Interim Decision #3417

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In re Adewunmi ADENIJI, Respondent

File A41 542 131 - York

Decided November 3, 1999

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Section 236(c) of the Immigration and Nationality Act, 8 U.S.C.

§ 1226(c) (Supp. II 1996), does not apply to aliens whose most

recent release from custody by an authority other than the

Immigration and Naturalization Service occurred prior to the

expiration of the Transition Period Custody Rules.

(2) Custody determinations of aliens in removal proceedings who are

not subject to the provisions of section 236(c) of the Act are

governed by the general custody provisions at section 236(a) of the

Act.

(3) By virtue of 8 C.F.R. § 236.1(c)(8) (1999), a criminal alien in

a custody determination under section 236(a) of the Act must

establish to the satisfaction of the Immigration Judge and the

Board of Immigration Appeals that he or she does not present a

danger to property or persons.

(4) When an Immigration Judge bases a bond determination on

evidence presented in the underlying merits case, it is the

responsibility of the parties and the Immigration Judge to ensure

that the bond record establishes the nature and substance of the

specific factual information considered by the Immigration Judge

in reaching the bond determination.

Michael Maggio, Esquire, Falls Church, Virginia, for respondent

Interim Decision #3417

Brett M. Parchert, Appellate

Naturalization Service

Before:

Counsel,

for

the

Immigration

and

Board En Banc:

DUNNE, Vice Chairman; SCIALABBA, Vice

Chairman; HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON,

JONES, and MILLER, Board Members.

Concurring and

Dissenting Opinion: ROSENBERG, Board Member. Dissenting

Opinions: SCHMIDT, Chairman; joined by VACCA, VILLAGELIU,

and GUENDELSBERGER, Board Members; GRANT, Board Member,

joined by MOSCATO, Board Member.

FILPPU, Board Member:

The Immigration and Naturalization Service has appealed the

Immigration Judge’s March 10, 1998, bond decision ordering the

respondent released on his own recognizance.

The Immigration

Judge’s bond decision was based on the Transition Period Custody

Rules (“Transition Rules” or “TPCR”) enacted by 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 (“IIRIRA”).

See Matter of Noble, 21 I&N Dec. 672 (BIA

1997). The Transition Period Custody Rules have expired, however,

and a number of issues arise by virtue of that expiration.

ISSUES

The principal issues before us concern the following:

1) Whether we have jurisdiction over a bond appeal when

the underlying order was rendered during the existence of

the Transition Rules;

2) Whether the respondent is currently subject to

mandatory detention under section 236(c) of the Immigration

and Nationality Act, 8 U.S.C. § 1226(c) (Supp. II 1996), in

the wake of the expiration of the Transition Rules;

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3) Whether the respondent, if he is not subject to

mandatory detention, must show that he is not a danger to

property or

persons in order to obtain bond under the

general bond provisions of section 236(a) of the Act; and

4) Whether we may look to the record in the underlying

merits case (that is also on appeal to the Board) to find

support for the Immigration Judge’s bond ruling, where the

allegedly relevant material was not introduced into the

bond record before us.

As we explain in detail below, we find that we have continuing

jurisdiction over this bond appeal. On the issue of whether the

respondent is subject to mandatory detention, we accept the view

currently advanced by both parties that the respondent’s custody

proceedings are governed by the general bond provisions of section

236(a) of the Act and that the criminal alien bond provisions of

section 236(c) do not apply because the respondent was released from

criminal custody prior to the expiration of the Transition Rules.

Under our case law addressing general bond provisions of prior law,

an alien ordinarily would not be detained unless he or she presented

a threat to national security or a risk of flight. See Matter of

Patel, 15 I&N Dec. 666 (BIA 1976). But we agree with the parties’

conclusions that an assessment of the alien’s danger to property or

persons is a relevant consideration under section 236(a) of the Act,

even though we differ with regard to the reasons for that

conclusion. In this respect, we find the regulation at 8 C.F.R.

§ 236.1(c)(8) (1999) to be controlling. See Matter of Drysdale, 20

I&N Dec. 815 (BIA 1994). Finally, we find that a remand of this

case is necessary to develop the record further to determine whether

the respondent, a criminal alien, poses a danger to property or

persons or is a flight risk, because we consider it inappropriate to

look to portions of the record in the merits appeal that were not

referenced in or made part of the bond record.

II.

PROCEDURAL HISTORY

A Notice to Appear (Form I-862) was issued on April 17, 1997,

charging the respondent with removability under section 237(a)(1)(A)

Interim Decision #3417

of the Act, 8 U.S.C. § 1227(a)(1)(A) (Supp. II 1996), as an alien

who was inadmissible at the time of his entry as a lawful permanent

resident.

The Service alleged two underlying grounds of

inadmissibility.

First, it charged that the respondent was

inadmissible under section 212(a)(9)(A)(i) of the Act, 8 U.S.C.

§ 1182(a)(9)(A)(i) (Supp. II 1996), as an alien who had been ordered

removed and had sought admission in 1987 within 5 years of removal

without obtaining prior consent from the Attorney General to reapply

for admission.

Second, the Service charged the respondent with

inadmissibility under section 212(a)(6)(C)(i) of the Act for having

procured his immigrant visa by fraud or willful misrepresentation

because he failed to disclose that he had been arrested and

deported.

In addition, on December 4, 1997, the Service charged the

respondent under section 237(a)(2)(A)(iii) of the Act as an alien

convicted of an aggravated felony, as defined in sections

101(a)(43)(G), (M), and (U) of the Act, 8 U.S.C. §§ 1101(a)(43)(G),

(M), (U) (Supp. II 1996).

This charge was based upon the

respondent’s conviction on December 27, 1996, and sentence to

imprisonment of 1 year and 1 day, for the offense of conspiracy to

commit bank fraud through acts intended to fraudulently withdraw a

total of $18,300 from the bank accounts of two other persons.

On March 10, 1998, the Immigration Judge found the respondent

removable as an aggravated felon under section 237(a)(2)(A)(iii) of

the Act and granted him withholding of removal under section

241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3) (Supp. II 1996). The

Immigration Judge then conducted a bond hearing and ordered the

respondent released on his own recognizance. The Service appealed

both rulings. We address the bond appeal in this decision.

III.

POSITIONS OF THE PARTIES

We requested supplemental briefs and held oral argument on the

issue of the respondent’s continued eligibility for release after

the expiration of the Transition Period Custody Rules. Immediately

prior to oral argument, the Service reversed its position and argued

that section 236(c) of the Act requires mandatory detention of a

Interim Decision #3417

criminal alien only if he or she was released from criminal custody

after October 8, 1998, the last day that the Transition Period

Custody Rules were in effect.

The Service further argued that it is appropriate to consider

whether the alien is a danger to the community, and that cases such

as Matter of Drysdale, supra, and Matter of Andrade, 19 I&N Dec. 488

(BIA

1987),

are

relevant

criminal

alien’s

custody

determination, even under the general bond provisions set forth in

section 236(a) of the Act. Applying those factors here, the Service

requests that we uphold the district director’s decision refusing to

release the respondent on any bond condition or, alternatively, that

we set a substantial bond.

Because of the Service’s change in position, the parties are in

agreement on the dispositive issues except the amount of bond. The

respondent agrees that section 236(a) of the Act should govern and,

at oral argument, agreed that any threat posed to the community is

a relevant consideration where the bond record contains evidence of

criminal or terrorist activity.

In a postargument brief, the respondent asserts that we should

consider in this bond appeal the Immigration Judge’s reasons for

granting withholding of removal, as set forth in the merits decision

in the underlying removal proceedings. The respondent argues that

the Immigration Judge’s reasons for granting withholding of removal

had a bearing on the custody ruling.

Finally, at oral argument, the respondent questioned whether we

have continuing jurisdiction over this bond appeal, suggesting that

a bond determination made under the Transition Period Custody Rules

is not a custody determination pursuant to 8 C.F.R. § 236.1.

IV.

CONTINUING JURISDICTION OVER THE INSTANT APPEAL

We have appellate jurisdiction over bond rulings of Immigration

Judges by virtue of 8 C.F.R. §§ 3.1(b)(7), 3.19(f), and

236.1(d)(3)(i) (1999).

Notwithstanding any lack of clarity

regarding appeals of Transition Rule bond orders in the current

versions of 8 C.F.R. § 236.1(c) or § 236.1(d)(1), the initial

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regulations to implement the IIRIRA intended, with respect to

criminal aliens who fell under the Transition Period Custody Rules,

to retain the prior structure for Immigration Judge bond

redeterminations and appeals. See 62 Fed. Reg. 444, 450 (Jan. 3,

1997) (noting, with regard to proposed rulemaking to implement the

IIRIRA, that “the proposed rule essentially preserves the status quo

for bond determination by the Service and bond redetermination

proceedings before immigration judges”); 62 Fed. Reg. 10,312, 10,323

(Mar. 6, 1997) (rejecting a commenter’s assertion that “it was not

the intention of Congress that EOIR continue to exercise bond

redetermination authority under the Transition Rules”).

Importantly, at the time of the respondent’s bond redetermination

hearing and the Service’s appeal, 8 C.F.R. § 236.1(c)(1)(ii) (1998)

provided that “[w]hile the Transition Period Custody Rules remain in

effect, this paragraph and paragraph (d) of this section shall be

subject to those Rules.” (Emphasis added); see also 62 Fed. Reg.

15,362, 15,363 (1997). We understand this provision to incorporate

the Transition Period Custody Rules into the existing regulatory

structure for district director bond determinations, Immigration

Judge bond redeterminations, and appeals to the Board. Subsequent

to the respondent’s bond hearing and the filing of this appeal, more

detailed bond regulations were promulgated. But these regulations

also envisioned some Immigration Judge bond adjudications under the

Transition Rules, as well as appeals to us. 63 Fed. Reg. 27,441

(1998); 8 C.F.R. § 3.19(f).

The absence of a reference to the

Transition Rules in 8 C.F.R. § 236.1(d)(1), therefore, does not

reflect an intent to completely remove jurisdiction over Transition

Rule bond cases from either Immigration Judges or the Board.

Our appellate jurisdiction over this case has not been extinguished

by a change in the substantive bond law that was applied by the

Immigration Judge.1

We have independent authority to assess the

We would, however, lack jurisdiction to order the respondent

released on bond were we to find that he is subject to the mandatory

detention provisions of section 236(c) of the Act, as the

regulations do not allow Immigration Judge custody redeterminations

in such cases. 8 C.F.R. § 3.19(h)(2)(i)(D). However, we agree that

(continued...)

Interim Decision #3417

record and make our own bond determination under the current law.

Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). A remand might be

necessary if the factors relevant to bond under the current law were

not those that were germane at the time of the hearing before the

Immigration Judge, or if, as here, there were other defects in the

way the factors were applied below. See Matter of Noble, supra, at

686.

Furthermore, it does not appear that the dispute has become moot.

We have been informed that on July 22, 1999, the district director

issued an order (evidently pursuant to the Service’s new

interpretation of the statute) requiring that the respondent

continue to be detained without bond.

On July 26, 1999, the

Immigration Judge entered an order declaring that the Service’s new

determination did not provide a reason for the Immigration Judge to

alter his earlier decision releasing the respondent on his own

recognizance. Under these circumstances, the dispute between the

parties persists. Although some of the issues have changed, neither

party asserts that this appeal is moot by virtue of the Service’s

new legal position or by virtue of its subsequent review and

reaffirmation of its ultimate conclusion that the respondent should

be detained without bond. Matter of Valles, 21 I&N Dec. 769 (BIA

1997).

APPLICABILITY OF SECTION 236(c) FOLLOWING EXPIRATION

OF THE TRANSITION RULES

The Transition Period Custody Rules were invoked by the Attorney

General pursuant to section 303(b)(2) of the IIRIRA, 110 Stat. at

3009-586, which provides:

NOTIFICATION REGARDING CUSTODY.—If the Attorney General,

not later than 10 days after the date of the enactment

of this Act, notifies in writing the Committees on the

Judiciary of the House of Representatives and the Senate

that there is insufficient detention space and

(...continued)

the respondent is not subject to mandatory detention.

Interim Decision #3417

Immigration

and

Naturalization

Service

personnel

available to carry out section 236(c) of the Immigration

and Nationality Act, as amended by subsection (a), or

the amendments made by section 440(c) of Public Law 104132, the provisions in paragraph (3) shall be in effect

for a 1-year period beginning on the date of such

notification,

instead

such

section

such

amendments. The Attorney General may extend such 1-year

period for an additional year if the Attorney General

provides the same notice not later than 10 days before

the end of the first 1-year period. After the end of

such 1-year or 2-year periods, the provisions of such

section 236(c) shall apply to individuals released after

such periods.

The IIRIRA was enacted on September 30, 1996. On October 9, 1996,

within the 10-day period specified by section 303(b)(2) of the

IIRIRA, the Attorney General, through the Commissioner of the

Service, made the necessary notifications.

The Attorney General

subsequently invoked the additional 1-year extension allowed under

section 303(b)(2) of the IIRIRA. The additional 1-year extension

expired at the end of the day on October 8, 1998. The Transition

Rules themselves specified that they would only control criminal

alien custody determinations “[d]uring the period in which this

paragraph is in effect pursuant to paragraph (2),” as quoted above.

IIRIRA § 303(b)(3)(A). The statute contains no explicit savings

clause pertaining to the Transition Period Custody Rules, and we

agree with the parties that those rules expired at the end of their

second year.

Section 236(c) of the Act would have become effective on April 1,

1997, had the Attorney General not invoked the Transition Rules, and

thus would have governed the release of covered criminal aliens

during the course of removal proceedings on or after April 1, 1997.

Section 236(c) provides in relevant part as follows:

(1)

CUSTODY.—The Attorney General shall take into

custody any alien who—

(A) is inadmissible by reason of having committed

any offense covered in section 212(a)(2)[1182],

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(B) is deportable by reason of having committed any

offense covered in section 237(a)(2)(A)(ii), (A)(iii),

(B), (C), or (D)[1227],

the basis of an offense for which the alien has been

sentence[d] to a term of imprisonment of at least 1

year, or

(D) is inadmissible under section 212(a)(3)(B) or

deportable under section 237(a)(4)(B),

when the alien is released, 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.

(2) RELEASE.—The Attorney General may release an alien

described in paragraph (1) only if the Attorney General

decides . . . that release of the alien from custody is

necessary [for certain witness protection matters], and

the alien 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.

The respondent makes two interrelated arguments opposing the

application of section 236(c) to his current situation. He attacks

our decision in Matter of Noble, supra, contending that the literal

language of section 236(c) provides for its application to an alien

only if the Service immediately takes custody of the alien “when the

alien is released” from criminal incarceration (the “when released”

language).

Additionally, the respondent, now supported by the

Service, contends that the last sentence of section 303(b)(2) of the

IIRIRA makes section 236(c) applicable only to individuals released

from criminal custody after the expiration of the 2-year period

during which the Transition Rules were in effect (the “released

after” language). We need not address at this time the respondent’s

arguments respecting Matter of Noble and the “when released” clause,

Interim Decision #3417

as we accept the parties’ construction of the “released after”

clause in the last sentence of section 303(b)(2).2

Proper statutory construction must begin with the words used by

Congress. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). As

previously noted, the last sentence of section 303(b)(2) of the

IIRIRA provides that after the end of the transition period, “the

provisions of such section 236(c) shall apply to individuals

released after such periods.”

We confronted the meaning of this sentence in Matter of Noble

without coming to any resolution on how it should be construed. We

do not believe that this last sentence of section 303(b)(2),

standing alone, is free from uncertainty. The natural sense of the

words, at first glance, would seem to point in the direction

presently advanced by the parties. But the term “released” 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.

In our judgment, additional language is needed to clarify the

sentence. The parties now propose that this sentence should be read

to say that “the provisions of such section 236(c) shall apply to

individuals released [from criminal custody] after such periods.”

The reading previously given this sentence, by a three-member panel

of the Board in a series of unpublished cases, is not the one now

advanced. Those unpublished cases construed the sentence to say

that “the provisions of such section 236(c) shall apply to

individuals [seeking to be] released after such periods.”

The difference is profound. The reading in our unpublished cases

extends the mandatory detention provisions of section 236(c) to any

covered criminal or terrorist alien in Service detention after the

Given the construction of the “released after” sentence that we

adopt today, the effect of the “when released” clause would appear

to be of concern principally in the case of an alien who was

released from criminal custody after the expiration of the

Transition Rules, but who was not promptly taken into Service

custody.

Interim Decision #3417

expiration of the Transition Rules. The parties’ proposed reading,

on the other hand, 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. This

would permit bond for all aliens released from nonService custody

before the Transition Rules expired, even if those aliens were not

eligible for bond during the life of the Transition Rules

themselves.3

The meaning assigned to the last sentence of section 303(b)(2)

should be the one that emerges from a reading of the statute as a

whole, taking into account its object and policy. John Hancock Mut.

Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94-95 (1993).

Minor gaps in a statute should be filled by extrapolating from the

statute’s general design. See United States v. Jackson, 390 U.S.

570 (1968).

In Matter of Noble, supra, we expressed a reluctance to adopt the

meaning of this “released after”sentence that the parties propose

today.

We saw it as providing criminal and terrorist aliens a

“springing” opportunity for release from Service custody under

lenient standards not applicable to some of those aliens for

approximately a decade. For example, an aggravated felon who has

not been lawfully admitted has never been eligible for release,

under the permanent provisions of the statute and during the

pendency of proceedings, since mandatory detention was first

introduced in the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

102 Stat. 4181 (“ADAA”). See ADAA § 7343, 102 Stat. at 4470; see

also Immigration Act of 1990, Pub. L. No. 101-649, § 504, 104 Stat.

As indicated earlier, we accept the reading of the statute

advanced by the parties. This change from the approach taken in our

unpublished panel rulings could very well alter the results in some

of those earlier panel decisions. Under our decision in Matter of

Valles, supra, aliens affected by those panel dispositions are not

required to seek reopening from the Board before seeking a new bond

redetermination from an Immigration Judge. In this respect, our

ruling today amounts to a material change in circumstances under

8 C.F.R. § 3.19(e), such that a reexamination of bond by Immigration

Judges may be warranted.

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4978, 5049 (“1990 Act”); Miscellaneous and Technical Immigration and

Naturalization Amendments of 1991, Pub. L. No. 102-232, § 306, 105

Stat. 1733, 1751 (effective as if included in the 1990 Act).

Even under the temporary Transition Period Custody Rules, an

aggravated felon who was not lawfully admitted remained barred from

release unless it was established that he or she was not a danger to

persons or property, was not a flight risk, and would not be

accepted

the

country

designated

for

removal.

IIRIRA

§ 303(b)(3)(B)(ii). Under the position advanced by the parties,

such an aggravated felon would now suddenly be eligible for bond so

long as the alien’s release from criminal custody occurred prior to

the expiration of the Transition Rules. And this would be true even

if that same felon already had been in Service custody for many

months because bond was not available under the Transition Rules.

If this were the end of the analysis, we would have substantial

difficulty accepting the proffered construction in view of the

overall structure of the IIRIRA’s custody provisions, as well as the

historical context of the similar provisions that were being

replaced.

In Matter of Noble, supra, at 682, we found it

incomprehensible that Congress could have intended that such an

alien be released after the expiration of the Transition Rules,

without any consideration of his or her dangerousness, at the same

time that Congress was mandating the detention of criminal aliens.

The Transition Rules were not intended as a benefit to criminal or

terrorist aliens, but rather as a temporary postponement of

stringent custody requirements if the Service was not immediately

able to carry out its obligations under the permanent law. It would

be anomalous to deem the expiration of the Transition Rules and the

concomitant conversion to the stringent permanent law to be the

occasion upon which Congress relaxed the rigors of the bond

provisions through increased generosity toward all criminal aliens

in Service custody on the date of that expiration.

There is, however, a scenario under which the parties’ proposed

reading of the last sentence of section 303(b)(2) makes sense in

view of the legislation as a whole, notwithstanding the various

unexpected results flowing from that reading. See Matter of Noble,

supra, at 681-83. Congress enacted the Transition Rules knowing

that the Service might lack the capacity to enforce the permanent

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rules. That lack of capacity might not be fully rectified during

the 2-year Transition Period.

It therefore would make sense to

apply the permanent rules to persons coming into Service custody

after the Transition Period ended, and to continue to apply the

Transition Rules to persons who had been subject to them during

their existence.

This would lead to no anomalous “springing”

opportunities to obtain bond for criminal aliens, such as aggravated

felons who never were lawfully admitted and whose detention had been

required under the Transition Rules.

The problem is that Congress did not enact a savings clause for the

Transition Rules. And we consider it beyond our authority to treat

the IIRIRA, even implicitly, as containing one.

We have doubts

whether Congress intended one at all, let alone what its precise

terms might have been. That doubt is reinforced to the extent that

sudden bond eligibility arises for certain categories of aliens

under the parties’ reading of the statute.

We consequently perceive tension between the language of the last

sentence of section 303(b)(2) and the overall thrust of the IIRIRA.

Nevertheless, the parties’ reading of the statute is not

unreasonable, in light of its exact terms and the uncertainty we

experience in discerning how Congress expected this provision to

operate. Further, the district courts around the country have not

agreed with the construction of the statute contained in our

unpublished panel rulings. In response to these court decisions,

the Service has changed its own view of the statute and has

implemented that change in its own bond adjudications.

At oral

argument, the Service indicated that there were no plans to

challenge these federal district court decisions in the courts of

appeals.

See Matter of Silva, 16 I&N Dec. 26, 29-30 (BIA 1976)

(acceding to a construction of section 212(c) of the Act, 8 U.S.C.

§ 1182(c) (1976), under generally similar circumstances); see also

id. at 32-33 (Appleman, concurring).

In this case, the natural sense of the language in question points

to the construction jointly supported by the parties.

That

interpretation of the “released after” language in the last sentence

of section 303(b)(2) of the IIRIRA would not be inconsistent with

the legislation as a whole if Congress intended, but neglected, to

include a savings clause pertaining to persons who were subject to

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the Transition Period Custody Rules during their existence. In such

circumstances, any unexpected results would arise from the absence

of the savings clause. In the end, we have found little that helps

us determine what Congress actually intended when it adopted the

language in that last sentence.

In sum, we are uncertain of the intent behind the “released after”

language and agree that its natural sense supports the parties’

reading. While the statute as a whole raises questions about that

reading, we cannot rule out the possibility that the answer lies in

a failure to enact a savings clause for persons subject to the

Transition Rules. Consequently, we are able to accept the parties’

reading when we factor in the district court rulings rejecting our

prior construction, the Service’s reversal of its own position, and

the Service’s decision not to pursue the litigation in the court

cases. Given this overall set of circumstances, we find that the

respondent is 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.

VI.

STANDARDS GOVERNING BOND

We agree with the parties that the general bond provisions of

section 236(a) govern bond for the respondent at present.

The

parties further agree that the respondent must show that he is not

likely to abscond, is not a threat to the national security, and is

not a threat to the community, in keeping with our decision in

Matter of Drysdale, supra. The “threat to the community” test in

Drysdale followed the then-existing statutory language applicable to

bond for criminal aliens.

Some similar test would seem to be

warranted for criminal aliens who were previously covered by the

Transition Rules, particularly if their eligibility for release

under the general bond provisions of section 236(a) stems, in part,

from the absence of a savings clause that continues the Transition

Rules for persons once subject to those rules.

There is, moreover, a regulation that we deem applicable to this

situation, 8 C.F.R. § 236.1(c)(8) (1999), which provides, in

relevant part, as follows:

Interim Decision #3417

Any officer authorized to issue a warrant of arrest may, in

the officer’s discretion, release an alien not described in

section 236(c)(1) of the Act, under the conditions at

section 236(a)(2) and (3) of the Act; provided that the

alien must demonstrate to the satisfaction of the officer

that such release would not pose a danger to property or

persons, and that the alien is likely to appear for any

future proceeding.

An Immigration Judge is not authorized to issue a warrant of arrest.

Nevertheless, 8 C.F.R. § 3.19(a) incorporates substantive aspects of

the bond regulations governing the Service, and provides that

“[c]ustody and bond determinations made by the service [sic]

pursuant to 8 C.F.R. part 236 may be reviewed by an Immigration

Judge pursuant to 8 C.F.R. part 236.”

At oral argument, the Service expressed the view that 8 C.F.R.

§ 236.1(c)(8) became inapplicable, along with all the provisions of

§ 236.1(c)(2) through (8), upon expiration of the Transition Rules.

The Service’s view was based on the first sentence of 8 C.F.R.

§ 236.1(c)(1)(ii), which provides that “[p]aragraph (c)(2) through

(c)(8) of this section shall govern custody determinations for

aliens subject to the TPCR while they remain in effect.”

At first blush, the regulatory language would suggest that

paragraph (c)(8) died with the Transition Rules.

But 8 C.F.R.

§ 236.1(c)(1)(ii) does not actually say that paragraph (c)(8) loses

all force upon expiration of the Transition Rules.

Rather, it

simply states that it governs Transition Rule cases during the

existence of the Transition Rules.

It says nothing about how

paragraph (c)(8) is to apply if the alien in question is not subject

to the Transition Rules, either because those rules never applied to

the alien or because they have now expired.

Importantly, the text of paragraph (c)(8) itself is not in any way

restricted to Transition Rule aliens. Indeed, the text suggests

just the opposite, as it applies to aliens “not described in section

236(c)(1) of the Act,” many of whom will simply be aliens described

in section 236(a), the general bond provision.

The regulatory

history confirms that paragraph (c)(8) was intended to have broader

Interim Decision #3417

application than merely being applicable during the existence of the

Transition Rules.

The substance of paragraph (c)(8) was promulgated as 8 C.F.R.

§ 236.1(c)(2) at the time that regulations implementing the IIRIRA

were first adopted in 1997.

62 Fed. Reg. at 10,360; 8 C.F.R.

§ 236.1(c)(2) (1998).

That this was intended to be part of the

permanent regulations is suggested not only by the text of the

paragraph, but also by the commentary that accompanied its

promulgation. See 62 Fed. Reg. at 10,323 (“The Department intends

to issue a separate proposed rule in the near future establishing

both substantive limitations and procedural safeguards concerning

the release of criminal aliens eligible to be considered for release

under the Transition Rules.”).

Proposed and final rulemaking,

focusing principally on the Transition Period Custody Rules, did

follow. 62 Fed. Reg. 48,183-87 (Sept. 15, 1997) (proposed rules);

63 Fed. Reg. 27,441-50 (May 18, 1998) (final rules). It was the

May 19, 1998, final rules that redesignated paragraph (c)(2) as

(c)(8), where it now appears. 63 Fed. Reg. at 27,449.

It was also that May 19, 1998, regulatory package that added

8 C.F.R. § 236.1(c)(1)(ii), providing that “[p]aragraph (c)(2)

through (c)(8) . . . shall govern custody determinations for aliens

subject to the TPCR while they remain in effect.” 63 Fed. Reg. at

27,449. The addition of this language, however, does not alter the

fact that the pertinent portion of paragraph (c)(8) was part of the

original rulemaking package to implement the permanent provisions of

the IIRIRA.

From the outset, therefore, the regulations under the IIRIRA have

added as a requirement for ordinary bond determinations under

section 236(a) of the Act that the alien must demonstrate that

“release would not pose a danger to property or persons,” even

though section 236(a) does not explicitly contain such a

requirement.

This test is certainly akin to the “threat to the

community” test contained in Matter of Drysdale, supra, which the

parties agree should apply in the case of this respondent. We deem

the regulatory provision at 8 C.F.R. § 236.1(c)(8) (1999) to contain

the appropriate test, as it is binding on us and pertains directly

to removal proceedings under the IIRIRA.

Consequently, to be

eligible for bond, the respondent must demonstrate that his “release

Interim Decision #3417

would not pose a danger to property or persons, and that [he] is

likely to appear for any future proceeding.” Id.

VII.

RESPONDENT’S REQUEST FOR RELEASE FROM CUSTODY

In a memorandum of decision dated April 21, 1998, the Immigration

Judge set forth the reasons for his March 10, 1998, order releasing

the respondent on his own recognizance.

The Immigration Judge

considered the respondent’s dangerousness and risk of flight. Those

same factors are relevant considerations in assessing the

respondent’s request for release from custody today under section

236(a) of the Act.

The bond record reflects that the respondent was ordered deported

in 1983.

In 1984, the respondent filed a nonimmigrant visa

application while residing in Nigeria. Later that year, he entered

the United States as a nonimmigrant.

After overstaying his

authorized admission, the respondent married a United States

citizen. The respondent returned to Nigeria in 1985. In 1986, he

applied for an immigrant visa.

During the course of the

respondent’s interview, it was discovered that the respondent

obtained his 1984 nonimmigrant visa by willfully misrepresenting

material facts unrelated to his prior deportation.

He was

nevertheless granted a waiver. At that time, it had not yet been

discovered that the respondent was the same individual who had been

ordered deported in 1983, and the respondent did not seek or obtain

permission to reenter the United States after deportation.

In 1990, after he had immigrated, the conditional basis of his

permanent resident status was removed. The respondent was later

divorced from his petitioning spouse.

In 1993, he married his

present spouse, a native of Nigeria. The respondent and his current

spouse have two United States citizen children. The respondent’s

current spouse has been granted asylum.

On December 27, 1996, the respondent was convicted of the offense

of conspiracy to commit bank fraud. The bond record also indicates

that the respondent was convicted of making false statements to the

Service. The respondent previously alleged that both convictions

Interim Decision #3417

were on appeal, but does not now contest removability based on the

bank fraud conspiracy conviction.

The Immigration Judge’s memorandum of decision contains little

analysis on the issue of the respondent’s danger to property or

persons. The Immigration Judge ruled that the respondent had the

burden of proof on this issue, but that the Service would be

required to rebut an otherwise satisfactory showing by the

respondent.

Nevertheless, the Immigration Judge immediately

proceeded to state that “[t]here is no showing that the respondent

is a danger to persons or property which would necessitate holding

the respondent in Service custody at this point.” This would appear

to place the burden on the Service to show that the respondent posed

such a danger, as the Immigration Judge recounted no evidence that

led him to conclude that the respondent had made a satisfactory

showing requiring rebuttal. The only additional point discussed by

the Immigration Judge involved an observation that the Service did

not consider the respondent’s bank fraud crime to be a “particularly

serious crime” that would bar withholding of removal.

With respect to the risk of flight, the Immigration Judge merely

noted that he had granted the respondent withholding of removal,

reducing the likelihood that the respondent would fail to appear for

any future hearings.

There is little to suggest that the respondent would pose a

physical danger to persons if released. His bank fraud conviction

and history of deceitful behavior, however, make the determination

whether he presents a danger to property a difficult one. In view

of his criminal record and history of other questionable or

deceitful behavior, we do consider him to present a risk of flight

should he lose his case on the merits.

Evidently in an effort to overcome some of the deficiencies in the

record, the respondent asks that we consider the information

presented to the Immigration Judge during the underlying removal

proceeding in connection with this bond appeal.

The respondent

asserts that an Immigration Judge may base a custody determination

on any information that is available, which in this case included

the information presented during the removal hearing.

Custody

proceedings must be kept separate and apart from, and must form no

Interim Decision #3417

part of, removal proceedings. See 8 C.F.R. § 3.19(d). Information

adduced during a removal hearing, however, may be considered during

a custody hearing so long as it is made part of the bond record.

The parties and the Immigration Judge are responsible for creating

a full and complete record of the custody proceeding. In this case,

the Immigration Judge did reference his conclusion in the underlying

removal hearing. But a grant of withholding of removal by itself

would not prevent the Service from attempting to effect removal to

a third country, and the Immigration Judge’s discussion seems to

reflect an incomplete assessment of the risk of flight. Moreover,

we have no way of ascertaining exactly what evidence or other

aspects of the removal hearing may have been deemed pertinent.

Reliance on the removal record, even though it is also pending on

appeal, would require our speculation regarding what, if any,

information from this record may have played a part in the custody

determination. Thus, we will not consider the evidence presented

during the respondent’s removal proceedings, except to the extent

that it is already part of this bond record. In any bond case in

which the parties or the Immigration Judge rely on evidence from the

merits case, it is necessary that such evidence be introduced or

otherwise reflected in the bond record (such as through a summary of

merits hearing testimony that is reflected in the Immigration

Judge’s bond memorandum). Otherwise, it will not be part of the

bond record available for our review on appeal.

As indicated earlier, we have significant concerns regarding the

respondent’s danger to property and his risk of flight.

The

Immigration Judge’s bond assessment is exceptionally sketchy as it

pertains to the evidence in this case.

In fairness to the

respondent, however, the Immigration Judge may well have relied on

undisclosed evidence from the merits hearing in making the bond

determination. Accordingly, we will vacate the Immigration Judge’s

March 10, 1998, bond order, but we will remand the record for

further proceedings to give the respondent an opportunity to make a

more complete record and to allow the Immigration Judge to better

explain the basis for his bond ruling, regardless of the outcome on

remand.

VIII.

CONCLUSION

Interim Decision #3417

Although he has been convicted of an aggravated felony, the

respondent is eligible for consideration for bond under the general

bond provisions of section 236(a)(1) of the Act because he was

released from his criminal custody on or before October 8, 1998.

Pursuant to 8 C.F.R. § 236.1(c)(8), the respondent must demonstrate

that his release would not pose a danger to property or persons, and

that he is likely to appear for any future proceedings.4 A remand

is appropriate because of the manner in which these tests were

applied below. In view of the length of time this bond appeal has

been pending, the Immigration Judge should hold the new bond hearing

promptly.

ORDER: The appeal of the Immigration and Naturalization Service

is sustained.

FURTHER ORDER: The Immigration Judge’s March 10, 1998, bond order

is vacated, and the record is remanded to the Immigration Court for

further proceedings consistent with this decision.

CONCURRING AND DISSENTING OPINION: Lory Diana Rosenberg, Board

Member

I respectfully concur in part and dissent in part.

I agree with the majority’s conclusion that the respondent is not

subject to mandatory detention under section 236(c) of the

Immigration and Nationality Act, 8 U.S.C. § 1226(c) (Supp. II 1996),

because he was not released from criminal incarceration1 “after the

The “threat to national security” test, while still pertinent in

cases under section 236(a) of the Act, is not at issue here.

For clarity's sake, I refer to the time spent in a penal

institution pursuant to the incarceration portion of a criminal

sentence levied under state or federal criminal laws as

“incarceration” or “imprisonment,” and the time spent in a jail or

(continued...)

Interim Decision #3417

expiration of the 2-year period” during which the Transition Period

Custody Rules (“TPCR”) were in force. Matter of Adeniji, Interim

Decision 3417, at 8 (BIA 1999); see also Matter of Noble, 21 I&N

Dec. 672, 680-81 (BIA 1997) (criticizing the concurring and

dissenting opinion for its interpretation of the “released after”

effective date language in 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”), relating to section 236(c) of the Act). I also agree

that whether the respondent poses any danger to persons or property

is a relevant consideration in determining the terms of release from

detention by the Immigration and Naturalization Service under

section 236(a) of the Act. See Matter of Andrade, 19 I&N Dec. 488,

489 (BIA 1987).

I part ways with the majority, however, with

respect to its analysis of the two principal statutory provisions at

issue, and with respect to its decision to remand this case to the

Immigration Judge.

As I discussed in my concurring and dissenting opinion in Matter

of Noble, supra, our interpretation of the statutory phrases

“released after” in section 303(b)(2) of the IIRIRA and “when the

alien is released” in section 236(c) of the Act go hand in hand,

referring, as did earlier statutory language, to the detention of a

noncitizen by immigration authorities once he or she has completed

a period of imprisonment for a criminal conviction. Id. at 695-97

(Rosenberg, concurring and dissenting).

Moreover, while I agree

with the dissenting opinion of Chairman Schmidt that the Immigration

Judge’s decision to release the respondent was based on a proper

evaluation of the relevant bond factors and that “a remand is

pointless,” I find no reason in the “concerns expressed by the

majority,” to increase the amount of bond that must be posted to

secure the respondent’s release beyond the minimum of $1,500

required by the statute. Matter of Adeniji, supra, at 32 (Schmidt,

dissenting); see also section 236(a) of the Act.

(...continued)

detention facility pursuant to the Attorney General's civil

authority under the Immigration and Nationality Act to arrest and

detain aliens believed to be inadmissible or deportable as

“detention” or “custody.”

Interim Decision #3417

I agree with Chairman Schmidt that it is time to decide the

respondent’s bond appeal—which has been pending for well over a

year—and to move on. Nevertheless, for jurisprudential reasons, I

am compelled to address portions of the majority opinion, which I

find to accede so grudgingly to the joint position asserted by the

parties and to give no more than a passing mention to the virtually

unanimous body of federal district court law rejecting our analysis

in Matter of Noble, supra. I also find the dissenting opinion of

Board Member Grant, which appears to challenge the result reached by

the majority and seems to suggest that we should look to some

abstract indicia of congressional intent apart from the plain

language, or a reasonable agency interpretation, of the statute, to

warrant discussion.

DETENTION OF THE RESPONDENT UNDER SECTION 303(b)(2)

OF THE IIRIRA AND SECTION 236(c) OF THE ACT

The Immigration Judge’s redetermination of the respondent’s

detention by the Service originally was subject to the Transition

Period Custody Rules enacted by Congress and activated by the

Attorney General under section 303(b)(3) of the IIRIRA. Applying

this then-controlling statutory authority, the Immigration Judge

ordered the respondent released on his own recognizance, because

“the Service admitted that the respondent’s criminal conviction was

not a ‘particularly serious crime,’” and because of the respondent’s

extensive family ties to the United States (including his wife, who

was granted asylum by the Service, and his two United States citizen

children).

On March 11, 1998, the Board granted the Service’s

motion for a stay of the Immigration Judge’s order resulting from

the bond redetermination, pending our adjudication of the Service’s

appeal from that order.

While the Service’s appeal was pending, the applicable law changed.

The period during which the TPCR were allowed to substitute for the

detention provisions enacted as section 236(c) of the Act expired.

According to the specific language of section 303(b)(2) of the

IIRIRA, Congress provided that section 236(c) of the Act “shall

apply to individuals released after [the expiration of the TPCR on

October 9, 1998].”

Section 236(c) of the Act provides that the

Attorney General shall take into custody any alien who has committed

Interim Decision #3417

or been convicted of certain enumerated crimes “when the alien is

released, 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.”

It is undisputed that the respondent was released from criminal

incarceration well before October 9, 1998. Owing to the passage of

time, the TPCR have expired and our determination of the Service’s

appeal of the Immigration Judge’s bond order is governed by section

236(c) of the Act. The questions before us are whether the terms of

section 236(c) mandate that the respondent remain detained, and if

not, under what standard he may be released from custody.

Plain Language: “Released After” and “When the Alien

Is Released”

A statute’s legislative purpose is expressed by its plain language.

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842-43 (1984); INS v. Phinpathya, 464 U.S. 183, 189

(1984); United States v. American Trucking Ass’ns, 310 U.S. 534, 543

(1940) (ruling that “[t]here is, of course, no more persuasive

evidence of the purpose of a statute than the words by which the

legislature undertook to give expression to its wishes”). We too

recognize that “it is assumed that the legislative purpose is

expressed by the ordinary meaning of the words . . . [and that]

[t]he language of the statute must ordinarily be regarded as

conclusive . . . .” Matter of Noble, supra, at 677 (citing INS v.

Cardoza-Fonseca, 480 U.S. 421, 431 (1987)); see also Matter of M/V

Signeborg, 9 I&N Dec. 6, 7-8 (BIA 1960) (holding that “the language

of the law cannot be enlarged beyond the ordinary meaning of its

terms”).

Notably, in Matter of Noble, supra, at 678, the Board ruled that

“[o]ur reading [of the transition rule statute] comports with a

‘plain meaning’ statutory construction and is wholly consistent with

congressional intent.” See also id. at 694 (Rosenberg, concurring

and dissenting) (agreeing that the language is plain, but

challenging the majority’s interpretation of the language in the

TPCR and section 236(c) of the Act as not comporting with the plain

meaning of the terms in the statute). Given that we unanimously

determined the language of the TPCR to be plain in Noble, I cannot

Interim Decision #3417

now agree with the majority’s assertion that the “last sentence of

section 303(b)(2) . . . is [not] free from uncertainty.” Matter of

Adeniji, supra, at 9.

First, the provisions that we are addressing here are, in effect,

effective date provisions.

See, e.g., Rivera v. Demore, No.

C-99-3042 THE, 1999 WL 521177, at *5 (N.D. Cal. July 13, 1999)

(citing Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994));

Grant v. Zemski, 54 F. Supp.2d 437, 443 (E.D. Pa. 1999); Velasquez

v. Reno, 37 F. Supp.2d 663, 670, 671 n.8 (D.N.J. 1999); see also

Matter of Noble, supra, at 689-92, 694-95 (Rosenberg, concurring and

dissenting); Matter of Valdez, 21 I&N Dec. 703, 720 (BIA 1997)

(Rosenberg, dissenting) (noting that over 10 federal courts had

found, contrary to the thesis advanced by the majority, that

applying the amended rules to an alien previously released from

incarceration not only offended constitutional considerations, but

resulted in an impermissibly retroactive application of the TPCR).

Section 303(b)(2) of the IIRIRA states that “[a]fter the end of such

1-year or 2-year periods [during which the TPCR are effective], the

provisions of such section 236(c) shall apply to individuals

released after such periods.”

(Emphasis added.)

The operative

words, “released after such period,” clearly refer to the period

after the expiration of the TPCR. The temporal limitations in the

statute attached to the use of the word “released” make clear that

the release contemplated by Congress to trigger mandatory custody

under section 236(c) of the Act is prospective; it may only occur

after October 8, 1998, the date on which the provisions of the TPCR

expire.

Second, while the majority concedes that “the natural sense of the

words” in section 303(b)(2) of the IIRIRA supports the construction

proposed by the parties, the majority inexplicably persists in

questioning the use of those words on the basis that “the term

‘released’ is not expressly tied to any other language [that would

clarify whether Congress was referring to a release from criminal

custody or from Service custody].” Matter of Adeniji, supra, at 9.

To the contrary, the context in which this language appears supports

the conclusion that the plain meaning of the words refers to release

from criminal incarceration rather than release from Service

custody.

See K Mart Corp. v. Cartier Inc., 486 U.S. 281, 291

(1988); see also Rivera v. Demore, supra, at *5; Velasquez v. Reno,

Interim Decision #3417

supra, at 670; Pastor Camarena v. Smith, 977 F. Supp. 1415, 1417

(W.D. Wash. 1997).

In particular, Congress’ use of the term

“released” in section 236(c) further illuminates its use of the term

“released” in section 303(b)(2) of the IIRIRA, the provision at

issue here.

See Matter of Noble, supra, at 695-97 (Rosenberg,

concurring and dissenting).

The specific terms of section 236(c) of the Act expressly go on to

broadly construe “when the alien is released” to encompass releases

on “parole, supervised release, or probation, and without regard to

. . . arrest or imprison[ment] again for the same offense.” Section

236(c)(1) of the Act. These types of “release” involve restrictions

that exclusively relate to individuals in the criminal justice

system who have completed a period normally following actual

criminal incarceration. See Cuomo v. Barr, 7 F.3d 17, 18 (2d Cir.

1993) (finding that although “the term ‘release’ is not defined

except as to include ‘parole,’ ‘supervised release,’ and

‘probation,’ . . . [t]he term ‘supervised release’ . . . replaced

the ‘special parole’ which was ‘“a period of supervision served upon

completion of a prison term.”’ Gozlon-Peretz v. United States, 498

U.S. 395, 399 (1991) (quoting Bifulco v. United States, 447 U.S.

381, 388 (1980))” (citations omitted)). What Congress is indicating

by using this limiting language is that a noncitizen is subject to

detention by the Service once his period of incarceration ends and

he is released from actual imprisonment, notwithstanding that he

still may be satisfying the terms of a sentence imposed by a

criminal court.

By contrast, nothing in the Act authorizes such parole, supervised

release, probation, or subsequent arrest or imprisonment as a civil

penalty related to charges of removability. Thus, the clause in

section 236(c) of the Act referring to an alien who is “released”

clarifies that Congress intended the term “released” to refer to

release from criminal incarceration. It follows that in enacting

the TPCR section in the IIRIRA, Congress intended that noncitizens

released from criminal incarceration while the TPCR were in force

would be taken into custody by the Service and detained subject to

the terms of the TPCR, and that those who were released from

criminal incarceration after the TPCR expired would be subject to

being taken into custody by the Service according to the mandatory

detention provisions set forth in section 236(c) of the Act.

Interim Decision #3417

I find mind boggling the majority’s unwillingness to accept the

statutory references to an alien who is taken into custody by the

Attorney General “when released [from criminal incarceration]” under

section 236(c) of the Act, and an alien who is “released [from

criminal incarceration custody] after” the end of the TPCR period,

to whom section 236(c) then would become applicable, as referring to

the same type of “release.”

See Matter of Adeniji, supra, at 8

(emphasis added); Matter of Noble, supra, at 679-80. We have every

reason to presume that Congress intended the same term, “released,”

to be understood similarly in each provision, as “[i]t is axiomatic

that ‘identical words used in different parts of the same act are

intended to have the same meaning.’”

Sale v. Haitian Centers

Council, Inc., 509 U.S. 155, 203 n.12 (1993) (quoting Atlantic

Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)).

In his dissenting opinion, Board Member Grant charges that the

majority makes the one choice that he believes to be manifestly

contrary to the clear intent of Congress, to require detention of

criminal aliens such as the respondent. Board Member Grant contends

that even the majority views its decision as militating “against the

clear design of the statute: to constrain or even eliminate the

capacity of aliens who have committed crimes to remain at liberty.”

Matter of Adeniji, supra, at 34 (Grant, dissenting). He finds this

position inexplicable because he concludes that “[h]ere, there is no

reasonable ground to disagree that, from the enactment of the AEDPA

forward, Congress intended that mandatory detention of criminal

aliens be a new and fundamental directive in immigration policy.”

Id. at 35.

However, we are neither legislators nor mind readers, but

adjudicators.

The Board has emphasized that in the absence of

“clearly expressed legislative intention, . . . inferences . . . are

insufficient to override the literal language of the statute . . . .

[W]e are not at liberty to rewrite the literal language . . . [and]

any changes to the express language must be left to Congress.”

Matter of Noble, supra, at 685-86. Nowhere in Board Member Grant’s

dissent does he attempt to account for the plain language that

Congress used in the statute, or to rationalize his concerns as

being consistent either with applicable principles of statutory

construction or with the considerable federal court authority,

discussed below, to the contrary.

Interim Decision #3417

With all due respect, Board Member Grant has it backwards: we

discern congressional intent from the explicit language Congress

uses in the statute. We do not imbue the statutory language with

whatever meaning we feel certain that Congress intended.

discerning the intent of Congress, “[o]ur compass is not to read a

statute to reach what we perceive—or even what we think a reasonable

person should perceive—is a ‘sensible result.’” Bifulco v. United

States, 447 U.S. 381, 401, 402 (1980) (Burger, C.J., concurring)

(“The temptation to exceed our limited judicial role . . . takes us

on a slippery slope. Our duty . . . [is to] apply the law and hope

that justice is done.” (citing The Spirit of Liberty: Papers and

addresses of Learned Hand 306-07 (Dilliard ed. 1960))).

Finally, employing a literal interpretation of section 303(b)(2)

of the IIRIRA in concluding that section 236(a) controls the bond

redeterminations of aliens who are not subject to section 236(c) of

the Act does not yield absurd or anomalous results. See Chapman v.

United States, 500 U.S. 453, 463 (1991) (ruling that “[a]

straightforward reading of [the federal statute] does not produce a

result ‘so “absurd or glaringly unjust,”’ United States v. Rodgers,

466 U.S. 475, 484 (1984)” (citation omitted)); see also Matter of

Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997). As discussed below,

custody determinations made under such a standard may include

consideration of dangerousness. Furthermore, as the Supreme Court

concluded in Bifulco v. United States, supra, at 400-01:

If our construction . . . clashes with present legislative

expectations, there is a simple remedy—the insertion of a

brief appropriate phrase, by amendment, into the present

language . . . . But it is for Congress, and not this

Court, to enact the words that will produce the result the

Government seeks in this case.

Federal Court Review of the Statute

Virtually every federal court that has addressed the issue has

ruled that section 236(c) of the Act applies only to aliens

“released” from criminal incarceration on October 9, 1998, and has

found the statutory language to be plain, not “uncertain.”

Cf.

Matter of Adeniji, supra, at 12. Similarly, each of these federal

Interim Decision #3417

courts has understood the “release” in question to be release from

criminal incarceration.

In so ruling, each of these federal courts has considered the issue

of whether section 236(c) of the Act applies to persons released

from criminal incarceration prior to October 9, 1998, and has struck

down the interpretation of the term “released” suggested by our

decision in Matter of Noble, supra, and adopted by the Service under

the current regulations. See, e.g., Miranda-Arteaga v. Reno, No.

CV-99-0949 (M.D. Pa. July 1, 1999); Velasquez v. Reno, supra; AbdelFattah v. Reno, No. 99-CV-0947 (M.D. Pa. June 28, 1999); Grant v.

Zemski, supra; Aguilar v. Lewis, 50 F. Supp.2d 539 (E.D. Va. 1999);

Alvarado-Ochoa v. Reno, No. 99-0470-IEG (AJB) (S.D. Cal. May 28,

1999); Baltazar v. Fasano, No. 99-CV-380 BTM (S.D. Cal. Mar. 25,

1999); Reyes-Rodriguez v. Fasano, No. 99-CV-0023 (S.D. Cal. Feb. 26,

1999); Alves-Curras v. Fasano, No. 98-CV-2295 (S.D. Cal. Feb. 22,

1999); Alwaday v. Beebe, 43 F. Supp.2d 1130 (D. Ore. 1999).

These cases all hold that the plain language “released” in both

section 236(c) of the Act and section 303(b)(2) of the IIRIRA makes

clear that only aliens who are released from criminal incarceration

on or after October 9, 1998, are subject to mandatory detention.

Specifically, “IIRIRA § 303(b)(2) clearly sets forth the express

command of Congress that the permanent mandatory detention

provisions are to be applied to aliens who were released after the

transitional rules expired.”

Velasquez v. Reno, supra, at 671

(emphasis added). As the district court in Miranda-Arteaga v. Reno,

supra, the district wherein the respondent’s case arises, stated

succinctly,

Section 236(c) states that “[t]he Attorney General shall

take into custody any alien who . . . is deportable by

reason of having committed [a deportable offense] . . .

when the alien is released . . .”

8 U.S.C. § 1226(c).

Congress further provided that section 236(c) “shall apply

to individuals released after [the expiration of the

transitional rules].”

Illegal Immigration Reform and

Immigrant

Responsibility

Act

1996

(“IIRIRA”)

§ 303(b)(2); Velasquez v. Reno, 37 F. Supp.2d. at 671-73;

Alwaday v. Beebe, 1999 WL 184028 (D. Or., Jan. 29, 1999).

IIRIRA § 303(b)(2) clearly sets forth the express command

Interim Decision #3417

of Congress that the permanent mandatory detention

provisions are to be applied to aliens who were released

after the transitional rules expired.

Velasquez, 37 F.

Supp.2d. 671 (emphasis in original).

The mandatory

detention rule of § 236(c) thus does not apply to aliens

released before the expiration of the Transition Period

Custody Rules on October 9, 1998. Two district courts in

this Circuit have reached the same conclusion on factual

circumstances

very

similar

the

recent

action.

Velasquez, supra; Grant, supra.

I find their reasoning

compelling and for the sake of expedition, adopt their

analysis.

Id. at 6.

These courts have universally rejected the majority’s reading of

the statutory language of the TPCR, which was set forth in Matter of

Noble, supra, as a “deviation from the plain language of section

303(b)(3)(A).” See Rivera v. Demore, supra, at *5 (remarking on the

Board’s dismissal of the phrase “when the alien is released” as

having no purpose other than serving as a modifier to alert the

Attorney General when to take an alien into custody as “[t]his

curious interpretation”).

In addition, at least one court has

rejected as “unconvincing” the Board’s original interpretation of

the term “released,” which was based on its “disbelief that Congress

meant to narrow the class of criminal aliens subject to mandatory

detention.” Id.

Constitutional Considerations

Notably, no court that has addressed the propriety of a

petitioner’s detention on the merits under these rules as they were

previously interpreted has upheld a determination that the mandatory

detention of the petitioner without access to a hearing before an

impartial adjudicator is warranted. In part, this is due to the

fact that the significant liberty interests implicated in the

context of the current detention provisions militate in favor of the

most restrictive interpretation of the statute that is permissible.

See generally United States v. Himler, 797 F.2d 156, 158 (3d Cir.

1986) (interpreting language narrowly where 1984 Bail Reform Act

marked a “radical departure” from former federal bail policy).

Interim Decision #3417

The encroachment on the liberty interests of an alien deemed to be

subject to mandatory detention raises questions of constitutional

magnitude concerning the reach of the TPCR and section 236(c) of the

Act. See Cabreja-Rojas v. Reno, 999 F. Supp. 493, 496 (S.D.N.Y.

1998); St. John v. McElroy, 917 F. Supp. 243, 250 (S.D.N.Y. 1996)

(finding the interest in freedom from confinement to be “of the

highest constitutional import”).

As I noted in my dissenting

opinion in Matter of Valdez, supra, at 718 (Rosenberg, dissenting),

the canons of statutory construction militate in favor of a

restrictive interpretation of a statutory provision “if a broader

meaning would generate constitutional doubts.”