OPINION & ORDER
ROYCE
C. LAMBERTH UNITED STATES DISTRICT COURT JUDGE.
Pending
before the Court is defendant's motion [19], which the
Court construes as a motion to compel compliance with Judge
Harvey's order [7] setting conditions for defendant's
supervised release. The motion tasks the Court with striking
the proper balance between the Judiciary's power to order
pretrial release of a person charged with illegal reentry
under the Bail Reform Act, 18U.S.C. §3142, and the
government's concurrent ability to detain that person to
effectuate his removal under the Immigration &
Nationality Act, 8 U.S.C. § 1231. After considering the
Bail Reform Act's structure and reasoning from first
principles, the Court holds that because the government has
chosen to bring criminal charges against defendant, a
judicial order under the Bail Reform Act provides the sole
avenue for detaining defendant while the charges are pending.
With
the Court's exclusive power comes the responsibility to
assure defendant's appearance in court and the safety of
the community. See § 3142(c). A new indictment
and new evidence requires the Court to determine whether
circumstances have sufficiently changed to justify detaining
defendant under the Bail Reform Act. To facilitate the
Court's reconsideration of defendant's supervised
release, the Court orders defendant to appear forthwith for
further detention proceedings.
I.
Factual Background
A month
into defendant's civil removal proceedings, the
government filed a criminal complaint charging defendant with
illegally reentering the United States in violation of 8
U.S.C. § 1326. Customs officials transferred custody of
defendant to the U.S. Marshals Service for a detention
hearing before Judge Harvey, who released defendant pending
trial. When Acting Chief Judge Boasberg denied the
government's request to revoke release, the Marshals
transferred defendant back to customs officials for continued
removal proceedings. Several days later, defendant filed this
motion, which the Court construes as a motion to compel
compliance with Judge Harvey's order for supervised
release.
The
case was randomly reassigned to this Court after the grand
jury returned an indictment. At arraignment, the government
urged the Court to revisit defendant's detention status
in light of the indictment and new factual evidence. The
Court deferred reconsidering defendant's detention status
until resolution of this motion.
II.
Discussion
Defendant's
motion asks the Court to referee the incongruity between his
current civil detention under the Immigration &
Nationality Act (INA) and this Court's prior order under
the Bail Reform Act (BRA) releasing him pending his criminal
trial. In Section II. A of its opinion, the Court concludes
the BRA must control the custody of a defendant charged with
illegal reentry, regardless of the government's civil
authority to hold him under the INA. But having resolved that
tension, the Court is mindful of the need to properly wield
its control. In Section II.B, considering the defendant's
newly returned indictment and the government's recently
discovered evidence, the Court decides to accept the
BRA's invitation to reopen defendant's detention
hearing in light of changed circumstances.
A.
Due to the pending criminal prosecution against the
defendant, the BRA must control the terms of his
confinement.
To
equipoise the Judiciary's power under the BRA with the
Executive's authority under the IN A, this Section
engages with the BRA and our Constitution's text,
structure, and history. Both routes lead to the same
conclusion: the BRA provides the exclusive means of detaining
a defendant criminally charged with illegal reentry.
1.
The BRA's specific treatment of removable aliens
criminally charged with illegal entry supersedes the
INA's general mandate to detain removable
aliens.
Defendant
asks this Court to untangle the collision between civil
detention of removable aliens under the INA and pretrial
release of illegal reentry defendants under the BRA. By
contrast, the government presents the INA and BRA as parallel
proceedings in which the government can simultaneously detain
a removable alien in one while litigating that alien's
detention in the other. But unfortunately for the government,
the BRA itself acknowledges the potential for the two paths
to intersect.
The
Supreme Court's statutory interpretation cases establish
"that a precisely drawn, detailed statute pre-empts more
general remedies," even where both "literally
appl[y]." Brown v. Gen. Servs. Admin., 425 U.S.
820, 834 (1976). This principle applies with added force when
the more specific statutory scheme is also more recent.
Cf. Credit Suisse Sec. (USA) LLC v. Billing, 551
U.S. 264, 275 (2007). And when the more recent, more specific
statutory scheme provides relief where none existed before,
courts generally regard the new relief as exclusive. Hink
v. United States, 550 U.S. 501, 506 (2007).
Prior
to the initial version of the BRA passed in 1966, courts made
pretrial detention decisions through a "dismal"
system trading "freedom for money." Patricia M.
Wald & Daniel J. Freed, The Bail Reform Act of 1966:
A Practitioner's Primer, 52 A.B.A. J. 940, 940
(1966). By enacting the BRA, as amended in 1984,
Congress-offered noncapital defendants a statutory right to
be released on personal recognizance or unsecured bond absent
a judicial determination "that such release will not
reasonably assure the ...