Criminal Defense of Immigrants


§ 6.39 2. Direct Release Not Required

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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 May 7, 2004) (unpublished) (granting habeas under 28 U.S.C. § 2241, ordering USICE to release returning LPR with CMT conviction; INA § 236(c)(1), 8 U.S.C. 1226(c)(1) does not require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).



Saysana v. Gillen, 590 F.3d 7 (1st Cir. Dec. 22, 2009) (INA 236(c) only allows mandatory detention after release from non-DHS custody that relates to the qualifying offense specified in the statute, not merely any release from any non-DHS custody; the statute was not ambiguous, and even if it were, the government's interpretation was unreasonable), overruling Matter of Saysana, 24 I. & N. Dec. 602 (BIA August 2008) (BIA applied mandatory detention to anyone released from any non-DHS custody for an offense described in INA 236(c) after the effective date of October 9, 1998, regardless whether the custody related to the qualifying conviction).


Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA Jun. 23, 2010) (DHS cannot hold noncitizen without possibility of IJ review under INA 236(c) where the noncitizen was last released from custody tied to the basis for detention before Oct. 8, 1998; detention, post Oct. 8, 1998, must be related to a listed basis for detention under INA 236(c)), Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), overruled; Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999), modified.
Matter of Saysana, 24 I. & N. Dec. 602 (BIA Aug. 27, 2008) (a noncitizen otherwise subject to mandatory detention under INA 236(c)(1), 8 U.S.C. 1226(c)(1), but for having been released from custody prior to October, 1998, will be considered to fall within INA 236(c) if s/he is again subject to lawful non-DHS custody for any reason, regardless of whether the purpose for the detention is unrelated to the offense that triggers mandatory detention), overturned by Saysana v. Gillen, 2008 WL 5484553 (D. Mass, Dec. 1, 2008), following Thomas v. Hogan, 2008 WL 4793739 (M.D.Pa. Oct.31, 2008).

First Circuit

Castaneda v. Souza, ___ F.3d ___, ___ (1st Cir. Oct. 30, 2014) (Because INA 236(c), 8 U.S.C. 1226(c) only applies to aliens detained when . . . released from criminal custody, and because the petitioners were not timely detained under any reasonable interpretation of the statute [they were each arrested by ICE over four years after release], we conclude that the petitioners are not subject to mandatory detention under 1226(c) and are entitled to an individualized bail hearing under 1226(a). We therefore affirm the district courts grant of habeas corpus relief in each case.); see Casas-Castrillon v. Dept. of Homeland Sec., 535 F.3d 942, 950 (9th Cir. 2008); Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003); Sylvain,714 F.3d at 157 (collecting cases); Alikhani v. Fasano, 70 F. Supp. 2d 1124, 1130 (S.D. Cal. 1999); Ortiz v. Holder, No. 2:11-cv-1146 DAK, 2012 WL 893154, at *3-4 (D. Utah Mar. 14 2012); Harris v. Lucero, Civil Action No. 1:11-cv-692, 2012 WL 603949, at *3 (E.D. Va. Feb 23, 2012); Parfait v. Holder, Civil No. 11-4877 (DMC), 2011 WL 4829391, at *4-9 (D.N.J. Oct. 11, 2011); Rianto v. Holder, No. CV-11-0137-PHX-FJM, 2011 WL 3489613, at *3 (D. Ariz. Aug. 9, 2011).

Second Circuit

Lora v. Shanahan, 804 F.3d 601 (2d Cir. Oct. 28, 2015) (DHS retains its authority and duty to detain noncitizen subject to mandatory detention even if not taken into custody immediately upon the noncitizen's release)
Efstathiadis v. Holder, 752 F.3d 591 (2d Cir. May 20, 2014) (Connecticut conviction of sexual assault, in violation of Connecticut General Statute 53a73a(a)(2), may or may not be a crime of moral turpitude, depending on (1) whether it is a strict liability offense with respect to the lack of consent element, and (2) if not, what level of mens rea visvis that element is required to support a conviction; We conclude only that in the context of a conviction arising under C.G.S. 53a"73a(a)(2), where the only factors affecting the moral character of the crime are the intention to receive sexual gratification (or to humiliate) and the mens rea associated with lack of consent, strict liability as to lack of consent would not lend support to categorization as a CIMT .; the court certified the question of what mens rea is attached to consent element of the statute to the Connecticut Supreme Court). NOTE: The court specifically held that intent to receive sexual gratification, standing alone, is not evil. Efstathiadis v. Holder, 752 F.3d 591, 597 (2d Cir. May 20, 2014).
Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA 101(f)(8), 8 U.S.C. 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of "conviction" in 8 U.S.C. 1101(a)(48)(A), the entry of a "formal judgment of guilt . . . by a court" occurs when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that "Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt"); Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant "entered a plea of guilty, and the court entered a formal judgment of guilt").

Fourth Circuit

Hosh v. Lucero, 680 F.3d 375 (4th Cir. May 25, 2012) (BIA determination that noncitizen may be subject to mandatory detention despite not having been detained immediately upon release from state custody is a permissible construction of 8 U.S.C. 1226(c)).

Lower Courts of Ninth Circuit

Castillo v. ICE Field Office Director, 907 F.Supp.2d 1235 (W.D. Wash. Nov. 14, 2012) (noncitizen not subject to mandatory detention under INA 236(c) where ICE did not detain noncitizen immediately upon release from criminal custody).

Tenth Circuit

Olmos v. Holder, 780 F.3d 1313 (10th Cir. Mar. 24, 2015) (mandatory detention under INA 236(c) may be imposed even if the migrant is taken into ICE custody six days after being released from criminal custody).


AILA Files Amicus Brief on Mandatory Detention Under INA 236(c), and the question of the meaning of when released.
AILA Files Amicus Brief on Mandatory Detention Under INA 236(c), and the question of the meaning of when released.
Sylvain v. Holder, Slip Copy, 2011 WL 2580506 (D.N.J. Jun. 28, 2011) (unpublished) (petitioner not taken into ICE custody until five years after release from incarceration is not subject to mandatory detention under INA 236(c)).
Hosh v. Lucero, __ F.Supp. __, 2011 WL 1871222 (E.D. Va. May 16, 2011) (the INAs mandatory detention provision, INA 236(c), applies only to individuals detained by ICE upon immediate release from criminal custody: In at least three other cases in this District, the Court has ruled that the mandatory detention provisions of Section 1226(c) [INA 236(c)] do not apply in those circumstances. Rather, where the United States has not taken an alien into custody for deportation based on a designated offense when he is released from custody pertaining to that offense, as Section 1226(c) directs, an arrested aliens right to an individualized bond hearing is governed by Section 1226(a), not Section 1226(c)(2). Accordingly, Hosh was entitled to a bond hearing pursuant to INA 236(a)).
There is a very strong argument that a noncitizen is not subject to mandatory detention, under INA 236(c), if not detained by ICE immediately when released from criminal custody. The majority of district court decisions on this point in the Third Circuit have held in favor of the immigrant on this issue. E.g., Christie v. Elwood, 2012 U.S. Dist. LEXIS 10662 (DNJ 2012); but see Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012) (an alien is subject to mandatory detention under INA 236(c) regardless of when released). No other court of appeals has decided the issue, although it is pending before the Third Circuit, in Desrossiers v. Hendricks, 2011 U.S. Dist. LEXIS 154971 (DNJ 2011).