Interim Decision #3302

Interim Decision #3302

In re Valentin VALDEZ-Valdez, Respondent

File A34 450 528 - San Antonio

Decided January 30, 1997

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The Transition Period Custody Rules invoked on October 9, 1996, govern bond

redeterminations of aliens falling within the nonaggravated felony criminal grounds of

deportation covered in those rules, regardless of when the criminal offenses and convictions

occurred.

(2) The Transition Period Custody Rules govern bond redetermination appeals of otherwise

covered criminal aliens who are not now in custody by virtue of immigration bond rulings

rendered prior to the October 9, 1996, invocation of those rules.

FOR RESPONDENT: Alberto Cruz, Accredited Representative

AMICUS CURIAE1: Marc Van Der Hout, Esquire, San Francisco, California

AMICUS CURIAE1: Kelly McCown, Esquire, San Francisco, California

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Scott M. Rosen, Appellate Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HEILMAN,

HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, and MATHON, Board Members.

Dissenting Opinion: ROSENBERG, Board Member, joined by VACCA and

GUENDELSBERGER, Board Members.

FILPPU, Board Member:

This is a bond redetermination case originally appealed to the Board by

the Immigration and Naturalization Service. While the appeal was pending,

Congress enacted the Transition Period Custody Rules (“transition rules”) in

section 303(b)(3) 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 (enacted Sept. 30, 1996)(“IIRIRA”). Effective on October 9, 1996,

the transition rules set forth new standards for releasing criminal aliens from

1 This Board acknowledges with appreciation the thoughtful arguments raised in amicus

curiae’s brief.

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immigration detention pending proceedings respecting their removal from

this country. In Matter of Noble, 21 I&N Dec. 672 (BIA 1997), we held that

bond redeterminations of detained deportable aliens convicted of an aggravated felony are presently governed by the transition rules, irrespective of

how or when the alien came into immigration custody.

The case before us is a companion case to Noble. It presents two issues.

The first issue is whether the transition rules govern bond redeterminations of

aliens who are presently not detained, but were freed from immigration custody before the transition rules took effect on October 9, 1996. The second

issue is whether the transition rules apply to aliens falling within a

nonaggravated felony criminal ground of deportation covered by the transition rules, even if the criminal offenses and convictions occurred before those

rules became effective.

The Board requested supplemental briefing from the parties and amici on

these issues. The Service submitted a brief arguing its position that the transition rules applied to this case. But, in the last sentence of its brief, the Service

made a perfunctory request to withdraw the appeal. Notwithstanding this

request, we take the case on certification pursuant to our authority in 8 C.F.R.

§ 3.1(c) (1996) to resolve these important issues. Upon certification, we hold

that the transition rules govern this case. The record will be remanded to the

Immigration Judge.

I. PROCEDURAL HISTORY

The respondent is a 25-year-old native and citizen of Mexico who entered

the United States as a lawful permanent resident in 1973 at the age of 2. His

family ties to this country include his wife and three United States citizen

children. In 1993, the respondent was convicted under Texas law for the

offense of possession of marijuana. For this offense, he was sentenced to 7

years’ probation with no incarceration.

The respondent was subsequently placed in deportation proceedings. In an

Order to Show Cause and Notice of Hearing (Form I-221) dated September

11, 1995, the Service charged the respondent with deportability as having

been convicted of a controlled substance violation under section 241(a)(2)

(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i)

(1994). The record indicates that the respondent was taken into Service custody in September of 1995. Shortly thereafter, he successfully posted a $1000

bond, evidently set by the district director pursuant to the then-governing

release standards.2 See Matter of Patel, 15 I&N Dec. 666 (BIA 1976).

On May 1, 1996, the respondent was taken back into Service custody

when he appeared at the Immigration Court for a deportation hearing. His

2 In September 1995, the statutory provision governing custody determinations for aliens

deportable on nonaggravated felony grounds was section 242(a)(1) of the Act, 8 U.S.C.

§ 1252(a)(1) (1994). It provided, in relevant part:

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$1000 bond was apparently canceled. At a custody redetermination hearing

on May 3, 1996, the Service argued before an Immigration Judge that the

respondent was not eligible for release on bond. According to the Service, the

respondent’s controlled substance violation triggered the then newly enacted

mandatory detention requirement contained in section 440(c) of the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

110 Stat. 1214, 1277 (enacted Apr. 24, 1996) (“AEDPA”).3 The Immigration

Judge disagreed and authorized the respondent’s release on the previously set

$1000 bond.

After the Service filed motions to stay and reconsider, the Immigration

Judge prepared a written memorandum dated June 3, 1996, explaining her

reasons for setting a bond. The Immigration Judge concluded that the mandatory detention requirement of section 242(a)(2) of the Act, as amended by

the AEDPA’s section 440(c), did not apply to the respondent because it covered, according to the reading of the statutory language adopted by the Immigration Judge, only those aliens released from criminal incarceration after the

AEDPA’s April 24, 1996, effective date. The Immigration Judge further concluded that an increase in the bond amount was not warranted, based on a

finding that the respondent’s risk of flight was minimal. She recognized that

the respondent was ordered deported in separate proceedings on May 30,

1996, but noted that the respondent had reserved appeal in that case. There is

nothing in the record demonstrating that the Immigration Judge considered

whether the respondent was a danger to the community. The Immigration

Judge denied the Service’s motions to stay and reconsider her prior order

releasing the respondent on bond. The record reflects that the respondent

posted the bond and was out of immigration custody shortly after the Immigration Judge’s written decision was entered.

The Service’s appeal ensued. It argued on appeal that the Immigration

Judge erred in finding the respondent was not subject to the mandatory

Except as provided in paragraph (2), any such alien taken into custody may, in the

discretion of the Attorney General and pending such final determination of deportability

[as provided in subsection (b)], (A) be continued in custody; or (B) be released under

bond in the amount of not less than $500 with security approved by the Attorney General,

containing such conditions as the Attorney General may prescribe; or (C) be released on

conditional parole. But such bond or parole . . . may be revoked at any time by the

Attorney General, in [her] discretion . . . .

3 Section 440(c) of the AEDPA amended section 242(a)(2) of the Act, which, following its

amendment, read as follows:

The Attorney General shall take into custody any alien convicted of any criminal offense

covered in section 241(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered

by section 241(a)(2)(A)(ii) of this title for which both predicate offenses are covered by

section 241(a)(2)(A)(i) of this title, upon release of the alien from incarceration, shall

deport the alien as expeditiously as possible. Notwithstanding paragraph (1) or

subsection (c) and (d) of this section, the Attorney General shall not release such felon

from custody.

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detention requirement enacted by the AEDPA. While the appeal was pending, however, the transition rules became effective on October 9, 1996, and

replaced section 440(c) of the AEDPA on that date.4 See Matter of Noble,

supra, at 5.

In light of the change in governing standards, this Board requested supplemental briefs from the parties and amici addressing the question of whether

the transition rules applied to this case and, if not, what standards would

apply. The record reflects that the respondent remains out of immigration

custody and that his appeal of his separate deportation case is currently pending before this Board.

II. LEGAL BACKGROUND

Since the respondent’s 1993 conviction, Congress has twice changed the

civil immigration detention and release standards governing criminal aliens.

These statutory amendments occurred in April and September of 1996. Prior

to April 1996, custody determinations for aliens deportable on

nonaggravated felony grounds were governed by the general bond provisions

found in section 242(a)(1) of the Act, under which it was presumed that an

alien would not be detained or required to post bond unless there was a finding that the alien is a threat to the national security or a poor bail risk. Matter

of Patel, supra.

In April 1996, however, Congress eliminated the Attorney General’s

authority to release from detention most criminal aliens. Pursuant to the

AEDPA’s amendments to section 242(a)(2) of the Act, the Attorney General

had no authority to release any alien convicted of an aggravated felony, a

4 The Transition Period Custody Rules are set forth in section 303(b)(3) of the IIRIRA and

read, in pertinent part:

(A) IN GENERAL. During the period in which this paragraph is in effect . . . , the

Attorney General shall take into custody any alien who -. . .

(ii) is inadmissible by reason of having committed any offense covered in section

212(a)(2) of such Act,

(iii) is deportable by reason of having committed any offense covered in section

241(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of such Act (before redesignation under this

subtitle) . . . .. . .

(B) RELEASE. - The Attorney General may release the alien only if the alien is an alien

described in subparagraph (A)(ii) or (A)(iii) and (i) the alien was lawfully admitted to the United States and satisfies the Attorney

General that the alien will not pose a danger to the safety of other persons or of

property and is likely to appear for any scheduled proceeding, or

(ii) the alien was not lawfully admitted to the United States, cannot be removed

because the designated country of removal will not accept the alien, and satisfies the

Attorney General that the alien will not pose a danger to the safety of other persons or

of property and is likely to appear for any scheduled proceeding.

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controlled substance offense, a firearms offense, any miscellaneous criminal

offense described in section 241(a)(2)(D), or two crimes of moral turpitude,

as long as any of these offenses brought an alien within one of the “covered”

grounds of deportation. See AEDPA § 440(c).

In the IIRIRA, enacted in September 1996, Congress temporarily restored

some discretionary authority to the Attorney General to release from custody

most of the criminal aliens previously subject to mandatory detention. See

IIRIRA § 303(b)(3), 110 Stat. at 3009- 586; Matter of Noble, supra, at

674-75. The transition rules became effective on October 9, 1996, and authorized, under specified conditions, the release of aliens convicted of offenses

covered in the deportation grounds listed in the transition rule statute. For

nonaggravated felons, however, the release standards under the transition

rules are more restrictive than the bond provisions which governed prior to

the AEDPA’s enactment. Under the new standards, the alien must demonstrate that he was either lawfully admitted or cannot be removed because the

designated country will not accept him, that he will not pose a danger to

safety of persons or of property, and that he will likely appear for any scheduled proceeding.

In Matter of Noble, supra, we read the transition rules as governing all

detained criminal aliens irrespective of how or when the alien came into immigration custody, unless applying the new standards would have a prohibited

retroactive effect under Landgraf v. USI Film Products, 511 U.S. 244 (1994).

In Noble, we found no retroactivity problem as applied to aggravated felons.

We left open several questions in Noble regarding the transition rules. We

explicitly reserved deciding whether it would be impermissible to apply the

transition rules retroactively to an alien deportable on a criminal offense covered in the specified grounds of deportation, when the offense was not an

aggravated felony. We also did not reach the question of whether the transition rules applied to nondetained aliens who posted immigration bonds prior

to the October 9, 1996, invocation of those rules, and whose bond cases were

on appeal to us at that time.

We now turn to these questions.5

III. ISSUES PRESENTED

The issues presented in this case are as follows:

1. Whether the Transition Period Custody Rules govern a pending bond

redetermination appeal of an alien who has posted bond and was freed from

immigration custody prior to the October 9, 1996, invocation of those rules.

5 Given our readings of sections 303(b)(2) and (3) of the IIRIRA in Matter of Noble, supra,

we again find it unnecessary to address the question of whether the Immigration Judge erred in

finding that section 242(a)(2) of the Act, as amended by section 440(c) of the AEDPA, applied

only to those aliens released from criminal incarceration after the April 24, 1996, effective date

of the AEDPA.

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2. Whether applying the Transition Period Custody Rules to a criminal

alien who is deportable for having committed a nonaggravated felony

offense covered in the statute would be impermissibly retroactive, when both

the commission of the offense and the conviction took place before either the

AEDPA amendments or the transition rules went into effect.

IV. THE TRANSITION RULES COVER BOND APPEALS OF

ALIENS PREVIOUSLY RELEASED FROM SERVICE

CUSTODY

We proceed first with the question of whether the transition rules govern a

bond redetermination appeal involving an alien who posted bond and was out

of immigration custody prior to the date those rules took effect, assuming the

alien otherwise falls within those rules. We find that they do.

The new release standards are contained in section 303(b)(3)(B) of the

IIRIRA. The statute provides that the Attorney General “may release [an]

alien” described in either subparagraph (A)(ii) or (A)(iii) only if the alien

makes certain showings. The statute does not directly address the subject of

aliens previously freed under the prior immigration bond law. Nothing in the

new law appears to require the Attorney General to rearrest and confine

aliens previously released on bond or on their own recognizance pending

reassessment under the new law.

For our purposes, however, we read the statutory language to govern any

present bond redetermination, whether the alien is physically in Service custody or not. See Ziffrin v. United States, 318 U.S. 73 (1943) (finding that an

administrative body must apply current law to future acts). This is because

new law generally applies to cases pending on appeal at the time of enactment (absent retroactivity concerns), and because the “may release” language of the statute affects our authority to authorize the alien’s continued

release from custody today.

As an administrative adjudicatory body, we do not assume physical custody of aliens but rather enter bond orders carried out by other governmental

officials. As applied to Board adjudications, the “may release” language of the

statute speaks to our authority to authorize the release of certain deportable

criminal aliens. A simple affirmance of the Immigration Judge in this case

would amount to an order authorizing release under a showing that Congress

no longer permits for aliens falling in the respondent’s circumstances. The setting of a new bond amount would also affect the respondent’s detention. If he

failed to meet the new amount, for example, and were taken into custody, the

alien could be released when he satisfied the new amount pursuant to standards at odds with existing law. We thus find that the transition rules, properly

construed, apply to present bond redeterminations of aliens deportable by virtue of convictions covered by the statute, including to cases of aliens released

from Service custody prior to our adjudication of the appeals.

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Our reading of the statutory language is most consistent with congressional intent. As we indicated in Noble, supra, the legislative history reflects

that the detention provisions of the IIRIRA were geared toward ensuring

community safety and the criminal alien’s appearance at all deportation hearings. It is not apparent why these same concerns would not extend to the

cases of previously bonded aliens with live appeals pending before us.

Nothing in the language of the transition rules appears to prevent us from

applying the new standards on appeal in the case of an alien erroneously

granted bond in a hearing taking place after the October 9, 1996, invocation

date of those rules. The mere fact that an alien has bonded out of custody,

therefore, would not exempt that alien from the constraints of the new law

when the case is entertained on appeal by us. And, we see nothing in the statutory language to distinguish the cases of aliens erroneously bonded out

under the new law from cases of aliens either rightly or wrongly bonded out

under prior law, as long as their appeals were still pending before us when the

law was changed.

We thus conclude that the transition rules govern bond redetermination

appeals before this Board involving aliens who posted bond and were freed

from immigration custody prior to the October 9, 1996, invocation of those

rules.

V. APPLYING TRANSITION RULES DOES NOT IMPLICATE

RETROACTIVITY CONCERNS FOR NONAGGRAVATED

FELONS

We next address whether, given the absence of guiding instructions from

Congress, the transition rules apply to an alien who was convicted of a criminal offense, which does not amount to an aggravated felony, before the

AEDPA amendments and the transition rules took effect. We find that the

transition rules govern such cases. Our conclusion is consistent with the

Supreme Court’s established framework for determining retroactivity of a

statute, as well as federal circuit case law dealing with amendments to bond

provisions in the criminal context. See Landgraf v. USI Film Products,

supra.

Pursuant to the teachings of Landgraf, when Congress does not prescribe

the temporal reach of a newly enacted statute, it is presumed that the statute

does not apply to events antedating its enactment if doing so would impair

substantive rights in place before that date. The Landgraf Court noted that

deciding retroactivity is not a simple or mechanical task, but one that should

be guided by considerations of fair notice, reasonable reliance, and settled

expectations. Landgraf, supra, at 268. A statute, however, is not

impermissibly retroactive simply because it applies to conduct predating its

enactment. Id. at 269. Rather, retroactivity arises only if its application

“would impair rights a party possessed when he acted, increase a party’s

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liability for past conduct, or impose new duties with respect to transactions

already completed.” Id. at 280.

A. Release Under the Transition Rules

Constitutes Prospective Relief

We find at the outset that the new statute is not subject to retroactivity concerns because an alien’s eligibility (or continued eligibility) for release on

bond should be considered a form of prospective relief in the context of

Landgraf. We read the statutory language of the transition rules as regulating

the Attorney General’s authority to detain and to release deportable criminal

aliens presently, not as regulating the respondent’s past conduct. See Matter

of Noble, supra, at 17. The new release statute, for example, does not increase

the punishment, nor change the ingredients of the offense or the ultimate

facts necessary to establish guilt. The respondent’s past conduct is relevant in

the operation of the statute, but only insofar as it bears on the Attorney General’s present authority to make a custody or bond determination.

Bond determinations, in one sense, routinely involve antecedent events,

because one of the factors pertains to the ground of deportability. But they

primarily involve future considerations, such as whether the alien will appear

at his hearing, or whether the alien will pose a threat in some respect if

released. See, e.g., Carlson v. Landon, 342 U.S. 524 (1952); Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994); Matter of Ellis, 20 I&N Dec. 641 (BIA

1993); Matter of Patel, supra; Matter of San Martin, 15 I&N Dec. 167 (BIA

1974); Matter of Moise, 12 I&N Dec. 102 (BIA 1967). Importantly, bond is a

prospective benefit because the question of its availability only arises after

the alien is in custody. To the extent that antecedent events come into play,

they bear either upon the question of present deportability itself or on predicting future behavior from past courses of conduct, such as the inferences that

may be drawn in immigration bond proceedings respecting an alien who

failed to show up for earlier criminal proceedings. See generally United

States v. Salerno, 481 U.S. 739, 747-753 (1987); Schall v. Martin, 467 U.S.

253 (1984). Thus, release on bond should be considered a form of prospective relief within the Landgraf context, even though facts in the operation of

the statute draw from a time antecedent to its effective date. See Landgraf,

supra, at 270 n.24 (noting that a statute “’is not made retroactive merely

because it draws upon antecedent facts for its operation’”) (quoting Cox v.

Hart, 260 U.S. 427, 435 (1922)).

It is the fact of present deportability that is the real underlying concern of

the statute, not simply whether the particular alien was “convicted” of a certain offense. The transition rules impose certain limitations on the release of

aliens who have committed certain offenses “covered” in the specified

grounds of deportation. Not all convictions for even the same crime will lead

to actual deportability on account of such convictions, if for no other reason

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than the existence of temporal restrictions on the applicability of the

deportability charge. See, e.g., AEDPA § 435, 110 Stat. at 1274-75 (providing that crime involving moral turpitude amendments apply to aliens against

whom deportation proceedings are initiated after the date of enactment); section 241(a)(2)(A)(i) of the Act, 8 U.S.C. § 1251(a)(2)(A)(i) (1994) (providing that single crime of moral turpitude, pertinent to the permanent custody

provision of the IIRIRA, must occur within 5 years after entry to lead to

deportability under this subsection).

It is not the simple fact of the conviction which leads to the application of

the custody provisions of the statute, but whether the particular conviction is

actually “covered” by the grounds of deportation, including any prospective

effective date provisions specified by Congress. Consequently, in the end,

the custody provisions of the new statute are inherently tied to the question of

present deportability, not to the mere fact of the past convictions themselves.

Cf. Plaut v. Spendthrift Farm Inc., 514 U.S. 211, 225 (1995) (identifying retroactive legislation as including “legislation that prescribes what the law was

at an earlier time, when the act whose effect is controlled by the legislation

occurred”).

B. Expectations Stemming From Criminal Proceedings Do Not

Lead to Retroactivity Problems

We find further that applying the transition rules to the respondent would

not have an impermissible “retroactive effect” within the meaning of

Landgraf. Amici’s assertion that the pre-AEDPA standards should govern

this case rests on vested rights and fairness principles. Having considered

these arguments, however, we do not find that they represent a correct synthesis of Landgraf retroactivity principles. We find that the transition rules, if

applied to this case, would not take away any rights possessed by the respondent, increase liability, or attach new legal consequences to past conduct.

We are not convinced that the respondent has the sort of vested right or

settled expectation which the Supreme Court sought to describe in Landgraf.

The new law deprives the criminal alien of nothing to which he was entitled

under old law. It would be odd to think that by committing a crime, an alien

acquires a vested right to be treated in a particular way in subsequent deportation proceedings, or that in deciding whether to commit the crime the respondent relied to his detriment on the continued application of the existing

immigration custody law.

The new standard may make release more difficult for a nonaggravated

felon than under the pre-AEDPA standards. This, however, at most creates a

practical disadvantage, not an impairment of protected rights. A criminal

alien is no different from other aliens in being subject to the will of Congress

when it comes to matters associated with his continued presence within our

society. See Harisiades v. Shaughnessy, 342 U.S. 580, 586-87 (1952) (stating

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that resident alien’s ability to remain in this country is not a matter of “right”

but of “permission and tolerance”); Ng Fung Ho v. White, 259 U.S. 276, 280

(1922) (stating that Congress has power to order at any time deportation of

aliens whose presence in the country it deems hurtful); see also Scheidemann

v. INS, 83 F.3d 1517 (3d Cir. 1996) (holding that application of aggravated

felony statutory bar to criminal alien convicted before statute’s effective date

was not impermissibly retroactive); Samaniego-Meraz v. INS, 53 F.3d 254,

256 (9th Cir. 1995) (same); Matter of Gomez-Giraldo, 20 I&N Dec. 957

(BIA 1995) (same). See generally Felker v. Turpin, 518 U.S. 2333 (1996)

(deciding a habeas corpus case under the AEDPA, even though the conviction preceded the amendments).

Amici’s contrary argument rests to a significant extent on the assertion

that “an individual who is convicted under prior law has a right to have that

law applied to him.” Concerns of unfair surprise by changed law, and settled

expectations in prior law, are attenuated in the case of bond relief in the

immigration context. Whatever the criminal alien’s practical expectations

may have been, his conviction (even if entered upon a guilty plea) did not

give him a legally enforceable interest in having the civil immigration laws

remain static as to how he would be treated in future determinations affecting

the deportation process. The alien’s freedom was not guaranteed under prior

law. Any expectation in this regard was, at best, a hope that changed circumstances may or may not let him realize. See New York Central R. R. Co. v.

White, 243 U.S. 188, 198 (1917) (stating that “[n]o person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for

his benefit”).

It has not been shown that the commission of a crime is the sort of event

that gives rise to vested rights or settled expectations such that changes in the

law, outside the confines of criminal law itself, cannot be made without

impairing “rights” possessed by the criminal when he or she acted, or without

“increasing liability” for past conduct. The civil immigration detention of

criminal aliens is not intended to “punish” any past criminal conduct. Rather,

the bond provisions exist in order to preserve the government’s ability to

carry out its present responsibilities over immigration matters. See Carlson v.

Landon, supra, at 541 (upholding detention without bail of lawfully admitted

alien who posed “a menace to the public interest”); Wong Wing v. United

States, 163 U.S. 228, 235 (1896) (stating that detention is a part of a valid and

necessary means to give effect to the provisions for the exclusion and deportation of aliens); Doherty v. Thornburg, 943 F.2d 204, 209-11 (2d Cir. 1991)

(upholding detention without bond of criminal alien pending deportation,

even though detention was prolonged for 8 years), cert. denied sub nom.

Doherty v. Barr, 503 U.S. 901 (1992). Indeed, it would be quite anomalous

if, absent explicit legislative direction to impose statutory changes retroactively, either a criminal act or the results of the criminal justice process froze

the noncriminal legal system entirely in place for the perpetrator of the crime.

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Our conclusion is not changed by the fact this respondent posted bond and

was no longer in immigration detention on the date the new bond provisions

took effect. To be “vested,” a thing must be “[f]ixed; . . . settled; absolute . . . ;

not contingent.” Black’s Law Dictionary 1401 (5th ed. 1979). The immigration bond at issue here lacks these characteristics; it is a privilege extended,

as even the statutory language of pre-AEDPA law evidenced, on a contingent, nonabsolute basis, entirely subject to change. See section 242(a)(1) of

the Act (stating that the Attorney General may “at any time” revoke the

alien’s bond and take him back into custody); 8 C.F.R. § 242.2(e) (1996)

(stating that the district director may revoke the alien’s release “at any time”

and detain him). The respondent, in particular, was put on notice by the Service’s appeal that his bond was subject to dispute and reexamination. He cannot claim any vested interest in the ruling of the Immigration Judge in this

respect.

Lastly, we find unpersuasive amici’s assertion that the retroactivity question also depends on any general “remedial” legislative purpose of the new

law. It is asserted, for example, that the new statute would permissibly apply

to aliens placed in a better or the same position than they would have been

had the new law not been enacted. Conversely, amici argues that the new law

would not apply to aliens made worse off than under prior law. Amici’s test,

however, does not appear to represent a correct application of retroactivity

principles enunciated by the Supreme Court. See Rivers v. Roadway Express,

511 U.S. 298 (1994) (finding that a general remedial or restorative purpose

does not alone answer the retroactivity question); see also Plaut v. Spendthrift Farm Inc., supra, at 1462 (noting that a vaguely remedial purpose of a

statute would not, in and of itself, defeat the presumption against retroactivity); Landgraf, supra, at 285-86 (stating that simply because the application

of a new statute would vindicate its purpose more fully is not sufficient reason to rebut the presumption against retroactivity).

C. Criminal Bond Law Indicates No Retroactivity Problem

Our conclusion finds support in the criminal bond context. The federal

courts have found no retroactivity problems when applying changed bail

standards to detained criminal defendants convicted before the passage of the

new law. See United States v. Angiulo, 755 F.2d 969, 970-74 (1st Cir. 1985)

(holding change in pretrial detention standards not impermissibly retroactive, since defendant could not have reasonably relied on promised freedom

under old law); United States v. Miller, 753 F.2d 19, 21 (3d Cir. 1985) (holding that change in bail standards was not unconstitutional, since change was

merely procedural and did not alter any substantive right); United States v.

Crabtree, 754 F.2d 1200, 1201-02 (5th Cir.) (same), cert. denied, 473 U.S.

905 (1985); United States v. Molt, 758 F.2d 1198, 1200-01 (7th Cir. 1985)

(same), cert. denied, 475 U.S. 1081 (1986); United States v. McCahill, 765

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F.2d 849, 849-51 (9th Cir. 1985) (same); United States v. Affleck, 765 F.2d

944, 947-51 (10th Cir. 1985) (same); United States v. Ballone, 762 F.2d

1381, 1382-83 (11th Cir. 1985) (same); see also De Veau v. United States,

454 A.2d 1308 (D.C. App. 1982) (finding mandatory pretrial detention of

defendants charged with first degree murder not ex post facto as applied to

defendant who committed crime before effective date), cert. denied sub nom.

Holmes v. United States, 460 U.S. 1087 (1983), overruled on other grounds,

Lynch v. United States, 557 A.2d 580 (D.C. App. 1989).

These cases arose before Landgraf, but they are remarkably consistent,

and seem to reflect the sound judicial instincts described in Landgraf, supra,

at 270. If retroactivity is not a problem in the criminal bond context, it is difficult to imagine why it would be a problem in the civil immigration context.

The fact that a defendant was not in custody at the time of the enactment

created some additional uncertainty in the criminal bond area, as this is the

point on which there was a conflict among the courts of appeals that had

addressed the question under the Bail Reform Act of 1984. Compare United

States v. Zannino, 761 F.2d 52 (1st Cir. 1985) (holding that newly enacted

bond provisions applied to defendant released on bail before effective date of

Act where defendant’s expectation of remaining free on bail was minimal),

with United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir. 1985)

(holding that newly enacted bond provisions did not apply to defendant

released on bail before effective date of Act where defendant’s rights to bail

had already vested).

As previously discussed, however, this respondent was put on notice by

prevailing law and the Service’s appeal that his continued release on the

$1000 bond was subject to revision at any time prior to his deportation. Thus,

unlike the defendant in Fernandez-Toledo, the respondent cannot claim any

justified reliance or vested interest in the ruling of the Immigration Judge in

this respect.

Consequently, we see no impediment arising from Landgraf in applying

the new law to the respondent’s present custody determination. See Ziffrin v.

United States, supra (holding that law as amended during appeal process is to

be applied by appellate body in relation to future acts).

VI. CONCLUSION

In sum, we hold that the Transition Period Custody Rules govern pending

bond appeals before this Board involving aliens freed from immigration custody prior to the October 9, 1996, effective date of the transition rules. We

also hold that the transition rules apply to aliens falling within the criminal

grounds of deportation, not involving an aggravated felony, covered in the

transition rule statute, even if the offenses and criminal convictions occurred

before those rules took effect. See Matter of Noble, supra (applying transition rules to aliens deportable as aggravated felons).

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The Immigration Judge released the lawfully admitted respondent under

pre-AEDPA bond standards. See Matter of Patel, supra. She determined that

a $1000 bond was sufficient to ensure the respondent’s future appearance at

any scheduled hearing. The Immigration Judge did not make a finding

regarding dangerousness to the community. We will therefore remand this

case to the Immigration Judge to give the respondent the opportunity to demonstrate that he “will not pose a danger to the safety of other persons or of

property.” See IIRIRA § 303(b)(3)(B)(i). If the respondent satisfies this condition, the Immigration Judge should also reassess the amount of the bond in

accordance with the requirements of the transition rules. The Immigration

Judge should then enter a new decision.

ORDER:

The record is remanded to the Immigration Judge for

further proceedings consistent with the foregoing opinion.

DISSENTING OPINION: Lory D. Rosenberg, Board Member, in

which Fred W. Vacca, and John W. Guendelsberger, Board Members,

joined

I respectfully dissent.

Let me acknowledge at the outset: the Board’s decision in Matter of

Noble, 21 I&N Dec. 672 (BIA 1997), is now precedent by which we are

bound.6 With that in mind, I nonetheless respectfully dissent from both the

reasoning and the conclusion reached by the majority, viewing their opinion

in this case as the inevitably erroneous progeny of a fundamentally erroneous

construction of the relevant sections of the statute set forth in Matter of

Noble, supra, at 672-686. See also id. at 686-702 (Rosenberg, dissenting).

Principally, I disagree with the application of the explicit language of the

transition rules to this respondent for the reasons which I discussed in my dissent in Matter of Noble, supra. While I realize I am in a minority, I find that

the facts of this case make even more prominent the flaws in the majority’s

construction of the language of sections 303(b)(2) and 303(b)(3)(A) and (B)

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,

3009-587 (“IIRIRA”).

The propriety of determining this respondent’s release from Immigration

and Naturalization Service detention under stricter standards in statutory provisions which do not expressly refer to one such as the respondent, who was

convicted before the recent amendments of the statute, who has not been

6 As discussed below, I note that a growing number of federal district courts have rejected a

similar interpretation of section 440(c) of the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (“AEDPA”), that ignores the explicit language

of the statute in determining its reach. However, we are bound by that precedent in any given

district, until it is either overruled by a specific federal district court having jurisdiction over the

individual case before us, Matter of K-S-, 20 I&N Dec. 715 (BIA 1993), or by some other action

which operates to modify or supersede our decision.

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convicted of an aggravated felony, and who never has been incarcerated, is

doubtful. In my view, it compounds the majority’s questionable observance

of the canons of statutory construction, which favor interpretations that give

meaning to plain language and take into account the design of the statute as a

whole, which disfavor retroactive applications of the law, and which instruct

us to adhere to the principle of lenity in construing ambiguous deportation

statutes.

I. FACTUAL AND LEGAL BACKGROUND

The respondent, who was lawfully admitted to this country, has resided

lawfully in the United States for over 20 years since the age of 2. He was convicted in 1993 for possession of marijuana, which was not then and is not

now an aggravated felony. Compare section 101(a)(43) of the Immigration

and Nationality Act, 8 U.S.C. § 1101 (a)(43)(1994), with IIRIRA § 321, 110

Stat. at 3009-627; see also Matter of L-G-, 21 I&N Dec. 89 (BIA 1995). He

was sentenced to probation and was never incarcerated pursuant to any sentence. He has been living with his family and working and participating in his

community before, during, and since the criminal proceedings resulting in

his conviction.

In 1993, when this respondent’s eligibility for release from detention on

bond was initially considered, there existed two standards for such determinations. At that time, eligibility for release from detention in the case of an

alien convicted of an aggravated felony offense after November 18, 1988,

was determined under section 242(a)(2) of the Act, 8 U.S.C. § 1252(a)(2)

(1994). Matter of A-A-, 20 I&N Dec. 492, 497, 499 (BIA 1992); Matter of

De La Cruz, 20 I&N Dec. 346 (BIA 1991). That section required an alien

who had been lawfully admitted to demonstrate that he did not pose a flight

risk or a threat to the community before he could be released from detention;

an alien who had not been lawfully admitted was ineligible for release. See

Matter of Drysdale, 20 I&N Dec. 815, 817-18 (BIA 1994); Matter of Ellis, 20

I&N Dec. 641 (BIA 1993).

However, the respondent was not subject to this provision. The respondent’s bond was determined under section 242(a)(1) of the Act, which governs the terms of release from detention for criminal aliens, including certain

aliens convicted of aggravated felony offenses before November 29, 1990, as

well as for aliens whose immigration violations were unrelated to any criminal activity. Matter of Andrade, 19 I&N Dec. 488, 489 (BIA 1987); Matter of

Patel, 15 I&N Dec. 666 (BIA 1976).

When the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, 110 Stat. 1214 (“AEDPA”), was enacted on April 24, 1996,

section 242(a)(2) of the Act was effectively repealed and replaced by the

terms of section 440(c) of the AEDPA, which required mandatory detention.

In addition to the aggravated felony offenses described in former section

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242(a)(2), section 440(c) of the AEDPA provided for mandatory detention of

any alien deportable for a criminal offense of almost any kind. Section

242(a)(1), under which the respondent’s bond was determined, has not been

repealed, either by section 440(c) of the AEDPA or by any provision of the

IIRIRA.

Following the date of this enactment, the respondent appeared for a deportation hearing (in compliance with the terms of his release from detention)

and was taken into custody by the Service. The Service claimed the respondent was ineligible for release because, although he was not convicted of an

aggravated felony, his conviction came within the broader category of

offenses included in the newly enacted AEDPA mandate.

The Immigration Judge correctly found the respondent was not subject to

section 440(c) of the AEDPA and the Service appealed. In the meantime,

Congress enacted the IIRIRA, containing its own discrete provisions pertaining to custody and detention, including the Transition Period Custody Rules

(“transition rules”), which were activated by the Attorney General’s notification on October 9, 1996, that the Service had inadequate personnel and detention space to detain the number of aliens who would be subject to detention

after enactment of the IIRIRA.

II. STATUTORY LANGUAGE CONSIDERATIONS

The specific provisions of the IIRIRA in issue, section 303(b)(2) and

303(b)(3) of the Act, refer to two other statutory provisions: amended section

236(c) of the Act which takes effect on April 1, 1997, and section 440(c) of

the AEDPA, enacted on April 24, 1996, and in effect at the time of IIRIRA’s

enactment. In determining the scope of the transition rules, we recognize that

those subject to its terms are individuals who were or will be subject to the

provisions for which the rules temporarily substitute. Matter of Noble, supra,

at 680-681; see also id. at 696-697 (Rosenberg, dissenting).

A. Prospective Application and Operation of the Provision

I do not differ from the majority in concluding that the transition rules now

governing certain bond determinations are prospective. Certainly, they apply

to bond determinations subject to their terms which are made following the

date of enactment. Matter of U-M-, 20 I&N Dec. 327 (BIA 1991), aff’d, 989

F.2d 1085 (9th Cir. 1993). Where I do differ is in the application of those

rules.

First, I read the provision as a unitary one, describing aliens to be taken into

custody by the Attorney General and detained subject to eligibility for release

under the terms of section 303(b)(3)(B) of the IIRIRA. Similarly, I read section 440(c) of the AEDPA as a unitary provision describing the “[such] felons” to be taken into custody upon their release from incarceration and held in

detention. Matter of Noble, supra, at 697-699 (Rosenberg, dissenting).

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Second, I view these provisions as clearly prospective, as expressed by the

use of the word “when” in the transition rules, and the use of the word “upon”

in the AEDPA. In the context of the terminology of the respective provisions,

the phrases “when the alien is released” and “upon release from incarceration,” refer to specific events which will take place in the future. Therefore, I

understand a prospective application, not to mean the self-evident fact that

custody determinations are taking place now, but to mean that the statutory

amendments are applicable to persons now being taken into custody when

they are released from incarceration. Id.

Third, I conclude that the language is plain and its scope does not reach the

respondent because he was not an alien who was taken into custody by the

Attorney General when released from incarceration after October 9, 1996.

Similarly, he would not have been covered by the AEDPA because he was

not taken into custody upon release from incarceration after April 24, 1996.

Therefore he does not come within the transition rules “instead of” the provisions of the AEDPA.

The insistence of the majority on divorcing the Attorney General’s function in taking certain criminal aliens into custody upon their release from

incarceration from her role in applying specific terms of release to them, is

directly contrary to the canons of construction. It fragments sections

303(b)(3)(A) and (B) as though these provisions deal with two distinct

groups of individuals or two unrelated processes, rather than interrelated

aspects of custody and release. As I emphasized in Matter of Noble, an interpretation of the statute which gives effect to the language of each provision

and construes the statute as a whole is essential. K Mart Corp. v. Cartier, Inc.,

486 U.S. 281 (1988); COIT Independence Joint Venture v. Federal Sav. and

Loan Ins. Corp., 489 U.S. 561 (1989); Matter of W-F-, 21 I&N Dec. 503

(BIA 1996)

I also emphasized that the canons require us to avoid interpretations which

raise questions of constitutional infirmity. For example, we must be mindful

to give a restrictive meaning to a provision “if a broader meaning would generate constitutional doubts.” United States v. Witkovich, 353 U.S. 194, 199

(1957); see also Lyng v. Northwest Indian Cemetery Protective Ass’n, 485

U.S. 439, 445-46, (1988).

B. Application of the Transition Rules to the

Respondent Is Improper

The question before us in this case is whether we can apply the

transition rules to an individual who has not been convicted of an aggravated

felony, who was never incarcerated as the result of a criminal sentence,

who was never taken into custody by the Service upon release from incarceration, and who has never even been held in Service detention. Compare

IIRIRA § 303(b) with AEDPA § 440(c). Again, while this lawfully admitted

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respondent, by virtue of the majority decision in this case, now becomes subject only to increased scrutiny under a standard which shifts the burden to

him, the ramifications of the majority’s decision are far more broad.

Today, an affirmative answer means the imposition of a more harsh standard for release should the Service revoke the bond of an alien deportable on

criminal grounds, as it has done here. Tomorrow, it means mandatory detention for such a respondent, since the transition rules are just that—rules to

ease a transition to a system of mandatory custody of any alien convicted of a

criminal offense or charged with a security violation which renders him

deportable.

In both Matter of Noble, supra, and in the case before us today, the majority has laid the predicate for a broad and overreaching interpretation, ultimately paving the way to detain, without any hope of release, any alien ever

convicted of any crime at any time. This adversely affects both longtime lawful residents and other applicants of long residence or significant equities

who qualify for discretionary relief. Such mandatory detention will be

imposed without regard to either their convictions or their circumstances,

including whether we would ultimately find them exceptionally qualified to

remain as a member of our society. See, e.g., Matter of Pena-Diaz, 20 I&N

Dec. 841 (BIA 1994) (granting suspension of deportation to an alien with a

several year old drug conviction, who was not lawfully admitted, on the basis

of his lengthy residence of 18 years and strong family ties, which were found

to constitute exceptional and extremely unusual hardship).

This increasing encroachment on the liberty interests of such aliens raises

critical questions concerning our interpretation of the reach of the transition

rules. See Landgraf v. USI Film Products, 511 U.S. 244, 280-81 (1994). To

determine the amendment’s effect in the instant case we turn once again to

the language of the statute.

The thrust of the dissent in Matter of Noble, supra, is that the statutory language itself is expressly prospective as to whom it applies, and that by its

terms, the statute limits a retroactive application of the transition rules,

except where specifically provided by the language of the statute itself. In

fact, the statute refers to section 440(c) of the AEDPA, which previously

governed the release of most criminal aliens, as now having been replaced

“instead,” by the transition rules which were activated effective October 9,

1996. Thus, the IIRIRA provides specifically for a discrete retroactive application, indicating that Congress is perfectly capable of indicating quite

clearly a retroactive application when Congress desires one. See IIRIRA

§ 303(b).

The silence of the statute with regard to any other retroactive impact upon

conduct or events which already have taken place is significant. Nothing in

the text or the legislative history of the AEDPA, and nothing underlying

enactment of sections 303(b)(3)(A) and (B) of the IIRIRA, indicates that

either section should be applied retroactively to pending cases or

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pre-amendment circumstances other than as specified. There is no basis to

conclude that this silence was due to an “accident of draftsmanship.” INS v.

Phinpathya, 464 U.S. 183, 191 (1984).

As recognized consistently by the Supreme Court, retroactivity is not

favored in the law. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208

(1988). A presumption against retroactivity generally is consistent with legislative and public expectations as a safeguard against unfairness. Landgraf,

supra, at 270-71 (citing United States v. Heth, 7 U.S. (3 Cranch) 399, 413

(1806), for the proposition that the Supreme Court has long declined to give

retroactive effect to statutes burdening private rights unless Congress has

expressed its intent through “’clear, strong and imperative’” language).

The effort to reconcile the canon that the law to be applied is the law in

effect at the time of adjudication, with the canon that retroactive applications

of the law are disfavored, resulted in the Supreme Court’s decision in

Landgraf. There, the presumption against retroactivity trumped the application of the law in effect at the time of application, when that would offend the

“traditional presumption against applying statutes affecting substantive

rights, liabilities, or duties to conduct arising before their enactment.” Id. at

278. Further, as the dissent in Matter of Noble, supra, makes clear, the canon

that ambiguities in deportation statutes are to be construed in favor of the

alien is particularly relevant in determining the reach of a statute such as this

one.

When faced with a choice between two readings of a deportation-related

provision, the courts and this Board have relied upon the sound principle that

we resolve doubts in statutory construction in favor of the alien. INS v.

Cardoza-Fonseca, 480 U.S. 421, 449 (1987); INS v. Errico, 385 U.S. 214

(1966); Barber v. Gonzales, 347 U.S. 637, 642 (1954); Fong Haw Tan v.

Phelan, 333 U.S. 6, 10 (1948); Matter of Tiwari, 19 I&N Dec. 875, 881 (BIA

1989). To my knowledge this canon operates with equal force as the other

canons, as no hierarchy of canons exists which relegates this canon to a position of less significance in our analysis. The majority nevertheless chose to

persist in rationalizing what ultimately, to my mind, is a retroactive application of a prospective provision whose language reflects it was intended to

apply to events occurring in the future.

In the past 6 months, over 10 federal courts have found, contrary to the

thesis advanced by the majority, that applying the amended rules to an alien

such as the respondent not only offends constitutional considerations, but

results in an impermissibly retroactive application. Most recently, in United

States v. Igbonwa, No. 90-375-1, 1996 WL 694178, at 3 (E.D.Pa. 1996), the

court stated in no uncertain terms, “The key issue is whether . . . the revised

statute, mandating detention, may be retroactively imposed.” The court

determined that given the “strong presumption against giving retroactive

effect to statutes burdening private rights, unless Congress has made clear its

intent[,] [citing Landgraf] . . . the pre-AEDPA version of [the statute] should

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apply . . . .” Id. In addition, in DeMelo v. Cobb, 936 F. Supp. 30 (D. Mass.

1996), the court found it improperly retroactive to apply section 440(c) of the

AEDPA to the case of an alien who both was convicted and served his sentence prior to its effective date.

Furthermore, in Montero v. Cobb, 937 F. Supp. 88 (D. Mass. 1996), the

court found that an alien who had been convicted of a controlled substance

violation in 1981 and released from incarceration prior to enactment of the

AEDPA, and who was taken into custody and detained by the Service on April

18, 1996, was not precluded by section 440(c) of the AEDPA from a bond

hearing to determine if release was appropriate. In Villagomez v. Smith, No.

C96-1141C, 1996 WL 622451 (W.D. Wa. July 31, 1996), the court found

“straightforward" the language mandating that the Attorney General shall

take into custody any alien “upon release from incarceration,” and ordered the

permanent resident, who already had served his sentence for a 1989 conviction for possession of heroin before the enactment of AEDPA, released from

custody. See also Flanigan v. Reno, 96-6179-WJR (E) (C.D. Cal. Oct. 1,

1996); Grodski v. Reno, No 1:96-cv-2302-ODE (N.D. Ga. Sept. 20, 1996);

Almaguer-Almaguer v. Reno, No. 96 C 5637 (N.D. Ill. Sept. 6, 1996).

In the absence of an express retroactive provision, and given the considerations discussed above, I do not believe that even under our decision in Matter of Noble, supra, the application of the transition rules to this respondent is

authorized. Furthermore, I am unpersuaded by the analysis relied upon by the

majority in reaching its conclusion that no retroactive application of the law,

such as those discussed in Landgraf, exists here.

What is at issue here is the respondent’s right not to be detained subject to

a provision whose language does not apply to his circumstances. This respondent is a lawfully admitted resident who lived here since infancy. Although

he was convicted of an offense, his conviction predated enactment of both the

AEDPA and the IIRIRA, his conviction was not an aggravated felony, he

never was incarcerated for it, and he has remained at liberty in his community. Yet the majority insists that now he must be held subject to a standard

which presumes that he shall be maintained in detention.

The interpretation proposed by the dissent in Matter of Noble, supra,

would have avoided these problems. As we stated in Matter of A-A-, supra, it

is not merely whether a new law is prospective in operation, but whether its

terms otherwise set limitations on the scope of its temporal application. Id. at

499. In assessing the applicability of the transition rules, the better course is

to acknowledge that the terms of the statute nowhere indicate a retroactive

application of the sort reached by the majority. Instead they are expressly

prospective, applying only to persons who are taken into custody by the

Attorney General once released from incarceration after the relevant effective dates. Prudence dictates that the additional restrictions on liberty contained in the amendments be limited to such persons.

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