 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 25, 2019              Decided March 26, 2019

                        No. 18-3076

                UNITED STATES OF AMERICA,
                       APPELLANT

                              v.

             JAIME OMAR VASQUEZ-BENITEZ,
                 ALSO KNOWN AS GUERO,
        ALSO KNOWN AS ALEX ANTONIO VASQUEZ,
              ALSO KNOWN AS JAIME HUREO,
         ALSO KNOWN AS JERMAN VASQUEZ-MATO,
          ALSO KNOWN AS JULIO ISRAEL VASQUEZ,
       ALSO KNOWN AS HERMAN EDUARDO VASQUEZ,
                       APPELLEE


                 Consolidated with 18-3080


        Appeals from the United States District Court
                for the District of Columbia
                   (No. 1:18-cr-00275-1)


    Kathryne Gray, Trial Attorney, United States Department
of Justice, argued the cause for the appellant. Jessie K. Liu,
United States Attorney, Erez Reuveni, Director, Joshua S.
Press, Trial Attorney, Nicholas P. Coleman and Elizabeth
                               2
Trosman, Assistant United States Attorneys were with her on
brief.

    Julia Fong Sheketoff, Assistant Federal Public Defender,
argued the cause for the appellee. A.J. Kramer, Federal Public
Defender was with her on brief. Mary M. Petras, Assistant
Federal Public Defender, entered an appearance.

     Yihong Mao was on brief for the amicus curiae National
Immigration Project of the National Lawyers Guild in support
of the appellee.

    Before: HENDERSON and TATEL, Circuit Judges, and
GINSBURG, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge HENDERSON.

     KAREN LECRAFT HENDERSON, Circuit Judge: Jaime Omar
Vasquez-Benitez is a citizen of El Salvador who has illegally
entered the United States more than once and been removed
from the country at least once. Upon his most recent entry,
Immigration and Customs Enforcement (“ICE”) civilly
detained him for the purpose of removing him from the
country. The United States Attorney for the District of
Columbia (“U.S. Attorney”) also criminally charged him with
unlawful reentry. Both his criminal and civil proceedings are
currently ongoing. The district court decided (1) that it is
unnecessary to detain Vasquez-Benitez in order to ensure his
presence at his criminal trial and (2) that its ruling releasing
him pre-trial means ICE cannot civilly detain Vasquez-Benitez
in order to remove him from the country. The United States
appeals both decisions. We affirm the district court’s decision
declining to detain Vasquez-Benitez pending trial but reverse
its decision prohibiting ICE from civilly detaining him pending
removal.
                                3
                       I.   BACKGROUND

     Vasquez-Benitez first entered the country illegally
sometime before 2001. In 2001, a bench warrant was issued for
his arrest after he failed to appear in California state court on a
charge of driving without a license. In 2005, he was accused of
breaking into a woman’s residence in Washington, D.C.,
attempting to sexually assault her at knifepoint and threatening
retaliation if she called the police. He stood trial in D.C.
Superior Court, where he was acquitted of certain charges but
convicted of obstruction of justice based on the threat. He was
sentenced to a term of three years’ imprisonment, which he
served from 2005 until 2008. Upon his release in 2008, ICE
initiated proceedings to remove him from the country and he
was removed to El Salvador. He reentered the country
sometime before 2016, when he was arrested by the
Metropolitan Police Department (“MPD”) for allegedly
attacking two individuals with a knife and identifying himself
as a member of the violent 18th Street gang. The assault
charges against him were dismissed, apparently before ICE
was alerted to his presence, and he was released into the
community. On July 12, 2018, MPD officers stopped Vasquez-
Benitez because his torso and arms were covered in tattoos
associated with 18th Street and arrested him for suspected gang
activity. This time the MPD contacted ICE.

                  A. The Civil Proceedings

    ICE identified Vasquez-Benitez as an illegal alien subject
to a final order of removal and took him into immigration
custody pursuant to 8 U.S.C. § 1231(a)(5). On July 20, he
asserted a basis for withholding of removal. Proceedings to
assess his claim are ongoing. The United States believes the
Immigration and Nationality Act (“INA”), specifically 8
                                   4
U.S.C. § 1231,1 authorizes Vasquez-Benitez’s civil detention
until the removal proceedings are concluded, which authority
he disputes.2

                 B. The Criminal Proceedings

     On August 16, 2018, an ICE officer, with probable cause
to believe Vasquez-Benitez had illegally reentered the country
in violation of 8 U.S.C. § 1326,3 obtained an arrest warrant. On
August 20, Vasquez-Benitez was arrested and appeared before

     1
        See 8 U.S.C. § 1231(a)(2) (“During the removal period, the
Attorney General shall detain the alien.”); 8 U.S.C. § 1231(a)(5) (“If
the Attorney General finds that an alien has reentered the United
States illegally after having been removed or having departed
voluntarily, under an order of removal, the prior order of removal is
reinstated from its original date and is not subject to being reopened
or reviewed, the alien is not eligible and may not apply for any relief
under this chapter, and the alien shall be removed under the prior
order at any time after the reentry.”); 8 U.S.C. § 1231(a)(6) (“An
alien ordered removed who is inadmissible under section 1182 of this
title, removable under section 1227(a)(1)(C), 1227(a)(2), or
1227(a)(4) of this title or who has been determined by the Attorney
General to be a risk to the community or unlikely to comply with the
order of removal, may be detained beyond the removal period . . . .”).
      2
        We do not reach Vasquez-Benitez’s argument that ICE lacks
authority under the INA to detain him, which he failed to adequately
raise below.
      3
        See 8 U.S.C. § 1326(a) (“Subject to subsection (b), any alien
who—(1) has been . . . removed [from the United States] . . . and
thereafter (2) enters, attempts to enter, or is at any time found in, the
United States . . . shall be fined under title 18, or imprisoned not
more than 2 years, or both.”); 8 U.S.C. § 1326(b) (“Notwithstanding
subsection (a), in the case of any alien described in such subsection—
(1) whose removal was subsequent to a conviction for . . . a felony
(other than an aggravated felony), such alien shall be fined under title
18, imprisoned not more than 10 years, or both[.]”).
                               5
a magistrate judge. The magistrate judge continued Vasquez-
Benitez’s initial appearance and granted the U.S. Attorney’s
initial request to detain Vasquez-Benitez pending further
proceedings.
     On August 22, Vasquez-Benitez entered his initial
appearance and on August 28 the magistrate judge conducted a
detention hearing under the Bail Reform Act (“BRA”), 18
U.S.C. § 3142. The magistrate judge declined to detain
Vasquez-Benitez pending trial because the U.S. Attorney “did
not argue that the defendant should be held because he is a
danger” and did not “show by a preponderance of the evidence
that he’s a serious risk of flight.” The magistrate judge ordered
that Vasquez-Benitez be released from the custody of the U.S.
Marshal subject to restrictive conditions. The U.S. Attorney
immediately moved in district court to revoke the magistrate
judge’s order and requested a stay of the order pending further
proceedings. A district judge granted the stay motion and
scheduled a hearing to consider the motion to revoke. On
August 30, the district judge denied the U.S. Attorney’s
revocation motion, finding “no reason to change the decision”
by the magistrate judge that Vasquez-Benitez need not be
detained pending trial under the BRA. The district judge
ordered that Vasquez-Benitez be released from the custody of
the U.S. Marshal subject to the same restrictive conditions
imposed by the magistrate judge. The U.S. Attorney moved to
stay the order pending appeal but the district judge denied the
motion. The U.S. Marshal subsequently released Vasquez-
Benitez and ICE then took custody of him.
     On September 7, Vasquez-Benitez filed a motion to
compel his release from ICE custody or, in the alternative, to
dismiss the criminal charge against him with prejudice. On
September 13, the grand jury indicted Vasquez-Benitez on one
count of reentry of an alien deported following a felony
conviction, in violation of 8 U.S.C. § 1326(a), (b)(1), and the
case was reassigned to a different district judge. The new
                                6
district judge scheduled an arraignment and motion hearing for
September 18 and a magistrate judge issued a writ of habeas
corpus ad prosequendum, ordering ICE to transfer custody of
Vasquez-Benitez to the U.S. Marshal so that he could attend
the hearing. At the hearing, Vasquez-Benitez pleaded not guilty
and the district judge heard oral argument on his motion to
compel his release from ICE custody or, in the alternative, to
dismiss the criminal charge with prejudice.
     On September 26, the district judge issued an order
granting Vasquez-Benitez’s motion to compel his release. The
district judge held that ICE loses its authority to civilly detain
an illegal alien pending removal under the INA if that alien is
charged with a crime and the court finds there is no need to
detain him pending trial under the BRA. The district judge also
announced his intention to reconsider, in light of new evidence,
the BRA detention decision reached by the magistrate judge
and the previous district judge. On September 27, the district
judge conducted another detention hearing and—after
considering the new evidence—agreed with the two
predecessor judges that “there is not a sufficient risk of flight
to justify pretrial detention.” The district judge subsequently
entered an order directing the U.S. Marshal to release Vasquez-
Benitez and not to return him to ICE custody.
     In this consolidated appeal the U.S. Attorney challenges
the district court decision releasing Vasquez-Benitez pre-trial
under the BRA; separately, the Office of Immigration
Litigation of the Civil Division of the Department of Justice
challenges the district court order “prohibiting [ICE] from
administratively detaining the defendant for immigration
proceedings during the pendency of his criminal prosecution.”
                                 7
               II. BAIL REFORM ACT RELEASE

     We first review the district court’s decision not to detain
Vasquez-Benitez under the BRA. 18 U.S.C. § 3142(e)(1)
mandates that a judge detain a criminal defendant pending trial
if “no condition or combination of conditions will reasonably
assure the appearance of the person as required and the safety
of any other person and the community.” In common parlance,
the relevant inquiry is whether the defendant is a “flight risk”
or a “danger to the community.” The second district judge
agreed with the original district judge as well as the magistrate
judge that, because Vasquez-Benitez is neither a flight risk nor
a danger to the community, there is no need to detain him
pending trial. The U.S. Attorney claims the second district
judge clearly erred in finding that Vasquez-Benitez is not a
flight risk. We disagree.4

     The four factors a court must consider to determine
whether an individual is a flight risk are (1) “the nature and
circumstances of the offense charged”; (2) “the weight of the
evidence against the person”; (3) “the history and
characteristics of the person,” including “the person’s
character, physical and mental condition, family ties,
employment, financial resources, length of residence in the
community, community ties, past conduct, history relating to
drug or alcohol abuse, criminal history, and record concerning
appearance at court proceedings”; and (4) “the nature and
seriousness of the danger to any person or the community that
would be posed by the person’s release.” 18 U.S.C. § 3142(g).
A determination that an individual is a flight risk must be

    4
       Because the second district judge agreed with his two
predecessors that Vasquez-Benitez need not be detained, we do not
reach Vasquez-Benitez’s argument that the second district judge
lacked the authority to reopen the detention hearing under 18 U.S.C.
§ 3142(f).
                                 8
supported by a preponderance of the evidence. United States v.
Vortis, 785 F.2d 327, 328–29 (D.C. Cir. 1986) (per curiam).

     We agree with both parties that we review for clear error
the district court’s determination that a defendant is not a flight
risk. See United States v. Smith, 79 F.3d 1208, 1209 (D.C. Cir.
1996) (per curiam) (applying clear error standard of review to
district court’s determination that defendant is danger to
community). Regardless what we may have found in the first
instance, we cannot conclude that the second district judge—
and by extension two other judges—clearly erred in finding
that Vasquez-Benitez is not a flight risk. Indeed, Vasquez-
Benitez presents a plausible argument as to why he is not a
flight risk; even assuming the second § 3142(g) factor weighs
against him,5 the other three factors can be understood to favor
him. With respect to the first factor, “the nature and
circumstances of the charged offense,” illegal reentry is a
nonviolent crime. See 8 U.S.C. § 1326(a). In this case, it
appears to carry with it a relatively low penalty, as the U.S.
Attorney offered Vasquez-Benitez a plea deal with a low end
of the sentencing guidelines range of twelve months
imprisonment. With respect to the third factor, “the history and
characteristics of the person,” Vasquez-Benitez makes a host
of relevant arguments. First, he points out that he has a wife,

    5
       The second factor is “the weight of the evidence against the
person.” 8 U.S.C. § 1326 prohibits any alien who has been removed
from the country from entering, attempting to enter or being found
in the United States. No one disputes that Vasquez-Benitez has been
found in the United States after being removed. Nevertheless,
Vasquez-Benitez argues that the “weight of the evidence” against
him is not as strong as it appears because the original removal order
entered against him was procedurally invalid. We need not decide
the validity of that order because we can affirm the district court’s
determination that Vasquez-Benitez is not a flight risk even if this
factor weighs against him.
                                9
two children and a job as a dishwasher in the D.C. area. Second,
he emphasizes that, although he has been accused of multiple
crimes, he has been convicted only of obstruction of justice
nearly fifteen years ago. Third, he pledges that he has left the
18th Street gang. Fourth, he points out that he has
demonstrated his willingness to appear at judicial proceedings
by appearing in his 2016 case. Fifth—and critically—he argues
that he must not flee if he wishes to preserve his opportunity to
obtain withholding of removal in his immigration case. Indeed,
in order to convince an immigration judge that he is credible,
he must abide by the district court’s orders. With respect to the
fourth factor, the danger to the community if he is released,
Vasquez-Benitez emphasizes that he has never been convicted
of a violent crime and that he has left the 18th Street gang.

     Although one may doubt the credibility of Vasquez-
Benitez’s narrative, we are not well-positioned, as appellate
judges, to make credibility determinations. That is a task best
left to the trial court. In this case, three different trial judges
have determined that Vasquez-Benitez is not a flight risk.
Especially considering “the large discretion normally accorded
the trial court in this area,” United States v. Xulam, 84 F.3d 441,
444 (D.C. Cir. 1996) (per curiam), we cannot say that the
district judge whose order is under review clearly erred.

   III. CIVIL DETENTION UNDER THE IMMIGRATION AND
                   NATIONALITY ACT

     Next, we review the district court’s September 26 order
barring ICE from civilly detaining Vasquez-Benitez pending
removal once he was ordered released pursuant to the BRA.
The district court held that, when the U.S. Attorney chooses to
bring criminal charges against a defendant subject to removal
under the INA, “a judicial order under the Bail Reform Act
provides the sole avenue for detaining defendant while the
                                10
charges are pending.” Opinion and Order, District Ct. Docket,
ECF 26 at 1. First, it held that 18 U.S.C. § 3142(d), a “specific
provision for detaining removable aliens charged with illegal
reentry,” supersedes “the INA’s general authority to detain
removable aliens” like Vasquez-Benitez. Opinion and Order at
4 (emphases added). Second, it held, “[r]easoning from first
principles,” that “the government’s invocation of concurrent
and independent detention authority under the INA runs
counter to our Constitution’s text, structure, and history.” Id. at
5.

     Reviewing these legal conclusions de novo, see Eldred v.
Reno, 239 F.3d 372, 374–75 (D.C. Cir. 2001), we disagree.
Vasquez-Benitez wisely makes no attempt to defend the district
court’s constitutional analysis on appeal. The district court
based its analysis on the premise that the Constitution vests in
the judiciary “supervisory authority over the administration of
criminal justice in the federal courts.” Opinion and Order at 6
(quoting Offutt v. United States, 348 U.S. 11, 13 (1954)). We
need not address the validity of that premise because the
Department of Homeland Security’s detention of a criminal
defendant alien for the purpose of removal does not infringe on
the judiciary’s role in criminal proceedings. Detention of a
criminal defendant pending trial pursuant to the BRA and
detention of a removable alien pursuant to the INA are separate
functions that serve separate purposes and are performed by
different authorities. The Supreme Court has affirmed that civil
detention is a constitutionally permissible part of the
Congress’s broad power over immigration and the Executive’s
authority to execute that power. See Demore v. Kim, 538 U.S.
510, 523, 531 (2003). So long as ICE detains the alien for the
permissible purpose of effectuating his removal and not to
“skirt [the] Court’s decision [in] setting the terms of [his]
release under the BRA,” Opinion and Order at 7, ICE’s
detention does not offend separation-of-powers principles
                                      11
simply because a federal court, acting pursuant to the BRA, has
ordered that same alien released pending his criminal trial.
Thus, we see no constitutional conflict of the kind articulated
by the district court.

    Neither do we see a statutory conflict. 18 U.S.C. § 3142(d)
applies only if a “judicial officer determines that . . . [the
defendant] may flee or pose a danger to any other person or the
community.” 18 U.S.C. § 3142(d)(2).6 As already discussed,


    6
        18 U.S.C. § 3142(d) provides:
    If the judicial officer determines[, upon the appearance
    before the judicial officer of a person charged with an
    offense,] that –
         (1)      such person –
                                  *   *    *
               (B) is not a citizen of the United States or lawfully
               admitted for permanent residence, as defined in
               section 101(a)(20) of the Immigration and
               Nationality Act (8 U.S.C. 1101(a)(20)); and
         (2) such person may flee or pose a danger to any
         other person or the community;
    such judicial officer shall order the detention of such
    person, for a period of not more than ten days, excluding
    Saturdays, Sundays, and holidays, and direct the attorney
    for the Government to notify the . . . appropriate official of
    the Immigration and Naturalization Service. If the official
    fails or declines to take such person into custody during
    that period, 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 proceedings. If
    temporary detention is sought under paragraph (1)(B) of
    this subsection, such person has the burden of proving to
                                12
the district court decided that Vasquez-Benitez is not a flight
risk or a danger to the community and therefore § 3142(d)(2)
does not apply. In short, the supposed conflict between the
BRA and the INA simply does not exist in this case.

     Nor do the BRA and the INA conflict more generally.
Individuals are detained under the BRA under authority
separate from that used to detain individuals under the INA. A
criminal defendant is detained under the BRA to ensure his
presence at his criminal trial and the safety of the community.
See 18 U.S.C. § 3142(e)(1). An illegal alien is detained under
the INA to facilitate his removal from the country. See 8 U.S.C.
§ 1231(a)(2). ICE’s authority to facilitate an illegal alien’s
removal from the country does not disappear merely because
the U.S. Marshal cannot detain him under the BRA pending his
criminal trial.

     A further word is warranted. The district court relied on
the principle “‘that a precisely drawn, detailed statute pre-
empts more general remedies,’ even where both ‘literally
appl[y].’” Opinion and Order at 3 (quoting Brown v. Gen.
Servs. Admin., 425 U.S. 820, 834 (1976)). There is, however,
another principle that should have guided its resolution of the
antecedent question whether two statutes “literally apply”—
that is, “courts are not at liberty to pick and choose among
congressional enactments, and when two statutes are capable
of co-existence, it is the duty of the courts, absent a clearly
expressed congressional intention to the contrary, to regard
each as effective.” Morton v. Mancari, 417 U.S. 535, 551
(1974). The Congress has never indicated that the BRA is
intended to displace the INA. See 18 U.S.C. § 3142. Had the

    the court such person’s United States citizenship or lawful
    admission for permanent residence.
18 U.S.C. § 3142(d) (emphasis added).
                               13
district court begun its analysis with Morton instead of Brown,
perhaps it would not have found a conflict where there is none.

     We acknowledge that some district courts over the past
several years have held, like the district court here, that the
BRA and the INA conflict in cases like this one. See United
States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1179 (D. Or.
2012); see also, e.g., United States v. Rangel, 318 F. Supp. 3d
1212, 1217–19 (E.D. Wash. 2018); United States v. Boutin, 269
F. Supp. 3d 24, 26–29 (E.D.N.Y. 2017). But the Sixth Circuit
recently became the first appellate court to weigh in on the
issue and it found “no conflict between the BRA and INA in
the manner which the Trujillo-Alvarez cases . . . ruled.” See
United States v. Veloz-Alonso, 910 F.3d 266, 270 (6th Cir.
2018). It reasoned that “[t]he INA mandates the detention of
certain illegal aliens. Reading the BRA’s permissive use of
release to supersede the INA’s mandatory detention does not
follow logically nor would doing so be congruent with our
canons of statutory interpretation.” Id. We agree with the Sixth
Circuit. That said, our holding is limited—we conclude only
that the district court erred in prohibiting the U.S. Marshal from
returning Vasquez-Benitez to ICE based on the mistaken belief
that “the BRA provides the exclusive means of detaining a
defendant criminally charged with illegal reentry.” Opinion
and Order at 3.

    For the foregoing reasons, we affirm the district court
order releasing Vasquez-Benitez from pre-trial custody under
the Bail Reform Act but vacate its order prohibiting the U.S.
Marshal from delivering Vasquez-Benitez to the custody of
Immigration and Customs Enforcement.

                                                     So ordered.
