United States District Court, E.D. New York
L. IRIZARRY, Chief United States District Judge
November 3, 2017, this Court issued an Order (the
“November 3 Order”) directing the Government to
release Defendant Saba Rosario Ventura pursuant to bond
conditions previously set by Magistrate Judge Victor V.
Pohorelsky or to dismiss the instant indictment with
prejudice, by 3:00 p.m. on November 9, 2017.
See Dkt. Entry No. 28. Before the Court is the
Government's request for an indefinite stay of the
November 3 Order while the Government decides whether to
appeal the November 3 Order to the U.S. Court of Appeals for
the Second Circuit. See Gov't Letter Requesting
Stay, Dkt. Entry No. 29 (“Gov't Letter”). For
the reasons that follow, the Government's request is
Government requests a stay of the November 3 Order “to
preserve the pending prosecution while the government
consults with the Office of the Solicitor General about the
possibility of appealing the Court's Order to the U.S.
Court of Appeals for the Second Circuit.” See
Gov't Letter at 1. The request does not specify a time
frame for the proposed stay, saying only: “The
government will advise the Court immediately when a decision
is made about pursuing such an appeal.” Id.
Defendant opposes the request on three grounds: the indefinite
nature of the proposed stay, the amount of time that the
Government had available to consult with the Solicitor
General's Office before the Court's November 3 Order
was issued, and the negative impact of a stay on
Defendant's rights. See Def.'s Letter in
Opp'n at 1-2 (“Def.'s Letter”), Dkt.
Entry No. 30.
four factors courts consider when determining whether to
grant a stay are: (1) whether the stay applicant has made a
strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent
a stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Strougo v.
Barclays PLC, 194 F.Supp.3d 230, 233 (S.D.N.Y. 2016)
(quoting U.S. S.E.C. v. Citigroup Glob. Markets
Inc., 673 F.3d 158, 162 (2d Cir. 2012) (internal
quotations omitted). Furthermore, “a stay is an
intrusion into the ordinary processes of administration and
judicial review, ” and, therefore, “it is not a
matter of right; rather, it is an exercise of judicial
discretion.” Id. (quoting Nken v.
Holder, 556 U.S. 418, 427, 433 (2009)) (internal
quotations and brackets omitted). None of these factors are
addressed in the Government's Letter. The Government does
not discuss at all whether it has a likelihood of succeeding
on the merits, nor does it specify what irreparable injury it
would suffer in the absence of a stay.
Government's sole basis for the necessity of a stay is to
“preserve the pending prosecution” against
Defendant. See Gov't Letter at 1. This
contention is completely meritless. The Government was
presented with two options: it could continue with the
criminal prosecution against Defendant, and comply with the
Bail Reform Act, 18 U.S.C. § 3141, et seq., by
releasing Defendant from immigration custody, or it could
continue to detain Defendant in the custody of U.S.
Immigration and Customs Enforcement (“ICE”), in
which case it must dismiss the indictment, with prejudice.
See November 3 Order at 6-7. Both options remain
available to the Government.
entirely within the control of the Government whether to
preserve and proceed with the prosecution of Defendant. All
it need do is comply with statutory and constitutional
requirements. Such compliance does not foreclose the
possibility that a removal hearing may be held once the
prosecution of the criminal matter has concluded. Recently,
the Government made this choice in a similar matter. In
United States v. Galitsa, faced with the same choice
it must make here, the Government proceeded with the criminal
prosecution and released the defendant from ICE custody.
See generally, United States v. Galitsa,
No. 17-CR-324 (VEC) (S.D.N.Y.). In Galitsa, the
Government neither requested a stay nor appealed the
court's decision. The Government has not explained why
the instant case is different from Galitsa. Indeed,
as the Court observed in the November 3 Order, at least one
U.S. Attorney's Office has conceded that ICE may not take
custody of a defendant once release has been ordered in a
criminal case. See Nov. 3 Order at 5, citing
United States v. Hernandez-Bourdier, No.
16-CR-222-2, 2017 WL 56033, at *10 (W.D. Pa. Jan. 5, 2017).
Moreover, the Government has other relief available to it.
Should it choose not to release Defendant from ICE custody,
forcing dismissal of the indictment, the Government could
appeal that dismissal to the Court of Appeals. In no scenario
is there irreparable injury to the Government.
Government also states that it requires additional time for
its consultation with the Office of the Solicitor General,
but does not explain why additional time is required.
See Gov't Letter at 1. As Defendant points out,
on August 22, 2017, after detailed discussion with the
parties, the Court set a briefing schedule for
Defendant's Trujillo motion, the subject of the
November 3 Order. See Def.'s Letter at 2. Over
two months have elapsed since that time, during which the
Government could have consulted with the Solicitor
General's Office so as to be prepared when this Court
issued its decision. Significantly, the Government was aware
that the other district courts that have considered the
Trujillo issue in a similar context, including the
Southern District of New York, have reached the same
conclusion as this Court did. The Court finds no good cause
for the Government's delay in deciding what course of
action it would take in the event this Court ruled as it did.
The Court also finds that the Government has failed to make a
“strong showing” of likely success on the merits.
concerning is the irreparable injury to Defendant that would
result from granting a stay. While any stay remains in place,
the status quo would be preserved and Defendant would remain
in custody, in violation of his due process rights and his
rights under the Bail Reform Act. Any loss of liberty is a
“substantial injury” that weighs against the
issuance of a stay.
the public has a strong interest in the enforcement of all
individuals' constitutional and statutory rights. In
particular, the public has the right to expect that the
Government will abide by its statutory obligations, in this
case pursuant to the Bail Reform Act, and court rulings, and
not seek an end-run around these obligations when it
disagrees with them.
Government's request for a stay is denied. The Government
must comply with the November 3 Order by the deadline