Submitted to Motions Panel November 15, 2019[*]
from the United States District Court for the Southern
District of California D.C. No. 3:19-cr-04083-LAB Larry A.
Burns, Chief Judge, Presiding.
Before: RAWLINSON, BYBEE, and IKUTA, Circuit Judges.
Jose Diaz-Hernandez appeals the district court's order of
detention pending trial. We have jurisdiction pursuant to 18
U.S.C. § 3145(c) and 28 U.S.C. § 1291. We hold that
the district court properly declined to consider the fact
that Diaz-Hernandez was subject to an immigration detainer in
assessing whether Diaz-Hernandez posed a risk of flight. We
therefore affirm the district court's pretrial detention
is charged with one count of being a removed alien found in
the United States, in violation of 8 U.S.C. § 1326(a).
At the initial appearance, the magistrate judge denied the
government's motion for detention, and ordered
Diaz-Hernandez released on conditions which included a $10,
000 appearance bond secured by a $2, 500 cash deposit. The
government appealed the magistrate judge's order to the
district court, arguing that Diaz-Hernandez lacked legal
status in the United States, the weight of evidence against
him was heavy, and he was therefore facing a substantial
prison sentence before being removed from the country. The
government also noted that Diaz-Hernandez had previously
served a 51-month sentence following a prior conviction for
the hearing before the district court, Diaz-Hernandez's
counsel claimed that Diaz-Hernandez was subject to an
immigration detainer - a request from the United States
Immigration and Customs Enforcement (ICE) to detain
Diaz-Hernandez should he be released. Counsel argued that
this detainer negated any risk of flight because if the
district court released Diaz-Hernandez, he would be detained
by ICE. Counsel thus contended that the government could not
meet its burden of establishing that Diaz-Hernandez was a
flight risk. The district court, however, declined to
"wade into the likelihood that the detainer would be
withheld or filed" and thus did not consider the effect
of any immigration detainer in assessing whether pre-trial
release was proper. Ultimately, the court concluded that the
$2, 500 cash deposit ordered by the magistrate judge was
insufficient to guarantee Diaz-Hernandez's presence,
given his criminal and immigration history as well as his
lack of legal status. While the court indicated that a $100,
000 or $150, 000 bond could be sufficient, it found that
Diaz-Hernandez would not be able to post such a bond if it
were imposed and thus ordered him detained.
the Bail Reform Act, pretrial detention is permitted only if
a judicial officer determines that there is no condition of
release, or combination of conditions, which would reasonably
assure the appearance of the defendant and the safety of the
community. See 18 U.S.C. § 3142(e)(1). "On
a motion for pretrial detention, the government bears the
burden of showing by a preponderance of the evidence that the
defendant poses a flight risk." United States v.
Santos-Flores, 794 F.3d 1088, 1090 (9th Cir. 2015). Any
doubts regarding the propriety of pre-trial release are to be
resolved in favor of the defendant. See United States v.
Townsend, 897 F.2d 989, 994 (9th Cir. 1990).
argues that the district court erred in deeming him a flight
risk because his immigration detainer, and detention by ICE
should he be released on bail, eliminates any such risk. We
hold, however, that the district court properly declined to
consider Diaz-Hernandez's immigration detainer in
assessing whether pre-trial detention was appropriate under
the Bail Reform Act.
Bail Reform Act directs a district court to assess a variety
of factors in determining whether there are conditions which
would reasonably assure the defendant's presence. These
include the history and characteristics of the defendant, the
weight of evidence, and the nature and circumstances of the
offense charged. See 18 U.S.C. § 3142(g).
Notably, "immigration status is not a listed
factor," and while "[a]lienage may be taken into
account,  it is not dispositive."
Santos-Flores, 794 F.3d at 1090 (citing United
States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir.
Santos-Flores, we held that a district court may not
rely on the "existence of an ICE detainer and the
probability of [the defendant's] immigration detention
and removal from the United States to find that no condition
or combination of conditions will reasonably assure [the
defendant's] appearance pursuant to 18 U.S.C. §
3142(e)." Santos-Flores, 794 F.3d at 1092. In
reaching this holding, we concluded that the "risk of
nonappearance referenced in 18 U.S.C. § 3142 must
involve an element of volition." Id. at 1091.
We also recognized, however, that a district court "may
not . . . substitute a categorical denial of bail for the
individualized evaluation required by the Bail Reform
Act." Id. at 1091-92.
argument is the mirror to the issue presented in
Santos-Flores. In Santos-Flores, the
district court found that the defendant's immigration
detainer (and the possibility of deportation) created a risk
that the defendant would not appear. Diaz-Hernandez, by
contrast, seeks to use his immigration detainer as conclusive
evidence that he poses no risk of nonappearance. However,
just as an immigration detainer cannot support the
categorical denial of bail, neither can an immigration
detainer support the categorical grant of bail. Rather, the
Bail Reform Act mandates an individualized evaluation guided
by the factors articulated in § 3142(g). Id. at
we conclude that the "individualized evaluation"
required by the Bail Reform Act does not include
consideration of an immigration detainer or the possibility
that the defendant, if released from criminal custody, would
be held in immigration custody. First, as discussed,
immigration status is not an articulated factor in §
3142(g). See id. at 1090. Second, detention of a
"criminal defendant pending trial pursuant to the [Bail
Reform Act] and detention of a removable alien pursuant to
the [Immigration and Nationality Act] are separate functions
that serve separate purposes and are performed by different
authorities." United States v. Vasquez-Benitez,
919 F.3d 546, 552 (D.C. Cir. 2019). A district court,
addressing whether pre-trial ...