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United States v. Torres-Ramirez

United States District Court, D. South Dakota, Southern Division

September 5, 2018





         Defendant 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.


         The 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. Torres-Ramirez.

         Following 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.

         Mr. 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.

         Mr. 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.

         If the 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 longer.

         ICE 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.

         Agent 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 site.

         At the 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.


         A. An ICE Detainer ...

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