United States District Court, W.D. Texas, Austin Division
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
the Court is the Motion for Continuance (Dkt. No. 334), filed
by the Defendant, requesting that the Court reset the hearing
on the Government’s Sealed Motion seeking to reopen the
detention hearing in this case. The Court set the motion for
a hearing on October 23, 2019. In the motion for continuance,
the Defendant notes that the “Government and Defendant
agree that a continuance is necessary to allow time for
Defendant to attend [the] hearing.” Dkt. No. 334 at 1.
The reason that Ms. Ortiz-Cabrera needs "time to attend
the hearing" is that, although the Court entered
conditions of release and Ms. Cabrera was released by the
U.S. Marshal, upon her release, Immigration and Customs
Enforcement agents immediately took her into custody to
initiate deportation proceedings and she remains in I.C.E.
yesterday the Government filed an Application for Writ of
Habeas Corpus Ad Prosequendum (Dkt. No. 335), in which it
requests that the Court issue a writ “addressed to the
Warden, ICE/PEARSALL, commanding him to surrender
[Ortiz-Cabrera] into the custody of the United States Marshal
. . . and directing said Marshal to bring said Defendant to
Austin, Texas . . . for the purpose of said proceeding. . .
.” Dkt. No. 335 at 1. There are several reasons why the
Court cannot approve this Application. The primary reason is
that the Court lacks jurisdiction to interfere with
immigration proceedings, as Congress has vested that power
solely in the immigration courts, and, in the event of an
appeal, in the federal circuit courts of appeal. 8 U.S.C.
§ 1252(b)(9) & 1252(g); see also Velasquez v.
Nielsen, 754 Fed. App’x 256, 261 (5th Cir. 2018);
Santa Maria v. McAleenan, 2019 WL 2120725 *2 (S.D.
Tex. May 15, 2019). Second, the Court has already considered
the issue of whether Ms. Ortiz-Cabrera should be in the
custody of the U.S. Marshal, and found that she should not.
There is no other basis on which the Court could properly
order the Marshal to take Ms. Ortiz-Cabrera into custody at
this time, as there is no allegation that she has violated
the conditions of her release or is otherwise guilty of a
contempt of court. In fact, it appears unlikely there is a
basis for any entity other than I.C.E. to maintain
custody of Ms. Ortiz-Cabrera. The only pending criminal
charge against her is the present case, and she has been
released on conditions in that case. Other than her lack of
legal status in the United States, it is hard to imagine any
other ground on which law enforcement or a government agency
has the authority to arrest her. Thus, even if the Court had
the power to order I.C.E. to release Ms. Ortiz-Cabrera, it
would be improper for the Court to order any other entity to
take her into its custody, as there is no legal basis to
is, of course, a very simple solution to this problem. If the
Department of Justice and D.E.A. would like to prosecute Ms.
Ortiz-Cabrera, then they need to coordinate that prosecution
with I.C.E. But if I.C.E. refuses to cooperate to permit that
prosecution, the Department of Justice is wrong to ask the
Court to intervene. If Executive Branch agencies have a
conflict prioritizing the criminal and immigration
proceedings involving Ms. Ortiz-Cabrera, it is not the
Judicial Branch’s place to resolve that conflict by
issuing a writ of habeas corpus, or any other process.
Rather, it is the Executive Branch’s problem to solve.
There is a single executive, and if need be, it is up to the
Executive to resolve conflicts between Executive Branch
agencies. For the Judicial Branch to step in to resolve such
conflicts would pose serious separation of powers concerns.
issues presented by the DOJ’s request for the Court to
order I.C.E. to release Ms. Ortiz-Cabrera are the very same
issues that have caused other courts faced with these same
circumstances to ultimately determine they had no choice but
to dismiss the criminal charges against such defendants.
See, e.g., United States v. Boutin, 269 F. Supp. 3d
24 (E.D.N.Y. 2017); United States v.
Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1180-81 (D. Or.
2012). It is untenable for a court to meet its obligations
under the Speedy Trial Act, not to mention the Constitution,
if it has no control over ensuring the presence in court of
the defendants charged with crimes in the cases before it. As
the Executive Branch has chosen to take custody of Ms.
Ortiz-Cabrera, the Court no longer has the ability to ensure
her presence in court as needed in this case, and by doing so
the Executive Branch is interfering with its own criminal
the Motion for Continuance (Dkt. No. 334) is
GRANTED, and the hearing on the
Government’s Sealed motion to reopen the detention
hearing is RESET to October 28, 2019, at
2:30 p.m. The Government’s Application for Writ of
Habeas Corpus Ad Prosequendum (Dkt. No. 335) is
DENIED, and it shall be the duty of the
government to ensure Ms. Ortiz-Cabrera’s presence at
the hearing. If she is not present, the undersigned will
report the ...