Interim Decision #3137

Interim Decision #3137

MATTER OF EDEN

In Bond Proceedings Pursuant To 8 C.F.R. § 242.2(d)

A-8361718

Decided by Board June 14, 1990

An alien convicted of an aggravated felony is subject to detention under section

242(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2) (1988), upon

completion of the incarceration or confinement ordered by the court for such

conviction.

ON BEHALF OF SERVICE:

David M. Dixon

ON BEHALF OF RESPONDENT:

Ira J. Kurzban, Esquire

Appellate Counsel

Kurzban, Kurzban & Weinger, P A

2650 S.W. Z7th Avenue, 2nd Floor

Miami, Florida 33133

Kenneth S. Hurewitz

General Attorney

BY: Milhollara, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

The Immigration and Naturalization Service has appealed from the

immigration judge's decision dated December 6, 1989, granting the

respondent's request for a bond redetermination hearing and setting

bond at $10,000. The Service's request for oral argument before this

Board was waived by appellate counsel for the Service. The appeal will

be sustained, and the record will be remanded to the immigration

judge.

The respondent is a 45-year-old native of the United Kingdom and

citizen of Canada. An Order to Show Cause, Notice of Hearing, and

Warrant for Arrest of Alien (Form I-221S) dated November 7, 1989,

alleges that the respondent was admitted to the United States as an

immigrant on August 29, 1952, at Blaine, Washington.

On March 10, 1989, the respondent was convicted in the United

States District Court for the Southern District of Florida for possession with intent to distribute diazepam in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. §§ 2(a) and (b) (1988). The respondent was

sentenced by the court as follows:

IT IS THE JUDGMENT OF THIS COURT THAT: the defendant shall be

committed to the custody of the U.S. Attorney General or his authorized representa209

Interim Decision #3137

tive for imprisonment for a term of SIX (6) MONTHS. It is further ordered that the

defendants (sic) confinement take place at a Community Treatment Center.

1T IS ORDERED AND ADJUDGED that the defendant shall serve a special parole

term of TWO (2) YEARS.

The respondent completed his period of confinement and was arrested

and taken into custody by the Service while on special parole.

The Service determined that the respondent was to be continued in

custody without bond pursuant to section 242(a)(2) of the Immigration

and Nationality Act, 8 U.S.C. § 1252(a)(2) (1988), on the ground that

he was an alien convicted of an aggravated felony as defined in section

101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1988). He is charged

with deportability under section 241(a)(4)(13) of the Act, 8 U.S.C.

§ 1251(a)(4)(B) (1988), for conviction of an aggravated felony, and

under section 241(a)(11) of the Act, for conviction of a controlled

substance violation. The respondent requested a redetermination of

his custody status by the immigration judge.

In a decision dated December 6, 1989,' the immigration judge

found that section 242(a)(2) of the Act was inapplicable to the

respondent because he had not completed his sentence within the

meaning of that provision. He further found that the respondent had

been properly detained under section 242(a)(1) of the Act. The

immigration judge concluded that the respondent was eligible for

release from Service custody upon the posting of a bond in the amount

of $10,000.

On appeal, the Service contends that the immigration judge erred in

finding that the respondent was not subject to mandatory detention

under section 242(a)(2) of the Act. In the alternative, the Service

contends that the amount of bond set by the immigration judge is

insufficient. We fmd that the respondent's detention was required

under section 242(a)(2) and that he is ineligible for release from

custody under that section. i herefore, the appeal will be sustained,

and the record will be remanded to the immigration judge.

Section 242(a) of the Immigration and Nationality Act states in part

as follows:

(a)(1) Pending a determination of deportability in the case of any alien as

provided in subsection (b) of this section, such alien may, upon warrant of the

Attorney General, be arrested and taken into custody. 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, (A) be

continued in custody; or (13) 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. ...

I The record contains a metnorandum dated December 14, 1989, by the immigration

judge concerning the basis for his decision.

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(2) The Attorney General shall take into custody any alien convicted of an

aggravated felony upon completion of the alien's sentence for such conviction.

Notwithstanding subsection (a), 2 the Attorney General shall not release such felon

from custody.

Section 242(a) of the Act, as amended by the Anti-Drug Abuse Act of

1988, Pub. L. No. 100-690, § 7343(a), 102 Stat. 4181, 4470 (effective

Nov. 18, 1988).

Section 242(a)(2) is, on its face, a mandatory detention provision

relating to aliens convicted of an aggravated felony. Such detention is

required "upon completion of the alien's sentence for such conviction." The issue in this case is the proper interpretation of this phrase.

As in all cases of statutory construction we begin with the language

of the statute itself. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987);

INS v. Phinpathya, 464 U.S. 183, 189 (1984). The key word "sentence"

in section 242(a)(2) is not limited to one clear meaning. On the one

hand, "sentence" may refer simply to the judgment or order by which

the court assigns punishment. Black's Law Dictionary defines "sentence" as follows:

The judgment formally pronounced by the court or judge upon the defendant after

his conviction in a criminal prosecution, imposing the punishment to be inflicted.

Judgment formally declaring to accused legal consequences of guilt which he has

confessed or of which he has been convicted. The word is properly confined to this

meaning. In civil cases, the terms "judgment," "decision," "award," "finding," etc.,

are used.

Black's Law Dictionary 1222 (5th ed. 1979) (citation omitted). A

plausible interpretation of section 242(a)(2) using this definition of

"sentence" would be that an alien convicted of an aggravated felony is

subject to mandatory detention upon completion of the sentencing

phase of his criminal proceedings. However, "upon completion of the

alien's sentence" seems at least an awkward way of referring to the

issuance of the court's sentencing order.

Alternatively, Webster's Third New International Dictionary recognizes that "sentence" as commonly used may refer not only to the

order imposing punishment but to the punishment itself:

(Sentence:1 the order by which a court or judge imposes punishment or penalty upon

a person found guilty; _ .. the punishment or penalty so imposed.

Webster's Third New International Dictionary 2068 (1986). We find

that the common-sense reading of "upon. completion of the alien's

sentence" in section 242(a)(2) uses the word "sentence" to refer in

some way to the punishment ordered instead of the order itself.

This conclusion is supported. by the .statement of Senator Alphonse

D'Amato upon concurrence of the Senate in House bill 5210 which

2 This reference should be to "paragraph (1)" rather than to "subsection (a)."

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was enacted into law as the Anti-Drug Abuse Act of 1988 and added

section 242(a)(2) to the Immigration and Nationality Act. Concerning

the language of section 242(a)(2) Senator D'Amato stated:

The Bill requires the Federal Government to put aggravated alien felons in detention

immediately after they serve their criminal sentence.

134 Cong. Rec. S17318 (daily ed. Oct. 21, 1988) (emphasis added).

The parties in this case agree that "sentence" in. section 242(a)(2)

refers to the punishment ordered and not simply the order imposing

punishment. Their disagreement concerns whether Congress intended

to refer to more than incarceration. The Service contends that

"sentence" in section 242(a)(2) refers only to the actual incarceration

served by the alien as a result of the court's judgment. The respondent

contends that his special parole is no less a part of his "sentence" than

his confinement, and therefore that authority to detain him pursuant

to section 242(a)(2) does not exist until his parole term is satisfied.

Again, both alternatives are legitimate uses of the word "sentence."

First, "sentence," in the context of referring to the punishment

ordered by a court, may be limited in its meaning to the period of

incarceration or confinement ordered by the court. It is commonly

stated, for example, that a defendant's sentence is suspended and he is

placed on probation; "sentence" in this instance plainly refers only to

the period of incarceration or confinement imposed by the court. This

usage is consistent with the notion of probation or parole as a period of

grace relieving a defendant from serving his entire period of incarceration. See United States v. Torrez-Flores, 624 F.2d 776 (7th Cir. 1980).

It is also consistent with the definitions of "probation" and "parole."

See Black's Law Dictionary 1006, 1082 (5th ed. 1979) ("Probation"

defined in one sense as Isjystem of allowing a person convicted ... to

avoid imprisonment, under a suspension of sentence," and

"(pirobation is release by court before sentence has commenced."

"Parole" defined in one sense as Irielease from jail, prison or other

confinement after actually serving part of sentence.").

Of course, options such as probation, parole, supervised release,

etc., may also be specifically included in a sentence by statutory design

and, as such, may commonly be referred to as part of the sentence.

Whether options such as probation should be considered as part of the

sentence is a frequently debated topic. Compare Hinman v. United

States, 730 F.2d 649, 651 (11th Cir. 1984) ("special parole" not to be

treated as "sentence" for purposes of determining judicial compliance

with plea bargaining agreements); Sims v. United States, 607 F.2d 757,

759 (6th Cir. 1979) (imposition of 5-year prison term upon revocation

of probation for 2 years is not double jeopardy because defendant

"had not been sentenced"); Dunn v. United States, 561 F.2d 259, 261

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(D.C. Cir. 1977) (court ordering probation under section 5010(a) of

the Youth Corrections Act is exercising option in lieu of sentencing

and not imposing a "sentence" within the strict meaning of the word);

United States v. Becker, 536 F.2d 471, 473 (1st Cir. 1976) ("Probation

and sentence are separate and distinct"); United States v. Fultz, 482

F.2d 1, 4 (8th Cir. 1973) ("Probation ... is in no sense a sentence as

that term is used in the [Probation] Act."); United States v. Glasgow,

389 F. Supp. 217, 220 n.6 (D.D_C. 1975) (same as Dunn v. United

States, supra) with United States v. Kamer, 781 F.2d 1380, 1388 (9th

Cir. 1986) ( [W]ithin the plea bargaining context, where the reasonable understanding and expectations of the parties prevail, probation

is commonly understood to be a sentence."); United States v. Condit,

621 F.2d 1096, 1098 (10th Cir. 1980) (finding that "for purposes of 28

U.S.C. § 2255 and 18 U.S.C. § 3653 ... probation is merely one form

of sentence"); United States v. Rodgers, 588 F.2d 651, 654 (8th Cir.

1978) (stating that "probation is a sentence within the meaning of 18

U.S.C. § 3653"); Nicholas v. United States, 527 F.2d 1160, 1162 (9th

Cir. 1976) (finding that "probation is a 'sentence' within the meaning

of section 3653"); Napoles v. United States, 536 F.2d 722, 725 (7th Cir.

1976) ("We conclude that probation is a sentence within the meaning

of the provisions of § 2255 and § 3653 .... "); Smith v. United States,

"

505 F.2d 893, 895 (5th Ch. 1974) ("Probation is a sentence like any

other sentence.").

The Anti-Drug Abuse Act of 1988 was submitted without a Senate

or House Report. See 1988 U.S.C.C.A,N. 5937. However, based on

our review of the remarks of members of Congress and the history of

attempts to add section 242(a)(2), we find that Congress intended its

employment of "sentence" in this provision to refer only to the time a

defendant serves on the period of incarceration or confinement

ordered as a result of his conviction for an aggravated felony.

The initial proposals concerning the detention of alien aggravated

felons clearly indicated that Congress sought to detain such aliens

without release throughout the pendency of their deportation proceedings. Senate bill 972 introduced by Senator Lawton Chiles of Florida

on the legislative day of March 30, 1987, stated in relevant part:

(2)(A) Any alien arrested under paragraph (1) [of section 242(a) of the Act]

pending a determination of whether such alien is deportable on grounds of having

been convicted of an aggravated felony shall not be released from custody and shall

not be entitled to conditional parole. An alien held in custody under this paragraph

by State or local authorities shall promptly be transferred to the custody of the

Attorney General.

S. 972, 100th Cong., 1st Sess., 133 Cong. Rec. 8772 (1987); cf. 133

Cong. Rec. 8771 (1987) (remarks of Sen. Chiles); 133 Cong. Rec.

H8961 (daily ed. Oct. 22, 1987) (remarks of Rep. Smith on cone213

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sponding House bill 3529). Under this proposal an aggravated felon

would be detained from the time of his arrest by the Attorney General

under section 242(a)(1) throughout his deportation proceedings. The

proposal contemplates that any alien aggravated felon held by state or

local authorities would promptly be transferred to Service custody.

Upon introduction of this same language as part of Senate bill 2852

on the legislative day of September 26, 1988, Senator Chiles stated:

Another component of our law enforcement title acknowledges a fairly recent

development in narcotics trafficking; that is, the connection between illegal aliens

and drug trafficking. I am pleased that members of the working group accepted as

part of its initiative my package of bills which sets up a statutory scheme to ensure

that illegal aliens convicted of drug or violent crimes are incarcerated until they are

returned to their homeland, thus denying them any kind of parole or voluntary

departure. This package requires incarceration of any convicted alien felon ....

134 Cong. Rec. S14112 (daily ed. Oct. 3, 1988) (emphasis added).

On October 21, 1988, the House and Senate concurred in an

amended version of House bill 5210 which contained the present

language of section 242(a)(2) and which became the Anti Drug Abuse

-

Act of 1988. See H.R. Res. 595, 100th Cong., 2d Sess., 134 Cong. Rec.

H11108, 1111195 (daily ed. Oct. 21, 1988); 134 Cong. Rec. S17301

(daily ed. Oct. 21, 1988).

The respondent contends that the change between the earlier

proposed language for section 242(a)(2) dating back to March of 1987,

and the language which was enacted into law, indicates that Congress

abandoned its goal of maintaining an alien convicted of an aggravated

felony in custody pending a final determination of his deportability.

We disagree. A more reasonable explanation for the change concerns

the question of when the Federal Government must take over custody

of an aggravated felon. Under the earlier drafts, an alien who was

serving time in a state prison as a result of his aggravated felony

conviction would be transferred promptly to the custody of the

Service. We find that the enacted provision reflects Congress' decision

to allow the alien serving time in the state or local facility to finish out

that time before the Service assumes responsibility for his incarceration. Through the cooperation of state and local governments and the

Federal Government the alien remains detained. We are not persuaded that in enacting section 242(a)(2) Congress intended to allow an

aggravated felon to be released into the community on, for example,

probation, only to require mandatory detention, possibly years later,

following that probation.

Therefore, we conclude that "sentence" in section 242(a)(2) refers

to the period of incarceration or confinement ordered by the court.

The respondent's period of confinement was complete upon his release

from the community treatment center after 4 1/2 months. Accordingly,

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the immigration judge erred in finding that the respondent was not

subject to detention by the Service under section 242(a)(2) of the Act

upon release from confinement for his conviction of an aggravated

felony.

ORDER:

The appeal is sustained, and the record is remanded

to the immigration judge.

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