Criminal Defense of Immigrants

Under amended INA § 236(c)(1), the requirement of mandatory detention is imposed “when the alien is released” from criminal custody without regard to whether s/he is released on parole, supervised release, or probation, and without regard to whether s/he may be arrested or imprisoned again for the same offense.  Prior to IIRAIRA, Congress passed AEDPA, which included similar detention provisions requiring the Attorney General to take into custody certain individuals convicted of criminal offenses “upon release of the alien from incarceration.”  Several courts found that the language in AEDPA indicated that Congress did not intend the mandatory detention provision to apply to persons released from incarceration before the AEDPA effective date.[1]  At least two district courts have upheld this interpretation.[2]  This strengthens the argument that if an individual was released from criminal custody before the effective date of IIRAIRA,[3] s/he should not be subject to mandatory detention.

The Board of Immigration Appeals, however, has held that a criminal noncitizen who is released from criminal custody after the expiration of the Transition Period Custody Rules is subject to mandatory detention pursuant to INA § 236(c), even if the noncitizen is not immediately taken into immigration custody when released from criminal custody.[4]  This conclusion can be challenged on petition for review in circuit court or on habeas corpus under 28 U.S.C. § 2241 in U.S. district court.[5]

The BIA has held, however, that a person must be released from some form of physical custody in order to be subject to mandatory detention.  Therefore, a noncitizen sentenced directly to probation, with no time in criminal custody, is not subject to mandatory detention.[6]

[169] See DeMelo v. Cobb, 936 F.Supp. 30 (D. Mass. 1996), digested in 73 interpreter releases 967-68 (July 22, 1996); Montero v. Cobb, No. 96-1141C-WGY (D. Mass. 1996); Grodzki v. Reno, No. 96-cv-2303-ODE (N.D.Ga. Sept. 20, 1996); Lopez-Tellez v. INS, No. 96-1432-BTM (CGA) (S.D.Cal. Sept. 26, 1996).

[170] Boonkue v. Ridge, No. CV 04-566-PA (E.D. Ore. May 7, 2004) (unpublished) (granting habeas under 28 U.S.C. § 2241, ordering USICE to release returning LPR with CMT conviction; INA § 236(c)(1), 8 U.S.C. 1226(c)(1) does not require mandatory detention where respondent was not arrested by immigration authorities directly upon release from criminal custody); Pastor-Camarena v. Smith, 977 F. Supp. 1415 (W.D. WA 1997) (the “when the alien is released” language of INA § 236(c)(1), 8 U.S.C. § 1226(c)(1) applies only to aliens who are being released from incarceration on the underlying offense, and only upon the expiration of the transitional custody rules as of Oct. 9, 1998); Alikhani v. Fasano, 70 F. Supp. 2d 1124, 1130 (S.D. Cal. 1999) (accord); Velasquez v. Reno, 37 F. Supp. 2d 663, 672 (D. N.J. 1999) (accord); Alwaday v. Beebe, 43 F. Supp. 2d 1130, 1133 (D. Or. 1999) (INA § 236(c), 8 U.S.C. § 1226(c) did not apply retroactively: “Had Congress intended that § 236(c) apply retroactively to aliens released from incarceration on criminal convictions before the statute’s effective date, Congress could have required custody ‘regardless of when the alien is released’ or ‘at any time after the alien is released.’”).

[171] The Attorney General invoked the Transitional Period Custody Rules on October 9, 1996.  The Transitional Rules ended as of October 8, 1998.  See also 74 No. 39 Interpreter’s releases. 1552-1553 (Oct. 10, 1997).

[172] Matter of Kotliar, 24 I. & N. Dec. 124 (BIA 2007) (noncitizen arrested at home while on criminal probation is subject to mandatory detention under INA § 236(c)(1), 8 U.S.C. § 1226(c)(1) (2000), regardless of the reason for the most recent criminal custody, provided it can be ascertained from the facts that he was released from criminal custody after October 8, 1998, the expiration date of the Transition Period Custody Rules); Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001).

[173] Quezada-Bucio v. Ridge, 317 F.Supp.2d 1221 (W. D. Wash. May 10, 2004) (INA § 236(c), 8 U.S.C. § 1226(c) applies only to noncitizens taken into immigration custody immediately after release from state custody); Velasquez v. Reno, 37 F.Supp.2d 663, 672 (D.N.J. 1999) (same).  See also Alikhani v. Fasano, 70 F.Supp.2d 1124 (S.D.Cal. 1999).

[174] Matter of West, 22 I. & N. Dec. 1405 (BIA 2000).