In re Rojas
| Decision Date | 18 May 2001 |
| Docket Number | File A43 903 708.,Interim Decision Number 3451 |
| Citation | 23 I&N Dec. 117 |
| Parties | In re Victor Leonardo ROJAS, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, JONES, GRANT, and OHLSON, Board Members. Concurring and Dissenting Opinion: MOSCATO, Board Member, joined by VILLAGELIU, Board Member. Dissenting Opinion: ROSENBERG, Board Member, joined by SCHMIDT, GUENDELSBERGER, MILLER, BRENNAN, ESPENOZA, and OSUNA, Board Members.
FILPPU, Board Member:
In a bond order dated October 4, 2000, an Immigration Judge denied the respondent's request for a change in his custody status. The respondent filed a timely appeal. The Immigration Judge's reasons for the bond order are set forth in a memorandum dated December 1, 2000. The respondent's appeal will be dismissed.
The bond record as a whole creates some uncertainty regarding the precise dates on which various relevant events took place. It is not critical to resolve these uncertainties, because the relevant sequence of events is not in dispute. For purposes of this bond appeal, we will accept the respondent's factual account.
The respondent is a native and citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident on December 26, 1992. He was convicted in New Hampshire on March 3, 1998, of the offense of possession of a controlled substance (cocaine) with intent to sell, and he was sentenced to imprisonment for a term of 2½ to 5 years. The Immigration and Naturalization Service initiated removal proceedings against the respondent by issuance of a Notice to Appear (Form I-862), which was served on March 25, 1998. The Service charges that the respondent is subject to removal pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. V 1999), as an alien convicted of an aggravated felony, and pursuant to section 237(a)(2)(B)(i) of the Act, as an alien convicted of a controlled substance violation.
The respondent was released from the custody of the State of New Hampshire on parole. On July 26, 2000, the second day of his release on criminal parole, he was taken into custody by the Service. The respondent requested a review by an Immigration Judge of the Service's custody determination. The respondent argues that he is not subject to mandatory detention under section 236(c) of the Act, 8 U.S.C. § 1226(c) (Supp. V 1999), because he was not taken into custody "when . . . released" from incarceration, but rather was free in the community before being detained by the Service.
The Immigration Judge concluded that the respondent, who is deportable by reason of having committed an offense covered in sections 237(a)(2)(A)(iii) and (B)(i) of the Act, is subject to the mandatory detention provisions of section 236(c) of the Act. The Immigration Judge rejected the respondent's argument that he is not subject to section 236(c) because the Service failed to apprehend him at the time of his release, instead waiting 2 days before taking him into custody. The Immigration Judge therefore concluded that he did not have jurisdiction to redetermine the custody conditions imposed by the Service in this case. See 8 C.F.R. § 3.19(h)(2)(i)(D) (2001).
The question before us involves the interpretation of section 236(c) of the Act, which provides, in relevant part, as follows:
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. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
The first paragraph of section 236(c) of the Act directs the Attorney General to assume custody over certain categories of criminal and terrorist aliens. The second paragraph of section 236(c) governs the "release" of these aliens. It specifies that the Attorney General may release "an alien described in paragraph (1)" only if certain strict conditions are met. The mandatory detention aspects of the statute, therefore, derive from the language of section 236(c)(2). Consequently, we must determine whether the respondent is "an alien described in paragraph (1)" of section 236(c), even though he was not immediately taken into custody by the Service when he was released from his criminal custody.
In order to resolve the issue before us, we must determine whether an "alien described in paragraph (1)" is a statutory reference to any alien who falls simply within the discrete language of subparagraphs (A), (B), (C), or (D), or whether it additionally refers to an alien who is taken into Service custody "when the alien is released." In other words, we must determine whether or not the phrase "when the alien is released" is a necessary part of the description of the alien in paragraph (1).
The respondent has not disputed that he is deportable by reason of having committed an offense covered in sections 237(a)(2)(A)(iii) and (B)(i) of the Act. In addition, the record reflects that he was released from criminal custody after the expiration on October 8, 1998, of the Transition Period Custody Rules ("TPCR"), which were 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 Adeniji, Interim Decision 3417 (BIA 1999) ( that section 236(c) requires mandatory detention of a criminal alien only if he or she is released from criminal custody after October 8, 1998, the last day that the TPCR were in effect).
In Matter of Adeniji, supra, we did not address the question whether section 236(c)(2) directs mandatory detention only if the Service immediately takes custody of the alien "when the alien is released" from criminal incarceration (the "when released" language). Id. at 8. We did note, however, that the effect of the "when released" clause would appear to be of concern principally in the case of an alien who was released after the expiration of the TPCR, but who was not promptly taken into Service custody. Id. at 8-9 n.2. This is such a case.
Proper statutory construction must begin with the words used by Congress. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). We must start with the language of the statute, and the words should be given their "`ordinary or natural"' meaning. Bailey v. United States, 516 U.S. 137, 145 (1995) (quoting Smith v. United States, 508 U.S. 223, 228-29 (1993)); INS v. Phinpathya, 464 U.S. 183, 189 (1984). Where the language of the statute is clear, the inquiry is ended. The unambiguously expressed intent of Congress must be given effect. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). However, if an ambiguity is perceived when a provision is read in isolation, it is often clarified when it is interpreted in the context of the remainder of the statutory scheme. Bailey v. United States, supra, at 146; K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). The meaning assigned to statutory language 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. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94-95 (1993).
In the context of this case, the literal language of section 236(c)(2) of the Act, which provides for the detention of "an alien described in paragraph (1)," does not unambiguously tell us whether it encompasses the "when the alien is released" clause in section 236(c)(1) or merely references the four categories of aliens described in subparagraphs (A) through (D). We find the statutory provision, when read in isolation, to be susceptible to different readings. We therefore find it necessary to examine more than the language in question, and we turn in part to the remainder of the statutory scheme, taking into account its objectives and policy in order to resolve the issue before us. See Bailey v. United States, supra; John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, supra.
The natural reading of the statutory language of section 236(c)(2) of the...
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Contreras v. Terry, Civ. No. 12-746 LH/ACT
...immigration judge would not have jurisdiction over a bond motion. See 8 U.S.C. § 1226; 8 C.F.R. § 1008.19(h)(2)(i)(D);Matter of Rojas, 23 I. & N. Dec. 117 (B.I.A. 2001). Petitioner has no administrative remedies available to him at this time. [Doc. No. 1 at 5.] Petitioner filed his Petition......