                                                                                   FILED
                                                                       United States Court of Appeals
                                        PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        November 22, 2017

                                                                            Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 17-3178

MARIO AILON-AILON,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                              for the District of Kansas
                         (D.C. No. 6:17-CR-10104-EFM-1)
                       _________________________________

Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public
Defender, and Jennifer A. Amyx, Assistant Federal Public Defender, with counsel on the
briefs), Kansas Federal Public Defender’s Office, Topeka, Kansas, for
Defendant-Appellant.

Brent I. Anderson, Assistant United States Attorney (Thomas E. Beall, United States
Attorney, with counsel on the brief), United States Attorney’s Office, District of Kansas,
Wichita, Kansas, for Plaintiff-Appellee.
                        _________________________________

Before LUCERO, O’BRIEN, and PHILLIPS, Circuit Judges.
                  _________________________________

PER CURIAM.
                        _________________________________

       We expedited consideration of this bail appeal to consider Mario Ailon-

Ailon’s argument that the government has misinterpreted the word “flee” as it
appears in 18 U.S.C. § 3142(f)(2), resulting in his illegal pre-trial detention. He

argues that involuntary removal by the Bureau of Immigration and Customs

Enforcement (“ICE”) does not constitute flight of the sort that would justify

detention. On initial consideration, a magistrate judge agreed and determined that

Ailon-Ailon should not be detained before trial. On review of the magistrate judge,

the district court reversed, ordering that he be detained. We conclude that the plain

meaning of “flee” refers to a volitional act rather than involuntary removal, and that

the structure of the Bail Reform Act supports this plain-text reading. Exercising

jurisdiction under 18 U.S.C. § 3145(c), we reverse and remand for further

proceedings.

                                           I

      Ailon-Ailon, a citizen of Guatemala, has lived in Dodge City, Kansas, for at

least seven years. In July 2017, he was arrested by ICE agents, who determined that

he had reentered the United States illegally after he was ordered removed in 2001.

Rather than immediately removing him again, ICE referred the matter for criminal

prosecution. Ailon-Ailon was charged with one count of illegal reentry in violation

of 8 U.S.C. § 1326(a), as enhanced by § 1326(b)(1). He is subject to a reinstated

removal order, and ICE has lodged a detainer with the United States Marshals

Service, requesting custody of Ailon-Ailon if he is released from the Marshals’

custody.

      The government moved to detain Ailon-Ailon prior to trial on the ground that,

if he was released, he would be removed from the country by ICE before trial. It

                                           2
argued that because he is subject to a reinstated order of removal, ICE would be

obligated to remove him within ninety days. He would therefore not be present for

trial. A magistrate judge denied the government’s motion, concluding that Ailon-

Ailon was not a flight risk because “the risk of flight that the [Bail Reform Act] is

concerned with is not a flight paid for by the U.S. Government, and if the

Government can’t decide whether to keep him and prosecute him or deport him,

that’s on them.” The magistrate judge ordered that Ailon-Ailon be released subject

to a ten-thousand dollar bond and certain conditions.

      On appeal of the magistrate’s decision to the district court, the government

reasserted its definition of “flee.” By written order, the district court reversed, but

specifically concluded in doing so that Ailon-Ailon was not a voluntary flight risk,

and acknowledged that “[a]s a policy matter, . . . if the United States government,

through the Department of Justice, wanted [Ailon-Ailon] present for prosecution, it

should not . . . complain [about his] non-appearance due solely to the actions of the

United States government, through the Department of Homeland Security.”

However, the district court found by a preponderance of the evidence that ICE would

remove him before trial and that such removal qualified as flight. It ordered that

Ailon-Ailon be detained. This appeal followed.

                                            II

      “In our society liberty is the norm, and detention prior to trial or without trial

is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755

(1987). The Bail Reform Act sets forth one such exception. Under that Act,

                                            3
individuals charged with a crime are generally “released on personal recognizance or

upon execution of an unsecured appearance bond,” 18 U.S.C. § 3142(a)(1), or they

may be “released on a condition or combination of conditions” that will reasonably

ensure their appearance in court and the safety of the community. § 3142(a)(2),

(c)(1).

          The Act establishes a two-step process for detaining an individual before trial.

§ 3142(f). First, the government may move for pre-trial detention if the defendant

has been charged with certain enumerated offenses or “in a case that involves . . . a

serious risk that such person will flee; or . . . a serious risk that such person will

obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to

threaten, injure, or intimidate, a prospective witness or juror.” Id. If the court

determines that there is such a risk, the government must prove at the second step of

the process that there “is no condition or combination of conditions” that “will

reasonably assure the [defendant’s] appearance . . . as required [as well as] the safety

of any other person and the community.” Id. The district court is directed to

consider various factors in making this determination, including “the nature and

circumstances of the offense charged,” “the weight of the evidence against the

person,” “the history and characteristics of the person,” and “the nature and

seriousness of the danger to any person or the community that would be posed by the

person’s release.” § 3142(g).

          In this case, the government did not allege that Ailon-Ailon represented a

danger to the community; it relied solely on the risk that Ailon-Ailon would flee in

                                              4
urging pre-trial detention. The government bears the burden of proving a defendant

is a flight risk by a preponderance of the evidence. United States v. Cisneros, 328

F.3d 610, 616 (10th Cir. 2003). “We apply de novo review to mixed questions of law

and fact concerning the detention or release decision, but we accept the district

court’s findings of historical fact which support that decision unless they are clearly

erroneous.” Id. at 613.

                                             III

       Ailon-Ailon argues that the word “flee” as it appears in § 3142(f)(2) does not

encompass involuntary removal. He contends the risk that he would be removed

from the United States by ICE does not constitute a risk that he will flee prior to trial.

This is an issue of first impression in this circuit.1

       District courts considering this argument have reached varying conclusions.

Compare United States v. Ong, 762 F. Supp. 2d 1353, 1363 (N.D. Ga. 2010) (denying

pre-trial release on the ground that “there is a great likelihood that [the defendant]

will be deported from the United States [pursuant to an ICE detainer and order of

removal] prior to the conclusion of any criminal proceedings against him”), and

United States v. Pantaleon-Paez, No. 07-292, 2008 WL 313785, at *4 (D. Idaho Feb.

1, 2008) (unpublished) (“In light of [ ]ICE’s imminent detention and subsequent


       1
         The district court relied on United States v. Vasquez, 413 F. App’x 42 (10th
Cir. 2011) (unpublished), an Order and Judgment concerning a detainer and
reinstated order of removal in the context of 18 U.S.C. § 3143, which governs release
pending sentencing or appeal. Although it is understandable that the district court
applied Vasquez, it contains no analysis of involuntary removal as flight. Indeed,
there is only a passing reference to the issue.
                                             5
deportation efforts in the event of Defendant’s release, it cannot be said that there is

any condition or combination of conditions that will assure his appearance at trial.”),

with United States v. Barrera-Omana, 638 F. Supp. 2d 1108, 1111 (D. Minn. 2009)

(“The risk of nonappearance referenced in . . . § 3142 has to involve an element of

volition.”), and United States v. Montoya-Vasquez, No. 4:08-cr-3174, 2009 WL

103596, at *5 (D. Neb. Jan. 13, 2009) (unpublished) (stating that § 3142 requires a

finding that the defendant “would fail to appear by virtue of his own volition, actions

and will”). In a slightly different context, the Ninth Circuit has suggested that “flee”

as used in § 3142 involves an element of volition. See United States v. Santos-

Flores, 794 F.3d 1088, 1091 (9th Cir. 2015) (“As a number of district courts have

persuasively explained, the risk of nonappearance referenced in . . . § 3142 must

involve an element of volition.”).

      We agree with the latter set of courts that a risk of involuntary removal does

not establish a “serious risk that [the defendant] will flee” upon which pre-trial

detention may be based. § 3142(f)(2)(A). Having failed to make the threshold

showing required by § 3142(f), the government’s detention motion fails at the first

step of our analysis.

      In interpreting a statute, “we look initially to the plain language of the

provision at issue. If the words of the statute have a plain and ordinary meaning, we

apply the text as written.” Fruitt v. Astrue, 604 F.3d 1217, 1220 (10th Cir. 2010)

(quotation, citation, and alteration omitted). The ordinary meaning of “flee” suggests

volitional conduct. For example, Black’s Law Dictionary (10th ed. 2014) defines

                                            6
“flee” as: “To run away; to hasten off . . . To run away or escape from danger,

pursuit, or unpleasantness; to try to evade a problem . . . To vanish; to cease to be

visible . . . To abandon or forsake.” Webster’s Third New International Dictionary

(1976) defines “flee” as “to run away from.” As Ailon-Ailon noted at oral argument,

one would not describe an individual who has been arrested at a crime scene and

involuntarily transported to a police station as having fled the scene.

      The structure of the Bail Reform Act supports this plain-language

interpretation. See Homeland Stores, Inc. v. Resolution Tr. Corp., 17 F.3d 1269,

1273 (10th Cir. 1994) (“In interpreting a statutory provision, context and structure

are, as in examining any legal instrument, of substantial import in the interpretive

exercise.” (quotation omitted)). “Congress chose not to exclude removable aliens

from consideration for release or detention in criminal proceedings,” but instead set

forth “specific procedures to be followed when a judicial officer determines that a

defendant is not a citizen of the United States or lawfully admitted for permanent

residence.” Santos-Flores, 794 F.3d at 1090-91. The Act provides that a removable

alien may be temporarily detained for up to ten days to permit ICE to take custody.

§ 3142(d)(2).2 If ICE declines to do so, such “person 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


      2
        Because Ailon-Ailon was initially arrested by ICE, it does not appear that the
notice provision of subsection (d) applies to this case. Nothing in this opinion should
be read to suggest that ICE’s detainer is somehow invalid or unenforceable because
the subsection (d) process was not pursued.
                                            7
proceedings.” Id. This provision demonstrates that a defendant “is not barred from

release because he is a deportable alien.” United States v. Adomako, 150 F. Supp. 2d

1302, 1307 (M.D. Fla. 2001); see also United States v. Brown, No. 4-15-cr-102, 2017

WL 3310689, at *4 (D.N.D. July 31, 2017) (unpublished) (because “Congress

affirmatively extended to alien persons the same protections it affords citizens under

the Act, . . . the court would violate the Bail Reform Act if it detained defendant

based only on the fact he is an alien and ICE has filed a detainer”); United States v.

Stepanyan, No. 3:15-CR-00234-CRB, 2015 WL 4498572, at *2 (N.D. Cal. July 23,

2015) (unpublished) (noting the government’s argument that a defendant’s “status as

a deportable alien itself bars him from release is incompatible with the clear

directives of § 3142(d)”).

      Further, although Congress established a rebuttable presumption that certain

defendants should be detained, it did not include removable aliens on that list. See

§ 3142(e)(3). The Bail Reform Act directs courts to consider a number of factors and

make pre-trial detention decisions as to removable aliens “on a case-by-case basis.”

Barrera-Omana, 638 F. Supp. 2d at 1111 (quotation omitted). Yet under the

government’s construction, the Act’s “carefully crafted detention plan . . . would

simply be overruled by an ICE detainer,” precluding “any kind of individualized

consideration of a person before the Court.” Id.

      Finally, the Bail Reform Act provides an affirmative defense to prosecution

for failure to appear if “uncontrollable circumstances prevented the person from

appearing or surrendering, and . . . the person did not contribute to the creation of

                                            8
such circumstances in reckless disregard of the requirement to appear or surrender.”

§ 3146(c). This section implies that the Act is concerned with “the risk that the

defendant may flee or abscond, that is, that he would fail to appear by virtue of his

own volition, actions and will.” Montoya-Vasquez, 2009 WL 103596, at *5.

      Despite the plain meaning of the word and the structure of the Act, the

government argues that interpreting “flee” to include involuntary removal would

better effectuate congressional intent. It argues that such an interpretation would

reconcile ICE’s authority to refer cases for criminal prosecution with its statutory

duty to promptly remove individuals who are subject to reinstated removal orders.

See 8 U.S.C. § 1231(a)(1)(A) (stating that ICE “shall remove the alien from the

United States within a period of 90 days”). But it is not clear to us that ICE must

remove Ailon-Ailon before trial. An illegal reentry prosecution may well be

completed prior to the ninety-day deadline. The government also argues that pre-trial

detention is justified by the inconvenience to ICE that will be involved if it must take

Ailon-Ailon into custody under its detainer. While it would be more convenient and

efficient for him to be held by the Marshals up to and during his trial, the

government’s convenience cannot justify a tortured reading of statutory language.

      Further, regulations regarding voluntary departure provide that ICE may

temporarily prevent an alien from leaving the country “if his departure would be

prejudicial to the interests of the United States.” 8 C.F.R. § 215.2(a). A departure is

deemed prejudicial to United States interests if the alien “is needed in the United

States as a witness in, or as a party to, any criminal case under investigation or

                                            9
pending in a court.” § 215.3(g). Ailon-Ailon also cites ICE’s detainer form, which

invites law-enforcement agencies to work with ICE to keep a criminal defendant in

the United States for prosecution purposes.

       In any event, to the extent any conflict exists, it is a matter for the Executive

Branch to resolve internally. “The problem here is not that defendant will absent

himself from the jurisdiction, but that two Article II agencies will not coordinate their

respective efforts. . . . It is not appropriate for an Article III judge to resolve

Executive Branch turf battles.” Barrera-Omana, 638 F. Supp. 2d at 1111; see also

United States v. Tapia, 924 F. Supp. 2d 1093, 1098 (D.S.D. 2013) (“[O]ne arm of the

Executive, wishing to prosecute this defendant criminally, is arguing that he is likely

to flee based on the possible actions of a different arm of the same Executive.”);

United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1170 (D. Or. 2012) (“If the

Executive Branch chooses not to release the Defendant and instead decides to

abandon criminal prosecution of the pending charge and proceed directly with

Defendant’s removal and deportation, the law allows the Executive Branch to do

that.”).

       In light of the plain meaning of “flee,” the structure of the Bail Reform Act,

and the importance of the liberty interests at stake in this case, we decline to resolve

the alleged conflict within the Executive Branch. We hold that, in the context of

§ 3142(f)(2), the risk that a defendant will “flee” does not include the risk that ICE

will involuntarily remove the defendant.

                                             IV

                                             10
      The order of the district court denying Ailon-Ailon pre-trial release is

REVERSED. We REMAND with instructions to set appropriate conditions for

Ailon-Ailon’s release pending trial. When the conditions of release have been met,

the United States Marshals shall release Ailon-Ailon to ICE custody, pursuant to the

detainer. We GRANT Ailon-Ailon’s motion to file a reply brief.




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