BIA: Mandatory Detention Not Applicable to Respondent Released Prior to TPCR's Expiration, Despite Later Conviction and Sentence of Probation (Matter of West)

IMMIGRATION LAW & POLICY

Arrest and Detention

BIA: MANDATORY DETENTION NOT APPLICABLE TO RESPONDENT RELEASED PRIOR TO TPCR'S EXPIRATION, DESPITE LATER CONVICTION AND SENTENCE OF PROBATION (MATTER OF WEST)
Immigrants' Rights Update, Vol. 14, No. 7, Nov. 28, 2000

The Board of Immigration Appeals has ruled in a precedent decision that the mandatory detention provisions of section 236(c) of the Immigration and Nationality Act do not apply to a respondent who was released from incarceration before the Oct. 9, 1998, expiration of the Transition Period Custody Rules (TPCR), even where the respondent was convicted and sentenced to probation after the TPCR expiration. The decision follows the BIA's prior decision in Matter of Adeniji, Int. Dec. No. 3417 (BIA 1999) in holding that individuals released from incarceration before the expiration of the TPCR are not subject to mandatory detention.

However, the decision further clarifies the statute by finding that mandatory detention applies only to release from physical custody after Oct. 8, 1998. The BIA concluded that while a conviction and sentence of probation occurring after that date may impose a legal restraint on custody, they do not impose a physical restraint. Thus they do not activate the mandatory detention provisions of INA section 236(c).

Matter of West, Int. Dec. No. 3438 (BIA Oct. 26, 2000).