USA v. IBARRA

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA, 	)
)
v. 	) 	No. 2:24-mj-00385-KFW-1
)
JULIO BENITO MORAN IBARRA, 	)
)
Defendant 	)
ORDER ON MOTION FOR PRETRIAL DETENTION
In this criminal matter, the Defendant is charged by complaint with one count
of unlawful reentry of a removed alien in violation of 8 U.S.C. § 1326(a), (b)(2).
See Complaint (ECF No. 1). 	The Government argues that this case is eligible for
pretrial detention under the Bail Reform Act because the Defendant poses a serious
risk of flight under 18 U.S.C. § 3142(f)(2)(A). 	The Defendant contends that the
Government has not proven that he poses a serious risk of flight, particularly where
it relies on the possibility of his involuntary removal by Immigration and Customs
Enforcement (ICE). After a detention hearing on December 13, 2024, and subsequent
supplemental briefing and argument, I issued an order from the bench on January 3,
2025, finding that although the Defendant is eligible for pretrial detention based on
his serious risk of flight, the Government failed to prove that there are no conditions
of release that would reasonably assure his appearance. 	See 18 U.S.C. § 3142(g).
I am issuing this written order to further memorialize my findings and analysis.
I. Background
The Defendant, a citizen of Ecuador, was apprehended by the United States
Border Patrol in Texas in August 2023. See Affidavit of Derek Wilcox (ECF No. 1-1)
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¶¶ 5, 7. 	ICE then determined that the Defendant was inadmissible to the United
States and issued a final order for his removal, which occurred in September 2023.
See id. ¶ 7; Gov’t Exhibit 5. Nevertheless, the Defendant later admitted to reentering
this country without authorization in November 2023. See Wilcox Affidavit ¶ 6. After
his arrest in this matter in early December 2024, ICE reinstated the prior removal
order and issued an immigration detainer stating that it would assume custody of the
Defendant if he is released. See Gov’t Exhibit 6; Def.’s Exhibit 1 (ECF No. 23-1).
In his interview with Pretrial Services, the Defendant indicated that he was
residing in Biddeford, Maine with his father and two of his siblings prior to his arrest,
and 	that 	his 	mother, 	partner, 	and 	toddler 	child 	still 	live 	in 	Ecuador.
See Pretrial Services Report (ECF No. 14) at 2. 	The Defendant is seasonally
employed as a local carpenter and roofer but most recently worked at a grocery store
warehouse in Westbrook, Maine making $600 per week, and he sends approximately
$1,000 per month back home to his family in Ecuador. See id.
The 	Defendant’s 	initial 	appearance 	in 	this 	matter 	took 	place 	on
December 9, 2025, 	at 	which 	time 	the 	Government 	moved 	for 	detention 	and 	I
temporarily 	detained 	the 	Defendant. 	A 	detention 	hearing 	was 	held 	on
December 13, 2024, during which the Government argued that the Defendant was
eligible for pretrial detention based on his serious risk of flight. 	In response, the
Defendant argued that the Government was not entitled to a detention hearing
because it had not proven, by a preponderance of the evidence, that the Defendant is
a serious flight risk, and that the ICE detainer and the prospect of the Defendant’s
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removal are non-volitional and therefore could not serve as a basis for his detention.
I continued the matter once again and ordered the parties to brief whether the
Government had proven eligibility under section 3142(f)(2)(A) and whether the
Defendant’s ICE detainer status could be considered in the section 3142(g) analysis.
The Defendant remained detained pursuant to my order of temporary detention.
On December 20, 2024, I held a final hearing on this matter at which the
parties offered oral argument central to those two issues. 	I took the matter under
consideration until January 3, 2025, when I denied the Government’s motion from
the bench and explained that after considering the robust argument by counsel at
hearing and on brief, I found that the Government had proven, by a preponderance
of the evidence, that the Defendant is a serious flight risk under section 3142(f)(2)(A)
but that, after weighing the section 3142(g) factors, detention is not warranted
because there are conditions of release that can reasonably assure his appearance.
II. Legal Standard
“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 provides one such exception by way of a two-step process through
which the government may seek pretrial detention. See 18 U.S.C. § 3142(f)-(g).
First, the Government must prove that the case is eligible for pretrial detention
because it concerns one of five categories of serious crimes, a serious risk that the
defendant will flee, or a serious risk that the defendant will obstruct justice. See id.
§ 3142(f). Here, the Government bases its motion on the Defendant’s serious risk of
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flight, see id. § 3142(f)(2)(A), which it must prove by a preponderance of the evidence,
see United States v. Reynolds, 609 F. Supp. 2d 108, 110 (D. Me. 2009).
Second, if the Government establishes eligibility, it must then prove that there
is “no condition or combination of conditions” that “will reasonably assure the
appearance of the [defendant] as required and the safety of any other person and the
community . . . .” 18 U.S.C. § 3142(e). The Government must prove that no conditions
can assure the defendant’s appearance by a preponderance of the evidence, while its
burden with respect to no conditions assuring safety is clear and convincing evidence.
See 	United 	States 	v. 	Lopez, 	No. 	23-CR-10269-AK, 	2023 	WL 	8039318, 	at 	*2
(D. Mass. Nov. 20, 2023). In this case, the Government argues only the former.
Although Congress did not articulate factors that the court must consider in
step one to determine whether a serious risk of flight exists, it did expressly designate
four factors that the court is required to examine in every step two detention analysis:
(1) “the nature and circumstances of the offense charged,” (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 to any person or the
community that would be posed by the [defendant’s] release.” 18 U.S.C. § 3142(g).
III. Consideration of the ICE Detainer
I 	must 	first 	address 	whether 	and 	to 	what 	extent 	I 	may 	consider 	the
ICE detainer under the Bail Reform Act as part of my pretrial detention analysis.
Setting aside minor differences, the parties largely agree that an ICE detainer
or removal order cannot, by itself, justify pretrial detention. This is because holding
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that a defendant can be detained pretrial based solely on the chance that ICE will
involuntarily detain and deport them if they are released would create a categorical
presumption of detention for such defendants, which contravenes the Bail Reform
Act’s requirement that pretrial detention decisions must involve individualized
assessments. See United States v. Santos-Flores, 794 F.3d 1088, 1091 (9th Cir. 2015)
(“[T]he government may not use its discretionary power of removal to trump a
defendant’s right to an individualized determination under the Bail Reform Act.”);
United States v. Ailon-Ailon, 875 F.3d 1334, 1338 (10th Cir. 2017) (“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.” (cleaned up)).
Moreover, the fact that ICE may involuntarily remove a defendant does not
establish their eligibility for pretrial detention as a serious flight risk under section
3142(f)(2)(A). 	See Ailon-Ailon, 875 F.3d at 1337 (concluding that pretrial detention
eligibility may not be based on the risk of a defendant’s involuntary removal).
Nevertheless, considering a defendant’s immigration status—including the
prospect of ICE detention and removal—and how that status may affect their risk of
flight and nonappearance is consistent with the individualized assessment required
by the Bail Reform Act. See Gov’t Memorandum at 11. It would defy common sense
to proceed as though the prospect of removal has no effect on an alien defendant’s
motivations. 	See Lopez, 2023 WL 8039318, at *4 n.3 (“The court may, of course,
consider a defendant’s immigration status in determining whether the defendant
may flee. 	For defendants who face a virtual certainty of deportation following a
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substantial prison sentence, there is an obvious motivation to flee to their countries
of origin rather than wait to serve a sentence in the United States and then be
deported. 	Such facts speak to the likelihood that a defendant will flee intentionally
and to the conditions that might mitigate such a risk.”).
IV. Step One: Detention Eligibility
To establish that a defendant poses a “serious risk of flight” and is therefore
eligible for pretrial detention, see 18 U.S.C. § 3142(f)(2)(A), the Government must
prove there is a risk of flight beyond what might typically exist in a federal felony
case. 	See, e.g., United States v. Figueroa-Alvarez, 681 F. Supp. 3d 1131, 1138
(D. Idaho 2023) (defining “risk of serious flight” under section 3142(f)(2)(A) as “a great
risk—beyond average—that the defendant will intentionally or actively move within
or outside the jurisdiction to avoid court proceedings or supervision”).
I conclude that the Government has proven by a preponderance of the evidence
that the Defendant is eligible for detention under 18 U.S.C. § 3142(f)(2)(A) because
he poses a serious risk of flight. The Defendant’s risk of flight is greater than average
for several reasons.
First, the Defendant has no legal status in the United States and has resided
in Biddeford for only around six months.1 	Cf. Figueroa-Alvarez, 681 F. Supp. 3d
at 1142-43 (explaining that the longer an alien defendant resides in the United
States, the less likely he is to flee). 	Second, although he purportedly lives with his
father and two siblings in Biddeford, the Defendant’s ties to Ecuador remain strong
1 It is unclear how long the Defendant was in the United States prior to his September 2023 removal.
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because his mother, partner, and toddler child still reside there. 	See id. at 1143
(“[W]here the balance of an alien defendant’s immediate family resides in their home
country . . . flight is more likely.”). Third, the Defendant’s primary reason for being
in the United States was to earn money to send to his family in Ecuador, which, until
recently, he accomplished without proper work authorization, and ICE’s involvement
now 	frustrates 	that 	purpose 	by 	chilling 	any 	illegitimate 	sources 	of 	income.
See id. at 1143-44. Fourth, the Defendant has demonstrated an ability to travel back
and forth between the United States and Ecuador in the past couple of years.
See id. at 1142 (“Frequent and recent foreign travel provides concrete evidence of [a
defendant’s] ability to flee.”). 	And finally, the evidence against the Defendant is
strong—he signed a statement admitting he reentered the United States after
removal and without authorization. 	See United States v. Neves, 11 F. App’x 6, 8
(1st Cir. 2001) (concluding that an alien defendant charged with unlawful reentry
had “a strong incentive to flee . . . to avoid the near-certainty of a prison sentence
followed by deportation”).
V. Step Two: Conditions of Release
I now turn to section 3142(g) to evaluate whether any conditions of release can
reasonably assure the Defendant’s appearance in these proceedings as required.
The Government argues that no conditions of release can reasonably assure
the Defendant’s appearance given his minimal ties to this jurisdiction and the United
States, his strong incentive to flee, and his demonstrated ability to move furtively
within the United States and across national borders. See Gov’t Memorandum at 14.
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The Government also reasons that an employment condition could not be imposed
because the Defendant is unauthorized to work, an unsecured bond would be
ineffective considering he has no assets, he could simply cut off a location monitoring
device, and any conditions that rely on his good faith are nonstarters given the
disrespect for court orders he demonstrated by his illegal reentry.2 See id. at 14-15.
In response, the Defendant emphasizes his local family support and stable
housing, and counters that the conditions proposed by United States Probation can
reasonably assure his appearance as required. See Opposition at 6-8.
For several reasons, I conclude that the Government has not met its burden of
proving, by a preponderance of the evidence, that no conditions can mitigate the
Defendant’s serious risk of flight enough to reasonably assure his appearance.
The first factor, the nature and circumstances of the offense, favors release.
See 18 U.S.C. § 3142(g)(1). 	Although the Government contends that the illegal
reentry charge demonstrates the Defendant’s lack of respect for court orders and
federal law, as evidenced by his near immediate return to the United States after
removal, I agree with the Defendant that it actually speaks more strongly of his desire
to 	remain 	in 	this 	country. 	See 	Gov’t 	Memorandum 	at 	13; 	Opposition 	at 	6;
2 The First Circuit has recognized electronic monitoring as an effective means of both deterring flight
and enabling its early detection. See United States v. O’Brien, 895 F.2d 810, 815-16 (1st Cir. 1990);
Neves, 11 F. App’x at 9. Although the Defendant’s lack of income in part motivates him to flee, it also
hinders his ability to flee quickly or far enough that early electronic detection would lose its
effectiveness. Cf. Neves, 11 F. App’x at 9 (concluding that electronic monitoring may be insufficient to
overcome an alien defendant’s strong incentive to flee where the defendant had proven access to
financial resources). I am similarly unpersuaded that the Defendant’s illegal reentry makes him too
untrustworthy for any “good faith” conditions to be effective. 	See generally Figueroa-Alvarez,
681 F. Supp. 3d at 1139-40 (debunking the misconception that defendants who voluntarily chose to
illegally enter or reenter this country and stay are “more likely than non-alien defendants to leave this
country or the jurisdiction to avoid prosecution—just because they came here from another country”).
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see also Figueroa-Alvarez, 681 F. Supp. 3d at 1144 (observing that “the very act of
illegally reentering the United States—knowing that reentry subjects the alien
defendant 	to 	a 	potential 	prison 	term 	and 	certain 	deportation
thereafter—demonstrates a firm resolve to reside in this country”).
The 	second 	factor—the 	weight 	of 	the 	evidence—weighs 	neutrally.
See 18 U.S.C. § 3142(g)(2). The evidence in this case is quite strong: the Government
indicates that the Defendant was arrested in the United States in December 2024
and that he signed a sworn affidavit admitting to having reentered the country
without authorization in November 2023 despite his September 2023 removal.
See Gov’t Memorandum at 13; Affidavit of Derek Wilcox ¶¶ 6-7. 	Importantly,
however, the Defendant’s sentencing guideline range is only zero to six months given
his lack of criminal history, which reduces the likelihood that he would be overcome
by his motivation to flee. 	Cf. Lopez, 2023 WL 8039318, at *4 n.3 (explaining that
defendants who face “a virtual certainty of deportation following a substantial prison
sentence” have an “obvious motivation to flee” (emphasis added)).
The 	third 	factor—the 	Defendant’s 	history 	and 	characteristics—supports
release. 	See 18 U.S.C. § 3142(g)(3). 	While the Defendant’s ties to this jurisdiction
and the United States are not especially strong, he does enjoy stable housing and
family support in Biddeford, which offsets the impact of his current inability to legally
generate income. 	Moreover, he has no history of nonappearance, and the length of
his pretrial release will likely be short given the strength of the Government’s
evidence and the relatively straightforward nature of the pending charge.
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The final factor—“the nature and seriousness of the danger to any person or
the 	community”—does 	not 	militate 	against 	release 	because 	no 	evidence 	was
proffered, and the Government does not argue, that the Defendant poses a danger to
any person or the community. See id. § 3142(g)(4).
VI. Conclusion
Because I conclude that there are conditions of release that will reasonably
assure his appearance, I ORDER the Defendant released in accordance with my
contemporaneous order setting conditions of release (ECF No. 28).
NOTICE
In accordance with Federal Rule of Criminal Procedure 59(a), a party
may serve and file an objection to this order within fourteen (14) days after
being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to review by the district court and to any further appeal of this order.
Dated: January 3, 2025
/s/ Karen Frink Wolf
United States Magistrate Judge
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