## Facts

- Kani Xulam (also known by other names) lived in Washington, D.C. for over three years and worked in the human rights community.
- The government charged him with making a false statement in a 1988 passport application by obtaining a U.S. passport under a false name after entering on a temporary student visa.
- Xulam had no criminal record aside from the charged offense.
- The government sought pretrial detention solely on the ground that Xulam posed a risk of flight and conceded he posed no danger to the community.
- A magistrate judge and the district court ordered detention pending trial, finding him detainable solely as a flight risk.
- Immigration authorities lodged a detainer and provided notice of an investigation that could result in deportation if he were released.
- Xulam appealed the detention order and sought release pending appeal.

## Issues

1. Whether the government proved by a preponderance of the evidence under 18 U.S.C. § 3142 that no condition or combination of conditions would reasonably assure Xulam’s appearance.
2. Whether an immigration detainer and the possibility of deportation may be treated, without more, as evidence of a defendant’s voluntary risk of flight justifying pretrial detention.

## Decision

- The court revoked the district court’s detention order.
- The court held the government did not meet its burden to justify detention for flight risk under § 3142.
- The court directed that Xulam be released subject to conditions set under the Bail Reform Act.
- Judge Ginsburg dissented.

## Legal Principles

- The Bail Reform Act requires pretrial release unless the government shows that no condition or combination of conditions will reasonably assure the defendant’s appearance.
- When detention is sought based on risk of flight, the government must prove its claim by a preponderance of the evidence, directed to the ultimate issue that no available conditions can reasonably assure appearance.
- “Risk of flight” concerns likely voluntary nonappearance; the prospect of involuntary removal by the government (through immigration enforcement) is not, by itself, proof of voluntary flight.
- Courts must consider less restrictive release conditions (including combinations of conditions) before ordering detention.

## Conclusion

The D.C. Circuit concluded that the government failed to show that detention was necessary to reasonably assure Xulam’s appearance, and it rejected treating an immigration detainer and possible deportation, standing alone, as sufficient evidence of voluntary flight risk under the Bail Reform Act.


United States v. Xulam, 84 F.3d 441 (D.C. Cir. 1996)