative bond, the United States Attorney's Office
can issue a writ of habeas corpus ad prosequendum, which the
immigration court will honor. Such a writ can easily place
Mr. Torres-Ramirez back into the custody of the United States
Marshal's Service should he not be granted bond, or even
if a removal order is issued. There is generally at the least
a 2-3 day interval between the issuance of a removal order
and the time a defendant in immigration court is actually
placed on a plane to be deported. Often the interval of time
between the entry of a removal order and actual removal is
Special Agent Casey Cody also testified at the hearing. He
affirmed much of Mr. El-Kasaby's testimony. Agent Cody
testified if this court released Mr. Torres-Ramirez, he could
probably appear before an immigration court for a bond
hearing within two weeks. He also agreed there would be an
interval of some few days, at the least, between the issuance
of a removal order and Mr. Torres-Ramirez's actual
removal. Furthermore, Agent Cody readily agreed he was able
and willing to monitor the immigration hearings regarding Mr.
Torres-Ramirez and able and willing to notify the United
States Attorney's Office of developments in that court
concerning Mr. Torres-Ramirez's custody status.
Cody testified that Mr. Torres-Ramirez's “rap
sheet” contained numerous aliases, but clarified that
those aliases were all similar to his real name, just
variations on that name. Furthermore, Agent Cody testified
that the variations are not necessarily the result of
dissembling on the defendant's part, but could represent
the agent's understanding (or misunderstanding) of the
defendant's name when making a data entry onto the NCIC
conclusion of the evidentiary hearing, the government moved
to detain Mr. Torres-Ramirez based solely on risk of flight.
The government argued Mr. Torres-Ramirez is accused of using
fraudulent documents in this case, that we do not know his
true name or his true identification, that he cannot engage
in employment and therefore cannot support himself, and that
it is inappropriate for him to reside with someone who is
also on pretrial release. Defense counsel sought release,
arguing there were conditions of release the court could
fashion to address risk of flight. Counsel argued that risk
of flight entails some type of volitional act on the part of
the defendant and does not encompass the potential for
involuntary removal by ICE. Counsel argued the ICE detainer
is not determinative. Counsel pointed out that Mr.
Torres-Ramirez has been fingerprinted by the government, so
his identification is verified. Finally, counsel pointed out
that if the immigration court grants Mr. Torres-Ramirez an
administrative bond, he will be supervised by both this court
and by the immigration court.
An ICE Detainer ...