JOSEPH

Interim Decision #3398

In re Samuel JOSEPH, Respondent

File A90 562 326 - York

Decided May 28, 1999

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) For purposes of determining the custody conditions of a lawful permanent resident under

section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226 (Supp. II 1996), and 8

C.F.R. § 3.19(h)(2)(ii) (1999), a lawful permanent resident will not be considered “properly

included” in a mandatory detention category when an Immigration Judge or the Board of

Immigration Appeals finds, on the basis of the bond record as a whole, that it is substantial-

ly unlikely that the Immigration and Naturalization Service will prevail on a charge of remov-

ability specified in section 236(c)(1) of the Act.

(2) Although a conviction document may provide the Service with sufficient reason to believe

that an alien is removable under one of the mandatory detention grounds for purposes of charg-

ing the alien and making an initial custody determination, neither the Immigration Judge nor the

Board is bound by the Service’s decisions in that regard when determining whether an alien is

properly included within one of the regulatory provisions that would deprive the Immigration

Judge and the Board of jurisdiction to redetermine the custody conditions imposed on the alien

by the Service. Matter of Joseph, 22 I&N Dec. 3387 (BIA 1999), clarified.

(3) When an Immigration Judge’s removal decision precedes the determination, pursuant to 8

C.F.R. § 3.19(h)(2)(ii), whether an alien is “properly included” in a mandatory detention cat-

egory, the removal decision may properly form the basis for that determination.

(4) An automatic stay of an Immigration Judge’s release order that has been invoked by the

Service pursuant to 8 C.F.R. § 3.19(i)(2) is extinguished by the Board’s decision in the

Service’s bond appeal from that release order.

Sandra L. Greene, Esquire, Philadelphia, Pennsylvania, for respondent

Jeffrey T. Bubier, Assistant District Counsel, for the Immigration and Naturalization Service

Before: Board En Banc: DUNNE, Vice Chairman; HEILMAN, HOLMES, HURWITZ,

FILPPU, COLE, MATHON, JONES, GRANT, SCIALABBA, and MOSCATO,

Board Members. Concurring and Dissenting Opinion: SCHMIDT, Chairman;

joined by VACCA, VILLAGELIU, ROSENBERG, and GUENDELSBERGER,

Board Members.

FILPPU, Board Member:

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Interim Decision #3398

On May 19, 1999, the Board issued an order which dismissed the

Immigration and Naturalization Service’s appeal from the Immigration

Judge’s January 20 and 22, 1999, bond orders releasing the respondent on

his own recognizance. Our order informed the parties that this decision

explaining the reasons for the order would be forthcoming.

I. THE ISSUES AND SUMMARY

Our jurisdiction in this timely Service appeal is pursuant to 8 C.F.R. §

3.1(b)(7) (1999). See also Matter of Joseph, 22 I&N Dec. 3387, at 13-14

(BIA 1999); 8 C.F.R. §§ 3.19(h)(2)(ii), 236.1(c)(11), (d)(3) (1999). Today,

we explain the import of our ruling in Matter of Joseph, supra, in light of

the Service’s arguments in this bond appeal. We also address the question

of when an Immigration Judge will have jurisdiction to set bond for a law-

ful permanent resident who has been charged by the Service with a ground

of removability that would otherwise require the alien’s mandatory deten-

tion pending an administratively final order of removal.

As explained below, the Immigration Judge may make a determination on

whether a lawful permanent resident “is not properly included” in a mandato-

ry detention category, in accordance with 8 C.F.R. § 3.19(h)(2)(ii), either

before or after the conclusion of the underlying removal case. If this threshold

bond decision is made after the Immigration Judge’s resolution of the removal

case, the Immigration Judge may rely on that underlying merits determination.

If the Immigration Judge addresses whether the permanent resident is

properly included in a mandatory detention category prior to completion of

the case in chief, the Immigration Judge must have very substantial grounds

to override the Service’s decision to charge the alien with a ground that sub-

jects the alien to detention. Thus, in this context, a lawful permanent resi-

dent will not be considered properly included in a mandatory detention cat-

egory only when an Immigration Judge is convinced that the Service is sub-

stantially unlikely to establish, at the merits hearing, the charge or charges

that subject the alien to mandatory detention.

In either situation, the Immigration Judge’s bond ruling as to whether

the alien is “properly included” in a mandatory detention category is sub-

ject to the Service’s invocation of the “automatic stay” discussed in our

prior ruling in this case.

II. FACTS AND PROCEDURAL HISTORY

The respondent, a native and citizen of Haiti, was admitted as a lawful

permanent resident in 1989. The respondent was convicted of the offense of

“obstructing and hindering,” a crime under the common law of Maryland.

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The charge to which the respondent pleaded guilty asserts that he “did

intentionally and knowingly obstruct and hinder a police officer . . . in the

performance of the [police officer] victim’s duties.” The respondent

received a 1-year sentence. A statement appended to the criminal charging

document asserts that the respondent, after departing his residence in a

vehicle, was chased by a police officer and was finally apprehended in

Delaware after jumping from his moving vehicle. It is not clear why the

respondent was being pursued.

It appears that the respondent was taken into Service custody and

removal proceedings were commenced in November 1998, charging that he

was subject to removal under section 237(a)(2)(A)(iii) of the Immigration

and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as an

alien who has been convicted of an aggravated felony as defined in section

101(a)(43)(S) of the Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. II 1996)

(obstruction of justice). The Immigration Judge, however, terminated the

underlying removal proceedings on January 20, 1999, after deciding that

the respondent’s conviction does not qualify as an aggravated felony.

That same day the Immigration Judge issued an oral order in bond pro-

ceedings releasing the respondent from custody. The Immigration Judge fol-

lowed his January 20, 1999, oral order with a written release order, dated

January 22, 1999. The Service timely appealed both the Immigration Judge’s

decision terminating the respondent’s removal proceedings and the

Immigration Judge’s order releasing the respondent on his own recognizance.

The Service obtained an automatic stay of the release order during the penden-

cy of its bond appeal, in accordance with our earlier ruling in this case. Matter

of Joseph, supra. At present, we only address the Service’s appeal from the

Immigration Judge’s release order and thereby resolve the bond appeal.

III. THE SERVICE’S POSITION

The Service maintains that the respondent’s conviction is for an aggra-

vated felony, that he is therefore ineligible for release, and that the

Immigration Judge lacked jurisdiction to redetermine the custody conditions

imposed by the Service. The Service further argues that the Immigration

Judge’s decision in the respondent’s removal proceedings, finding that the

respondent is not an aggravated felon, is an improper basis for making a bond

determination. The Service points out that it has timely appealed the

Immigration Judge’s removal decision and that it could prevail in its merits

appeal. It argues that releasing an alien charged as an aggravated felon would

be inconsistent with congressional intent in such circumstances.

Nevertheless, the Service has only provided a brief overview of its

arguments on the underlying merits of the removal case, and it declines to

“burden these bond proceedings with a complete exposition of its position

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on the merits.” According to the Service, the respondent remains ineligible

for release because his conviction record provided the requisite “reason to

believe” that he is removable as an aggravated felon, in accordance with our

earlier ruling in this case. See Matter of Joseph, supra, at 10 (discussing the

“reason to believe” language contained in the regulatory history of the cur-

rent bond regulations).

IV. THE GOVERNING LAW

The provisions governing the respondent’s detention, pending an

administratively final order in removal proceedings, are section 236 of the

Act, 8 U.S.C. § 1226 (Supp. II 1996), and the regulations in 8 C.F.R. §§

3.19 and 236.1. The statute prescribes mandatory detention for certain

aliens, including those who are deportable by reason of having committed

aggravated felonies. Section 236(c)(1)(B) of the Act. An exception, per-

taining to cases involving witness protection, does not apply here. Section

236(c)(2) of the Act.

The regulations generally do not confer jurisdiction on Immigration

Judges over custody or bond determinations respecting those aliens subject

to mandatory detention, such as aggravated felons. 8 C.F.R. §

3.19(h)(2)(i)(D). The regulations, nevertheless, specifically allow an alien

to seek a determination from an Immigration Judge “that the alien is not

properly included within” certain of the regulatory provisions which would

deprive the Immigration Judge of bond jurisdiction, including the one at

issue here. 8 C.F.R. § 3.19(h)(2)(ii). We must examine the import of this lat-

ter provision given the present posture of this case.1

1

8 C.F.R. § 3.19(h)(2)(i) provides, in relevant part:

Upon expiration of the Transition Period Custody Rules set forth in section

303(b)(3) of Div. C. of Pub. L. 104-208, an immigration judge may not redeter-

mine conditions of custody imposed by the Service with respect to the following

classes of aliens:

...

(D) Aliens in removal proceedings subject to section 236(c)(1) of the Act (as in

effect after expiration of the Transition Period Custody Rules) . . . .

Aliens convicted of aggravated felonies fall within section 236(c)(1) of the Act, taking

them outside the bond and custody jurisdiction of Immigration Judges. Nevertheless, 8 C.F.R.

§ 3.19(h)(2)(ii) provides in part:

[W]ith respect to paragraphs (h)(2)(i)(C), (D), and (E) of this section, nothing

in this paragraph shall be construed as prohibiting an alien from seeking a deter-

mination by an immigration judge that the alien is not properly included within

any of those paragraphs.

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In a case such as this, the structure of the bond regulations means that

the Immigration Judge’s jurisdiction over custody issues is dependent on

the answer to the very same question that underlies the charge of remov-

ability in the case in chief. In other words, if the respondent is removable as

an aggravated felon, the Immigration Judge lacks any bond jurisdiction.

Conversely, the Immigration Judge would have authority to redetermine

custody conditions if the respondent is not removable as an aggravated

felon.

V. THE REMOVAL DECISION MAY BE A BASIS

FOR THE BOND RULING

Given the regulatory scheme, we find no basis to the Service’s contention

that the Immigration Judge should not be able to use his ruling on the under-

lying merits of the removal proceedings as the basis for his finding of juris-

diction over the respondent’s bond claim. Nothing in the regulations prohibits

such action by the Immigration Judge, and the regulatory structure would

actually seem to encourage the approach taken by the Immigration Judge,

because the essential question is identical in both contexts.

The Immigration Judge could have made a threshold assessment in the

bond context of whether the respondent’s conviction was properly classified

by the Service as an aggravated felony. However, the Immigration Judge

elected first to complete the removal hearing. The Immigration Judge found

that the respondent had not been convicted of an aggravated felony, the only

charge of removability, and terminated the removal proceedings in the

respondent’s favor. Relying on his removal finding, the Immigration Judge

then made a determination in bond proceedings that the respondent was not

subject to mandatory detention and ordered his release. Nothing in this

sequence of events violates the structure or spirit of the regulations, given

that the Service’s appeal of the removal order meant that there was no final

order in place. See 8 C.F.R. § 236.1(d) (“Once a removal order becomes

administratively final, determinations regarding custody and bond are made

by the district director.”).

VI. MATTER OF JOSEPH EXPLAINED

We also reject the Service’s contention that the same basis for its initial

charge of removability, which we found sufficient for purposes of the auto-

matic stay as well, is adequate in this case to provide the needed “reason to

believe” that the respondent is an aggravated felon when we reach the sub-

stance of the bond appeal. In this respect, the Service’s reading of our deci-

sion in Matter of Joseph, supra, is erroneous.

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What was decided in Matter of Joseph, supra, was the question

whether an alien remains “subject to” section 236(c)(1) for automatic stay

purposes after the Immigration Judge has decided that he is not subject to

mandatory detention. 8 C.F.R. § 3.19(i)(2). The Service quotes language

from that decision stating that “the respondent’s conviction record provid-

ed the Service with the requisite ‘reason to believe’ that the respondent was

removable as an aggravated felon, and the respondent thus became ‘subject

to’ section 236(c)(1) of the Act when charged with removability under sec-

tion 237(a)(2)(A)(iii).” Id. at 10. The Service appears to argue that the “rea-

son to believe” which led it to bring the aggravated felony charge against

the respondent is sufficient to control for bond purposes until the final res-

olution of the underlying removal case. While the Service’s position may

often be correct as a practical matter in other cases, this is because the

nature of many convictions quite clearly make aliens subject to mandatory

detention. But that will not be true in all cases, and we do not find it to be

true here.

To clarify what we said in Matter of Joseph, supra, the respondent’s

conviction record provided the Service with the requisite “reason to

believe” that he had been convicted of an aggravated felony for purposes of

charging and making the initial custody determination. However, the

Service’s decision in that regard is not unreviewable by the Immigration

Judge or the Board in either the bond or the removal context. We found in

Joseph that the automatic stay regulation was intended as a means for the

Service to preserve the “status quo” of the district director’s determination

that the respondent must be detained, but only until we decide the Service’s

appeal from the Immigration Judge’s release order. Matter of Joseph, supra,

at 16.

The Service evidently misunderstands the discussion in our earlier

decision of the regulatory history of the automatic stay provision, which

provides that the Board retains full authority to accept or reject the Service’s

contentions in its bond appeal. See Procedures for the Detention and

Release of Criminal Aliens by the Immigration and Naturalization Service

and for Custody Redeterminations by the Executive Office for Immigration

Review, 63 Fed. Reg. 27,441, 27,447 (1998); Matter of Joseph, supra, at 12.

The Service’s position fails to recognize either the Immigration Judge’s or

the Board’s role in the detention review process, apparently viewing our

authority as being confined to looking only to whether the Service had a

basis for charging the respondent with removability under one of the

grounds listed in section 236(c)(1) of the Act.

Our role in this appeal is, instead, to determine whether the

Immigration Judge correctly found that the respondent was not properly

included in the mandatory detention scheme. This requires consideration of

the evidence and argument offered during the bond proceedings on this

question and of the force of the Immigration Judge’s reasoning. It is more

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than just a perfunctory review and ratification of the fact that the Service

may have had a “reason to believe” the respondent was an aggravated felon

at the time it began the proceedings.

VII. THE INTERPRETATION OF 8 C.F.R. § 3.19(h)(2)(ii)

Our construction of the regulation at issue here flows directly from

what we said in Matter of Joseph. Any presumption that the respondent is

an aggravated felon based on his conviction record and the charge brought

by the Service is insufficient, by itself, to control the outcome of the bond

appeal if the record as a whole shows otherwise. In this regard, we under-

stand that the very purpose of the regulation, 8 C.F.R. § 3.19(h)(2)(ii), is

to provide an alien, such as the respondent, with the opportunity to offer

evidence and legal authority on the question whether the Service has

properly included him within a category that is subject to mandatory

detention.

Here, the Immigration Judge was convinced by the respondent’s argu-

ments that his Maryland common law “obstructing and hindering” charge

is not an aggravated felony. The Immigration Judge compared the Maryland

case law argued by the respondent to federal law and agreed with the

respondent that the elements of the crime, and the types of conduct which

it includes, are not analogous to “obstruction of justice” as contemplated by

the aggravated felony definition at section 101(a)(43)(S) of the Act.

The Service argues, however, that it has appealed the merits decision

terminating removal proceedings. And it contends the following in its

appeal brief: “If the Service turns out to be right, absent the Board’s sus-

taining of the instant bond appeal, the respondent, an aggravated felon sub-

ject to mandatory custody, will have been released from custody. That is not

the disposition envisioned by Congress in enacting the mandatory custody

provision of section 236(c).”

But this case involves a lawful permanent resident who has been

charged with only one ground of removability. Under our laws, the respon-

dent would be allowed to reside and work in the United States, but for the

pendency of the aggravated felony charge brought by the Service. And, as

noted above, the bond regulations specifically accord a level of protection

for aliens charged with grounds that would require mandatory detention.

Those regulations allow for an independent assessment by an Immigration

Judge and the Board, in the preliminary bond context, of whether the alien

is “properly included” in a category subject to mandatory detention.

The mere fact that the Service has appealed in the underlying removal

case, and in theory could prevail, cannot be sufficient, by itself, to require the

reversal of the Immigration Judge in this bond appeal. If it were, there would

seem to be little or no point to the regulatory provision that allows the

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Immigration Judge, and the Board on appeal, to make a determination on

whether the alien is “properly included” in a mandatory detention category.

A determination in favor of an alien on this issue does not lead to auto-

matic release. It simply allows an Immigration Judge to consider the ques-

tion of bond under the custody standards of section 236(a) of the Act. Yet,

under the Service’s approach, an alien such as the respondent would seem

to have no recourse to that ordinary bond provision, even in cases where the

Service is wrong in its charge and will lose on appeal. As we explained in

connection with our discussion of Matter of Joseph above, the regulation

must have meaning beyond simply allowing for a perfunctory review of the

basis for the Service’s charge. Indeed, the regulatory history indicates that

this rule was intended to provide “for an individualized hearing on whether

an alien in custody actually falls within a category of aliens subject to

mandatory detention.” 63 Fed. Reg. at 27,444 (emphasis added).

This, however, is a case of first impression, and the regulations do not

spell out the precise role of an Immigration Judge or the Board in assess-

ing, in the bond context, whether an alien is “properly included” in a

mandatory detention category. Yet, this case also involves a lawful perma-

nent resident. And, as we explain below, we find that the Service is sub-

stantially unlikely to establish the charge of deportability in its appeal of the

underlying removal case. Under such circumstances, we find it inappropri-

ate to continue to treat the respondent as an alien who is subject to manda-

tory detention, if we are to give meaningful life to the regulations allowing

for an examination by Immigration Judges and the Board of this question.

Thus, subject to the automatic stay provision, we determine that a lawful

permanent resident will not be considered “properly included” in a manda-

tory detention category when an Immigration Judge or the Board is con-

vinced that the Service is substantially unlikely to establish at the merits

hearing, or on appeal, the charge or charges that would otherwise subject

the alien to mandatory detention.

The Immigration Judge here issued his bond ruling after the conclusion

of the removal case. As indicated above, the Immigration Judge was enti-

tled to rely on that merits decision in making the related bond determina-

tion that the respondent was not properly included in a mandatory detention

category.

The regulations, however, allow this determination to be made by the

Immigration Judge at a very early stage of the overall proceedings. The

Service is, of course, entitled to bring any charge it deems warranted in a

given case. Importantly, as the Service points out, the statutory scheme

envisions the detention of aliens subject to grounds such as the aggravated

felony charge here. Consequently, the Immigration Judge must have very

substantial grounds to override the custodial effect of the Service’s charge

in those cases where the Immigration Judge addresses whether the perma-

nent resident is properly included in a mandatory detention category prior

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to completion of the merits hearing.

It follows from what we said in Matter of Joseph, supra, at 10, that the

“reason to believe” that the alien “falls within a category barred from release,”

which led the Service to bring a particular charge, can often be expected to

suffice until the Immigration Judge resolves the merits of the removal case, a

resolution that frequently occurs speedily in cases involving detained crimi-

nal aliens. 63 Fed. Reg. at 27,444-45. But the Immigration Judge is able to

examine the basis for that charge and make an independent determination

whether the alien “actually falls within a category of aliens subject to manda-

tory detention.” Id. at 27,444. In requiring that the Immigration Judge be con-

vinced that the Service is substantially unlikely to prevail on its charge, when

making this determination before the resolution of the underlying case, we

provide both significant weight to the Service’s “reason to believe” that led to

the charge and genuine life to the regulation that allows for an Immigration

Judge’s reexamination of this issue.

In addition, we note that the bond regulations generally allow for great

flexibility in making rulings on custody issues. For example, 8 C.F.R. §

3.19(d) provides in part: “The determination of the Immigration Judge as

to custody status or bond may be based upon any information that is avail-

able to the Immigration Judge or that is presented to him or her by the alien

or the Service.”

Further, in assessing whether an alien is “properly included” in a

mandatory detention category during a bond hearing taking place early in

the removal process, the Immigration Judge must necessarily look forward

to what is likely to be shown during the hearing on the underlying removal

case. Thus, for example, the failure of the Service to possess a certified copy

of a conviction record shortly after taking an alien into custody would not

necessarily be indicative of its ability to produce such a record at the mer-

its hearing. And the same could be true of evidence tendered by the alien

during an early bond hearing.

VIII. THE SERVICE’S PROSPECT FOR SUCCESS IN

THE REMOVAL CASE

Turning to the bond record in this case, we do have evidence respect-

ing the respondent’s conviction for “obstructing and hindering” under

Maryland law. We agree with the Immigration Judge that this evidence

strongly indicates that the respondent’s conviction resulted from his actions

to obstruct or hinder his own arrest.

The Maryland case law relied upon by the Immigration Judge, Cover v.

State, 466 A.2d 1276 (Md. 1983), reflects that the crime of obstructing and

hindering encompasses three types of offenses: (1) positive direct obstruc-

tion (i.e. resisting one’s own arrest), (2) passive direct obstruction (where a

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subject refuses or fails to act as directed by a police officer), and (3) posi-

tive indirect obstruction (where the police are not acting directly against the

subject, but are acting indirectly against another who has committed, or

may commit, a criminal offense, and the subject does an act which obstructs

them in their general duty to prevent or detect crime, intending to frustrate

them in the performance of that duty).

At least in this bond case, the Service has provided little to challenge

the Immigration Judge’s determination that the respondent’s offense is not

correctly classified as an aggravated felony. The Service cites to Matter of

Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997), as support for its posi-

tion. However, we agree with the Immigration Judge that, unlike Batista-

Hernandez, the respondent in the present case was seeking to evade his

own arrest, rather than obstructing the arrest of another. The Service’s

reliance on United States v. John, 935 F.2d 644 (4th Cir. 1991), is likewise

unpersuasive. This sentence enhancement case indicates that mere flight

from an arresting officer is not sufficient, in itself, to warrant an adjustment

of a defendant’s offense level under the obstruction of justice provision in

the United States Sentencing Guidelines in U.S.S.G. § 3C1.1 (1990). See 18

U.S.C.A. ch. 3, § 3C.1.1 (West 1996). The Service has also not addressed

the Immigration Judge’s reliance on the Supreme Court’s decision in United

States v. Aguilar, 515 U.S. 593, 599 (1995), for the proposition that an

“intent to influence judicial or grand jury proceedings” is more the sort of

activity constituting an “obstruction of justice” under the Act than is the

respondent’s conviction for obstructing or hindering his own arrest in a

manner that does not appear to have endangered the officer.

We do not purport to make a final ruling on whether the respondent’s

conviction falls within the aggravated felony provision of section

101(a)(43)(S). The possibility remains that the Service might offer some

convincing argument in its merits appeal. However, it opted not to do so

here. On the basis of this bond record, it appears that Maryland’s “obstruct-

ing and hindering” law is divisible, encompassing the conduct of resisting

one’s own arrest. Even if some of the other categories of activities included

in this crime might potentially be construed as obstruction of justice, we

find that it is substantially unlikely that the offense of simply obstructing or

hindering one’s own arrest will be viewed as an obstruction of justice aggra-

vated felony under section 101(a)(43)(S) of the Act for removal purposes.

Consequently, we agree with the Immigration Judge that the respondent is

not “properly included” in the category of aliens subject to mandatory

detention for bond or custody purposes. 8 C.F.R. § 3.19(h)(2)(ii).

IX. THE RELEASE ORDER

Our determination, in agreement with the Immigration Judge, that the

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respondent is not properly included in a mandatory detention category

would not ordinarily end the bond inquiry. It simply means that the lawful

permanent resident could be considered by the Immigration Judge for

release under the general bond provisions of section 236(a) of the Act. In

this case, however, the Service has not challenged the specific terms of the

Immigration Judge’s release order in its appeal brief.

Consequently, for the foregoing reasons, on May 19, 1999, we entered

an order which extinguished the automatic stay that had attached upon the

tendering of the Form EOIR-43 (Notice of INS Intent to Appeal Custody

Redetermination) by the Service in this case. We now repeat that order for

the sake of clarity.

ORDER: The appeal taken by the Service is dismissed.

FURTHER ORDER: The respondent shall be released pursuant to

the terms of the Immigration Judge’s January 22, 1999, bond order.

CONCURRING AND DISSENTING OPINION: Paul W. Schmidt,

Chairman; in which Fred W. Vacca, Gustavo D. Villageliu, Lory D.

Rosenberg, and John Guendelsberger, Board Members, joined

I respectfully concur in part and dissent in part.

I join entirely in the majority’s rejection of the Immigration and

Naturalization Service’s appellate arguments and in the unanimous conclu-

sion that, on this record, the Service is substantially unlikely to prevail on

the merits of the aggravated felony charge. Therefore, I agree that the

respondent is not properly included in the category of aliens subject to

mandatory detention for bond or custody purposes.

However, I do not share the majority’s view that the proper standard in

a mandatory detention case involving a lawful permanent resident alien is

that the Service is “substantially unlikely to prevail” on its charge. Matter

of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a

case such as the one before us should be whether the Service has demon-

strated a likelihood of success on the merits of its charge that the respon-

dent is removable because of an aggravated felony.

Mandatory detention of a lawful permanent resident alien is a drastic

step that implicates constitutionally-protected liberty interests. Where the

lawful permanent resident respondent has made a colorable showing in cus-

tody proceedings that he or she is not subject to mandatory detention, the

Service should be required to show a likelihood of success on the merits of

its charge to continue mandatory detention. To enable the Immigration

Judge to make the necessary independent determination in such a case, the

Service should provide evidence of the applicable state or federal law under

which the respondent was convicted and whatever proof of conviction that

is available at the time of the Immigration Judge’s inquiry.

The majority’s enunciated standard of “substantially unlikely to pre-

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vail” is inappropriately deferential to the Service, the prosecutor in this mat-

ter. Requiring the Service to demonstrate a likelihood of success on the

merits of its charge would not unduly burden the Service and would give

more appropriate weight to the liberty interests of the lawful permanent res-

ident alien. Such a standard also would provide more “genuine life to the

regulation that allows for an Immigration Judge’s reexamination of this

issue,” as referenced by the majority. Matter of Joseph, supra, at 10.

The Service’s failure to establish a likelihood of success on the merits

would not result in the release of a lawful permanent resident who poses a

threat to society. Continued custody of such an alien would still be war-

ranted under the discretionary criteria for detention.

In conclusion, mandatory detention should not be authorized where the

Service has failed to demonstrate a likelihood of success on the merits of its

charge. Consequently, while I am in complete agreement with the decision

to release this lawful permanent resident alien, and I agree fully that the

Service is substantially unlikely to prevail on the merits of this aggravated

felony charge, I respectfully dissent from the majority’s enunciation of

“substantially unlikely to prevail” as the standard to be applied in all future

cases involving mandatory detention of lawful permanent resident aliens.

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