BIA: Respondent Subject to Mandatory Detention Even Where INS Did Not Take Custody at Time of Release from Criminal Incarceration (Matter Of Rojas)

IMMIGRATION LAW & POLICY

Arrest and Detention

BIA: RESPONDENT SUBJECT TO MANDATORY DETENTION EVEN WHERE INS DID NOT TAKE CUSTODY AT TIME OF RELEASE FROM CRIMINAL INCARCERATION (MATTER OF ROJAS)
Immigrants' Rights Update, Vol. 15, No. 4, June 29, 2001

In a sharply divided en banc decision, the Board of Immigration Appeals has ruled that the mandatory detention provision of section 236(c) of the Immigration and Nationality Act applies even where the Immigration and Naturalization Service did not take the respondent into custody at the time that he was released from criminal incarceration. In order for mandatory detention to apply, an immigrant must have been released from incarceration after Oct. 8, 1998, since individuals released on or before that date are subject to the Transitional Period Custody Rules (TPCR) rather than section 236(c) (see, e.g., "BIA: Mandatory Detention Not Applicable to Respondent Released Prior to TPCR's Expiration, Despite Later Conviction and Sentence of Probation," Immigrants' Rights Update, Nov. 28, 2000, p. 4). However, under this decision, as long as the release took place after that date, mandatory detention applies whenever the INS takes custody of the respondent.

In this case, the respondent was deportable both for having a controlled substance conviction and for having an aggravated felony conviction. He was released from incarceration after Oct. 8, 1998, but not immediately taken into INS custody. Section 236(c)(1) of the INA requires that the attorney general take an alien into custody, if he or she is inadmissible or deportable because of specified criminal offenses, "when the alien is released." Section 236(c)(2) strictly limits the situation in which the attorney general may release "an alien described in paragraph (1)." In Matter of Adeniji, Int. Dec. 3417 (BIA 1999), the BIA held that section 236(c) applies only if the respondent was released from criminal custody after Oct. 8, 1998. However, the BIA in that opinion expressly left open the question of whether section 236(c) applies to an alien who was released after the expiration of the TPCR, but who was not promptly taken into INS custody. In this case the BIA addressed that issue.

The majority opinion, written by BIA Member Filppu, finds that the language of section 236(c) is ambiguous as to whether the mandatory detention requirement of paragraph 2 is limited by the phrase "when the alien is released" in paragraph 1. According to the majority, paragraph 2 could be read as prohibiting release either for anyone encompassed within paragraph 1's four categories of aliens with specified criminal convictions or for anyone with the specified convictions who also was taken into custody at the time of release from incarceration. The majority concludes that the first interpretation is correct, and as long as an immigrant has one of the specified criminal convictions, he or she is subject to mandatory detention regardless of when the INS takes him or her into custody.

In reaching this conclusion, the majority relies on several arguments. It finds that under a "natural reading" of the statute, the "when released" clause is not meant as a description of which aliens are subject to mandatory detention but rather is a directive to the INS to take such aliens into custody at the time they are released. The majority also finds that this reading of the statute best comports with the overall context of the INA, which does not generally distinguish between aliens on the basis of when they are taken into custody by the INS. In addition, the majority finds that this interpretation is most consistent with the statutory scheme of mandatory detention for aggravated felons under the pre-1996 INA. Finally, the majority also suggests that the alternative interpretation presents practical problems, in determining whether a lapse of one day, or one hour, or even one minute between release from criminal incarceration and the imposition of INS custody matters as to whether mandatory detention applies.

BIA Member Moscato wrote a concurring and dissenting opinion, joined by Member Villageliu. They argue that the "when released" clause simply modifies the list of specified criminal convictions. In other words, the alien must be considered convicted for one of the specified crimes at the time of his or her release, and the alien must in fact be released from criminal incarceration. Thus, they read the statute as mandating the attorney general to take aliens into custody who have the specified criminal convictions and who have been released from incarceration. But both the duty of the INS to take custody of the alien and the mandatory detention provision of paragraph 2 do not depend upon whether the alien is taken into custody at the time of release.

BIA Member Rosenberg wrote a dissent, joined by Members Schmidt, Guendelsberger, Miller, Brennan, Espenoza, and Osuna. They contend that the statute is unambiguous and that "when released" is an integral part of the definition of which aliens are encompassed within the mandatory detention provision. They would remand the case for a bond hearing to determine whether the respondent should be released from custody.

Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001).