This is not a 7th Circuit Court of Appeals decision. 

USA v. Jose Chavez-Rivas, 08 CR 31 (USDC Eastern District of Wisconsin, Judge Lynn Adelman). 

The government charged defendant Jose Chavez-Rivas with unlawful re-entry after
deportation, 8 U.S.C. § 1326, and a magistrate judge initially ordered him detained pending trial. However, the magistrate judge subsequently reconsidered and released defendant on  $50,000 bond (with $10,000 to be posted in cash) and other conditions including electronic monitoring.

The government asked me to revoke the release order, and I stayed it pending review. Under 18 U.S.C. § 3145(a), my review is de novo, United States v. Portes, 786 F.2d  758, 761 (7th Cir. 1985).  For the reasons that follow, I deny the government’s motion to revoke the release order.

II. EFFECT OF DEFENDANT’S IMMIGRATION STATUS ON THE RELEASE DECISION

In its motion, the government focuses on defendant’s illegal presence in the United
States and the likelihood that, if I release him, he will be turned over to ICE and deported.  Thus, it argues that no conditions of release will assure his appearance in court.

Section 3142(d) of the Bail Reform Act addresses the issue of release when the
defendant is a deportable alien. Under § 3142(d), if the court determines that the defendant is not a United States citizen or a lawfully admitted permanent resident and may flee or pose a danger to any other person or the community, it shall detain him for no more than ten days and direct the government’s attorney to notify the appropriate immigration official.

If such official does not take the defendant into custody during that ten day period, the defendant “shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings.” 18 U.S.C. § 3142(d).

In the present case, the magistrate judge did not temporarily detain defendant under §3142(d) at the initial appearance; rather, he simply entered a detention order under § 3142(f).Nevertheless, ICE has been notified of defendant’s presence and has not taken him into custody, instead lodging a detainer. That being the case, § 3142(d) requires me to treat defendant like any other offender under the Bail Reform Act.

It should be noted that nothing in this order precludes ICE from taking defendant into custody and thereby preventing his release. I further understand that 8 U.S.C. § 1231(a)(4) directs ICE to remove defendant and that the “possibility of . . . further imprisonment is not a reason to defer removal.”

III. GENERAL RELEASE STANDARDS

In determining whether (and which) conditions of release will reasonably assure the appearance of the defendant and the safety of the community, the court considers (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the defendant; (3)the history and characteristics of the defendant; and (4) the nature and seriousness of the danger, if any, that release would pose. 18 U.S.C. § 3142(g).

IV. ANALYSIS OF PRESENT CASE

First, because defendant is not charged with an offense under §3142(f)(1), he may not be detained as a danger to the community. Second, defendant’s status as a deportable alien does not mandate detention. Rather, he must “be treated in accordance with the other provisions of §3142, notwithstanding the applicability of other provisions of law governing release pending . . . deportation or exclusion proceedings.” § 3142(d).

Thus, it would be improper to consider only defendant’s immigration status, to the exclusion of the §3142(g) factors, as the government suggests. 

This leaves risk of flight, which I must consider under § 3142(f)(2) in all cases. As noted above, defendant’s immigration status is relevant to this determination. However, under the particular facts of this case, I conclude that the government has not demonstrated that no conditions can reasonably assure defendant’s appearance.

First, defendant has strong family and community ties. He has, when out of custody, resided in the Milwaukee area for a decade. He has also been married for more than ten years and has five young children. Indeed, it appears that he returned to the United States after being deported in order to be with his family. These ties provide some assurance that if released to live with his family, defendant will not flee. Further, defendant’s wife and children are citizens and seem unlikely to accompany defendant if he chose to flee. 

Second, the magistrate judge imposed strict conditions, including home confinement on electronic monitoring. Courts have recognized that electronic monitoring is an effective means of deterring flight. See, e.g., United States v. O’Brien, 895 F.2d 810, 815-16 (1st Cir. 1990). The magistrate judge also required a substantial monetary bond to be posted/pledged by defendant’s wife.

Third, nothing in the circumstances of the offense suggests a risk of flight.The evidence against defendant appears to be strong, and if convicted he likely faces a significant prison sentence followed by deportation. These circumstances may create some incentive to flee, but under all the circumstances, I cannot conclude that they outweigh the factors favoring release.

Ultimately, § 3142 “does not seek ironclad guarantees, and the requirement that the conditions of release ‘reasonably assure’ a defendant’s appearance cannot be read to require guarantees against flight.” United States v. Chen, 820 F. Supp. 1205, 1208 (N.D. Cal. 1992). 

I find that the conditions set by the magistrate judge in this case are sufficient.

V. CONCLUSION

THEREFORE, IT IS ORDERED that the government’s motion for review and revocation
of the release order is DENIED.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

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