Section 236(c) of the Immigration and Nationality Act states that the attorney general "shall take into custody" noncitizens who are inadmissible because of any of the criminal grounds of inadmissibility or who are deportable because of convictions for two or more crimes of moral turpitude, an aggravated felony, a controlled substance offense, a firearms offense, certain miscellaneous crimes, or a single crime of moral turpitude if the individual was sentenced to a term of imprisonment of at least one year.  The individual is to be detained "when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation."  This statute took effect on Oct. 9, 1998, upon the expiration of the two-year Transition Period Custody Rules (TPCR) of the IIRIRA.  Section 303(b)(2) of the IIRIRA directs that section 236(c) "shall apply to individuals released after" the expiration of the TPCR.

The INS initially took the position that section 236(c) required the agency to detain all noncitizens who had convictions for the specified offenses, without regard to when they were convicted.  However, many district courts that have examined the statute have concluded that it does not apply to individuals who were released from criminal custody prior to Oct. 9, 1998 (see "More Courts Rule On Legality of Mandatory Detention," Immigrants’ Rights Update, June 30, 1999, p. 10).

The new guidance states that the INS now considers that IIRIRA section 303(b)(2) limits mandatory detention to individuals "who completed their criminal sentences on or after Oct. 9, 1998."  In other words, the INS now considers the term "released" in section 303(b)(2) to mean "release from the alien’s criminal sentence."  The memo states that individuals who completed their sentences before that date and are now in INS custody are eligible for a custody determination.  The memo directs officers to review detainee cases and to "apply close scrutiny to the dates on which aliens completed their criminal sentences."  Individuals who were convicted but not sentenced to time in prison are to be considered "released" as of the date of the sentence.  Individuals who served time in prison but whose sentences were suspended in part are to be considered "released" as of the date of their release from physical incarceration.  It is not clear what interpretation the INS will give to certain forms of criminal dispositions, and the memo states that "some cases . . . will require consultation with District Counsel for determination of the applicability of this new interpretation (some deferred adjudication cases, diversion sentences, cases of completed or pending habeas corpus, etc.)."  The INS continues to take the position that, as long as individuals were "released" from incarceration on or after Oct. 9, 1998, they are subject to mandatory detention at any time they come into INS custody.

The new guidance took effect on July 13, 1999.