Thanks to Ingrid Eagly and Cecilia Wong, who have had success securing release for federal noncitizen defendants under the Federal Bail Reform Act, for this analysis:



The United States Attorney has control over whether a federal criminal defendant gets physically removed from the United States. Pursuant to 8 C.F.R. 215.3(g). "[A]ny alien who is a witness in, or a party to, any criminal case pending in any criminal court proceeding may be permitted to depart from the United States with the consent of the appropriate prosecuting authority, unless such alien is otherwise prohibited from departing under the provisions of this part." 8 C.F.R. 215.3(g); 22 C.F.R. 46.3(g) (same). After receiving instructions from the United States Attorney's Office not to remove a defendant, ICE should issue a departure control order. If a federal judicial officer is worried that the defendant would not be available for trial because ICE would remove the defendant from the United States, defense counsel can remind the court that the prosecutor has the power to keep the defendant in the United States.



The federal bail statute contains specific provisions that speak to the relationship between custody in the criminal case and custody in the immigration case. 18 U.S.C.A. 3142(d) appears to limit when a federal judicial officer may permit a defendant to be released to ICE custody. The statute provides that the federal judicial officer may give 10 days for ICE to order the detention of a defendant and to take the defendant into custody. If ICE fails 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 proceedings." See also U.S. v. Adomako, 150 F. Supp. 2d 1302 (M.D. Fla. 2001).



A federal district court in Florida has taken the view that its decision to release a criminal defendant awaiting trial under 18 U.S.C.A. 3142(d) supersedes the INS' authority to take a criminal defendant into custody. See also U.S. v. Adomako, 150 F. Supp. 2d 1302 (M.D. Fla. 2001).Under this decision, the ICE's authority to detain a noncitizen pending federal criminal charges is subject to the requirements of the statutes governing pre-trial release of a federal defendant. See 18 U.S.C.A. 3141 to 3142.