Interim Decision #3438

Interim Decision #3438

In re Neville George WEST, Respondent

File A41 361 806 - Newark

Decided as amended October 26, 20001

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The mandatory detention provisions of section 236(c) of the Immigration and Nationality

Act, 8 U.S.C. § 1226(c) (Supp. IV 1998), do not apply to an alien who was convicted after the

expiration of the Transition Period Custody Rules (“Transition Rules”), but who was last

released from the physical custody of state authorities prior to the expiration of the Transition

Rules and who was not physically confined or restrained as a result of that conviction.

Robert Frank, Esquire, Newark, New Jersey, for respondent

Patrice M. Rodman, Assistant District Counsel, for the Immigration and Naturalization Service

Before:

Board Panel: HEILMAN, FILPPU, and MOSCATO, Board Members.

FILPPU, Board Member:

In a bond decision dated August 30, 1999, an Immigration Judge determined that the respondent was not subject to mandatory detention under

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

(Supp. IV 1998), granted the respondent’s request for a change of custody

status, and set bond in the amount of $5,000. The Immigration and

Naturalization Service has appealed only from the Immigration Judge’s

finding that the respondent is not subject to mandatory detention under section 236(c) of the Act. The appeal will be dismissed.

I. FACTS AND PROCEDURAL HISTORY

The facts in this bond appeal are not in dispute. On April 10, 1997, the

respondent was arrested and charged with various offenses, including pos1

On our own motion, we amend the July 28, 2000, order in this case. The amended order

makes editorial changes consistent with our designation of the case as a precedent.

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session of marijuana with intent to distribute in violation of section 2C:355(b)(11) of the New Jersey Statutes Annotated. He was indicted for these

offenses on December 9, 1997, and, after posting bond, was released from

state custody on December 10, 1997. On September 29, 1998, the respondent pled guilty to the drug charge and to a charge of receiving stolen property. On February 5, 1999, he was sentenced to 1 year of probation for each

offense.

On August 12, 1999, the Service took the respondent into custody and

served him with a Notice to Appear (Form I-862). The Service charged

that, because of his drug conviction, the respondent was subject to removal

under sections 237(a)(2)(A)(iii) and (B)(i) of the Act, 8 U.S.C. §§

1227(a)(2)(A)(iii) and (B)(i) (Supp. IV 1998). The record before us indicates that the respondent was not in physical custody under New Jersey

criminal proceedings at any time after he posted criminal bond on

December 10, 1997.

II. IMMIGRATION JUDGE’S DECISION

The Immigration Judge analyzed the language of section 236(c)(1) of the

Act, which mandates the detention of certain categories of aliens “when the

alien is released, without regard to whether the alien is released on parole,

supervised release, or probation” (the “when released” language). He further

considered the last sentence of section 303(b)(2) of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.

104-208, 110 Stat. 3009-546, 3009-586 (“IIRIRA”), which provides that the

provisions of section 236(c) of the Act “shall apply to individuals released

after” October 8, 1998, the date on which the Transition Period Custody

Rules (“Transition Rules”) expired (the “released after” language).

The Immigration Judge determined that the Service may take an alien

into custody once he or she is free from physical restraint by the state. He

concluded that the respondent was not subject to mandatory detention

because he was free from physical restraint prior to the expiration of the

Transition Rules when he posted bail following his arrest in December

1997. He ordered that bond be set in the amount of $5,000 after finding that

the respondent did not pose a danger to property or persons and was unlikely to abscond.

III. ANALYSIS

Although we agree with the Immigration Judge that the respondent is

not subject to the mandatory detention provisions of section 236(c) of the

Act because he was free from physical restraint prior to the expiration of the

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Transition Rules, the focus of our analysis is substantially different, and we

do not necessarily subscribe to the subsidiary points supporting his conclusion. However, the Immigration Judge applied the correct standard governing aliens subject to section 236(a) of the Act, and the Service has not

appealed the amount of the bond. See Matter of Adeniji, 22 I&N Dec. 1102

(BIA 1999); 8 C.F.R. § 236.1(c)(8) (2000).

The Service proposes that the issue to be resolved in this case turns on

the definition of the “when released” language of section 236(c) of the Act

and asserts that, when the alien is not sentenced to imprisonment, the date of

sentencing should be the date of “release” for the purpose of mandatory

detention. As revealed by our analysis in Matter of Adeniji, supra, however,

the initial issue to be resolved in this case is whether the respondent was

“released after” the expiration of the Transition Rules on October 8, 1998, so

as to trigger the mandatory detention provisions of section 236(c) of the Act.

We noted in Matter of Adeniji, supra, that the respondent, and subsequently the Service, contended that the “released after” language of section

303(b)(2) of the IIRIRA made section 236(c) of the Act applicable only to

aliens released from criminal custody after the expiration of the Transition

Rules. Id. at 1108. We commented that the natural sense of the words would

seem to point in the direction advanced by the parties, but we found ambiguity in the term “released” because it “is not expressly tied to any other

language that would clarify whether it refers to release from criminal custody, Service custody, or some other form of detention.” Id. at 1108. We

observed that “[t]he parties’ proposed reading . . . extends mandatory detention only to aliens who have been released from criminal (and perhaps psychiatric and other nonService) confinement after the expiration of those

rules.” Id. We accepted the proposed reading of the last sentence of section

303(b)(2) of the IIRIRA and held that the respondent was not subject to

mandatory detention under section 236(c) of the Act because “he was

released from his nonService custodial setting (i.e., from criminal custody)

prior to the expiration of the Transition Rules.” Id. at 1111.

The respondent in Matter of Adeniji had been released from the state’s

custody, physical or otherwise, prior to the expiration of the Transition

Rules, because he was convicted, incarcerated, and released from confinement while the Transition Rules were in effect. In this case, the respondent

was also released from the physical custody of the state and convicted while

the Transition Rules were in effect, but he was sentenced to probation after

the expiration of the Transition Rules.

On appeal, the Service does not dispute that only aliens released after

the expiration of the Transition Rules are subject to the mandatory detention provisions of section 236(c) of the Act. However, focusing its argument

on the “when released” language of section 236(c), the Service asserts that

if an alien is not sentenced to imprisonment, it is the date of “release” from

the criminal proceeding itself, which occurs at the time of sentencing, that

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triggers the application of the mandatory detention provisions. We assume

that the Service would make essentially the same argument regarding the

“released after” language of section 303(b)(2) of the IIRIRA. That is, the

pertinent date for determining the applicability of section 236(c) of the Act

is the date of release from the technical custody of the criminal court, and

not the date of release from physical custody. Therefore, in order to decide

this case, we must determine whether the word “released” in the “released

after” language in the last sentence of section 303(b)(2) of the IIRIRA

refers to the respondent’s release from physical custody, or to his release

from the jurisdiction of the New Jersey court at the time of sentencing.

In construing a statutory term, we must start with the language of the

statute, and the word should be given its “‘ordinary or natural’” meaning.

Bailey v. United States, 516 U.S. 137, 145 (1995) (quoting Smith v. United

States, 508 U.S. 223, 228 (1993)). “Release” is variously defined as “[t]o

set free from confinement, restraint, or bondage,” or “[t]o unfasten, free, or

let go of.” Webster’s II New College Dictionary 936 (1995). We determined in Matter of Adeniji, supra, that the “released after” language refers

to release from nonService custody. However, the language is ambiguous to

the extent that it does not specify the type of nonService custody from

which the alien is released. The Service contends that it is clear that the term

“released” can have a meaning other than release from physical restraint.

A provision that can seem ambiguous in isolation is often clarified by

examining how the same terminology is used elsewhere in the statutory

scheme. United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., 484

U.S. 365, 371 (1988). The words “release” or “released” are used several

times in section 303 of the IIRIRA. Among the various provisions enacted

by section 303 are those governing bond for aliens held by the Service

pending completion of removal proceedings. The use of the term “release”

in the provisions relating to the release of an alien on an immigration bond

obviously refers to release of the alien from the physical custody of the

Service. See sections 236(a)(2), (c)(2), (e) of the Act (as enacted by IIRIRA

§§ 303(a), 110 Stat. at 3009-585; 303(b)(3)(B), 110 Stat. at 3009-587).

In addition, the word “released” in the “when released” language of

section 236(c) and of the Transition Rules is modified by the subsequent

clauses: “without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be

arrested or imprisoned again for the same offense.” Section 236(c)(1) of the

Act (as enacted by IIRIRA §§ 303(a), 110 Stat. at 3009-585; 303(b)(3)(A),

110 Stat. at 3009-587). “Parole” means the conditional release of a prisoner who has served part of the term for which he was sentenced to prison.

Black’s Law Dictionary 1116 (6th ed. 1990). “Probation” means a sentence

“whereby a convicted criminal offender is released into the community

under the supervision of a probation officer in lieu of incarceration.” Id. at

1202. “Supervised release” under federal criminal law is a period of super1408

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vision following completion of a prison term. See Cuomo v. Barr, 7 F.3d 17,

18 (2d Cir. 1993). The natural reading of the words “released on” within

the context of these clauses of section 236(c)(1) of the Act suggests that

Congress is referring to the release of an alien from a restrictive form of

criminal custody involving physical restraint to a less restrictive form of

criminal custody without physical restraint. The reference in the last clause

of the sentence to the possibility that the alien may be returned to a criminal custody status involving physical restraint (the “arrested or imprisoned

again” language) buttresses this interpretation of the word “released.”

The other use of the word “release” in section 303 of the IIRIRA is

found in the section mandating that the Attorney General designate and

train Service employees to serve as a liaison to law enforcement agencies,

correctional agencies, and courts “with respect to the arrest, conviction, and

release of any alien charged with an aggravated felony.” See section

236(d)(1)(B) of the Act (as enacted by IIRIRA § 303(a), 110 Stat. at 586).

We draw no meaningful guidance from this provision on the question of the

meaning of the word “released” in the last sentence of section 303(b)(2) of

the IIRIRA.

Although the focus of the Service’s argument is on the interpretation of

the word “released” in the “when released” language of section 236(c)(1) of

the Act, we consider it appropriate to briefly summarize and respond to its

other contentions in order to clarify our holding. The Service makes several arguments against interpreting the word “released” to mean freedom

from physical restraint. The Service claims that certain statutory provisions

of section 236(c) of the Act would be rendered ineffective by insistence on

a “release” from physical custody. Citing to Matter of Noble, 21 I&N Dec.

672, 681-82 (BIA 1997), the Service offers the following as examples of

aliens who would not be subject to mandatory detention: terrorists

described in section 236(c)(1)(D) of the Act who have never been convicted of a crime, and aggravated felons described in section 236(c)(1)(B) of

the Act who are not imprisoned, whether as the result of suspended sentences or of sentencing to probation. The Service also asserts that Congress

clearly viewed aggravated felons as a category of criminal aliens who

should be detained based solely on the nature of their convictions. In addition, the Service argues that the word “probation” in the “when released”

language would become superfluous if a release from physical custody is

required, and that a physical custody interpretation conflicts with the

Board’s decision in Matter of Adeniji, supra, in which we acknowledged

that the term “released” could refer to psychiatric or other nonService confinement situations.

We do not find the Service’s arguments convincing. The use of the

words “release” or “released” in section 303 of the IIRIRA consistently

appears to refer to a form of physical restraint. Furthermore, interpreting the

word “released,” as used in the “released after” language of section

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303(b)(2) of the IIRIRA, to mean freedom from physical restraint does not

necessarily preclude the application of the mandatory detention provisions

of section 236(c) of the Act to criminal aliens who have not been released

from a term of imprisonment after October 8, 1998. “Released” in this context can also refer to release from physical custody following arrest, as is

the case with the respondent. We find support for this interpretation in the

fact that section 236(c) of the Act requires detention “when the alien is

released, . . . without regard to whether the alien may be arrested . . . again

for the same offense.”

In Matter of Adeniji, supra, we accepted the interpretation proposed by

the Service even though it created certain anomalies. The Service now

points to other anomalies that we noted in Matter of Noble, supra. In our

judgment, these anomalies bear mainly on the issues that we resolved in

Matter of Adeniji. However, the Service does not seek to revisit Matter of

Adeniji itself.

In the end, we are not persuaded to accord the statutory language any

meaning other than that which we derive from an examination of the statute

as a whole. As such, we construe the word “released” in the last sentence of

section 303(b)(2) of the IIRIRA to refer to a release from physical custody.

The respondent was last released from the physical custody of the State of

New Jersey on December 10, 1997, prior to the expiration of the Transition

Rules. He is therefore not subject to mandatory detention.

Accordingly, the appeal will be dismissed.

ORDER: The appeal of the Immigration and Naturalization Service

is dismissed.

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