                              FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                      NOV 19 2019
                                                                    MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No.    19-50336

                Plaintiff-Appellee,            D.C. No.
                                               3:19-cr-04083-LAB
 v.

JOSE DIAZ-HERNANDEZ,                           ORDER

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                     Larry A. Burns, Chief Judge, Presiding

                 Submitted to Motions Panel November 15, 2019*

Before: RAWLINSON, BYBEE, and IKUTA, Circuit Judges.

                                      ORDER

      Defendant 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


      *
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s pretrial detention order.

                                          I

      Diaz-Hernandez 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 illegal reentry.

      During 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


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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.

                                          II

      Under 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).

      Diaz-Hernandez 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


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properly declined to consider Diaz-Hernandez’s immigration detainer in assessing

whether pre-trial detention was appropriate under the Bail Reform Act.

      The 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. 1985)).

      In 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.

      Diaz-Hernandez’s argument is the mirror to the issue presented in Santos-


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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 1092.

      Further, 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 detention is appropriate under the Bail Reform Act, may not

speculate as to what may or may not happen in the future to the defendant under a

different statutory and regulatory regime.


                                          5                                   19-50336
      This conclusion is supported by our analysis in Santos-Flores. The

defendant in Santos-Flores was subject to an immigration detainer. 794 F.3d at

1092. Even though we held the district court erred in relying on this detainer to

conclude that the defendant posed a flight risk, we affirmed the district court’s

alternative holding that the defendant posed a voluntary flight risk. Id. We noted

that defendant had multiple unlawful reentries, was facing a significant prison

sentence, and that the weight of evidence was heavy against him. Id.

Consideration of these factors would have been superfluous if the defendant’s

immigration detainer negated any risk of flight for purposes of the Bail Reform

Act. And indeed, we did not even consider the immigration detainer as a factor in

this analysis. Id. at 1092–93.

      In summary, in assessing a motion to detain a defendant pending trial, a

district court must conduct an individualized evaluation that is guided by the

factors articulated at 18 U.S.C. § 3142(g). A defendant’s immigration detainer is

not a factor in this analysis, whether as evidence for or against a finding that the

defendant poses a risk of nonappearance.

                                          III

      Diaz-Hernandez next argues that the district court erred in detaining him

after the court theorized that there may be a condition – a $100,000 bond – which

would reasonably assure Diaz-Hernandez’s appearance. The district court declined


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to impose this condition, however, based on a finding that Diaz-Hernandez had not

shown that he could post such a bond.

      The district court’s conclusion was proper. Imposing a bond in these

circumstances could run afoul of 18 U.S.C. § 3142(c)(2), which states that a

“judicial officer may not impose a financial condition that results in the pretrial

detention of the person.” We have held that this provision is designed to “prevent

the practice of ‘de facto preventative detention,’ where a judge could in effect issue

a detention order without a proper finding of risk of flight . . . by granting bail but

setting an exorbitant financial condition that the defendant could not meet.”

United States v. Fidler, 419 F.3d 1026, 1028 (9th Cir. 2005) (quoting United States

v. Westbrook, 780 F.2d 1185, 1187 n. 3 (5th Cir.1986)).

      In ordering Diaz-Hernandez detained, the district court expressly noted its

ruling was without prejudice to Diaz-Hernandez moving to reopen the detention

hearing should he produce evidence showing that he, or his family, possessed the

financial resources to post such a bond. In these circumstances, we conclude that

reversal is not required.

      AFFIRMED.




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