Matter of De La Cruz

• Decision Date: 16 July 1991
• Docket Number: A-41429125.,Interim Decision Number 3155
• Citation: 20 I&N Dec. 346
• Parties: MATTER OF DE LA CRUZ. In Bond Proceedings Pursuant to 8 C.F.R. § 242.2(d).
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 346

MATTER OF DE LA CRUZ.

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

Interim Decision Number 3155

A-41429125.

Board of Immigration Appeals.

Decided by Board July 16, 1991.

(1) Section 242(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2) (1988), as amended by section 504 of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5049, creates a rebuttable presumption against the release of any alien convicted of an aggravated felony from Immigration and Naturalization Service custody unless the alien demonstrates that he is an alien lawfully admitted for permanent residence, is not a threat to the community, and is likely to appear for any scheduled hearings.

(2) Unlawful distribution of a controlled substance involves unlawful trade or dealing, i.e., "trafficking," in a controlled substance under the definition of "aggravated felony" at section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1988), as amended by section 501 of the Immigration Act of 1990, 104 Stat. at 5048.

(3) "Illicit trafficking" in a controlled substance within the meaning of section 101(a)(43) of the Act, as amended, includes "any drug trafficking crime" as defined in 18 U.S.C. § 924(c)(2) (1988).

ON BEHALF OF RESPONDENT: Brian Drew Perry, Sr., Esquire P.O. Box 740622 New Orleans, Louisiana 70174

ON BEHALF OF SERVICE: David M. Dixon Appellate Counsel.

Lorraine L. Griffin General Attorney.

BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members. Dissenting Opinion: Heilman, Board Member.

In a decision dated January 7, 1991, the immigration judge ordered the respondent's release from the custody of the Immigration and Naturalization Service upon posting bond in the amount of $10,000. The Service has appealed. The record will be remanded to the immigration judge.

The respondent is a native and citizen of the Dominican Republic who entered the United States as an immigrant at San Juan, Puerto Rico, on or about July 22, 1988. On October 3, 1989, the respondent was convicted in the United States District Court for the Southern District of New York for distribution of a controlled substance (cocaine) in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(C), and (b)(2) (1988). In an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) dated August 21, 1990, the respondent was charged with deportability under section 241(a)(4)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)(B) (1988),¹ for conviction of an aggravated felony, and under section 241(a)(11) of the Act² for conviction of a controlled substance violation.

The Service determined that the respondent must be detained without bond pursuant to section 242(a)(2) of the Act, 8 U.S.C. § 1252(a)(2) (1988), on the ground that he is 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). The respondent requested a redetermination of his custody status by the immigration judge.

Prior to amendment by the Immigration Act of 1990, section 242(a)(2) required detention without bond of an alien convicted of an aggravated felony. As amended, the provision sets forth an exception to mandatory detention for lawful permanent residents. Specifically, section 242(a)(2) was amended by section 504 of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5049 (effective Nov. 29, 1990) to read as follows:

(2)(A) The Attorney General shall take into custody any alien convicted of an aggravated felony upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense). Notwithstanding paragraph (1) or subsections (c) and (d), but subject to subparagraph (B) the Attorney General shall not release such felon from custody.

(B) The Attorney General shall release from custody an alien who is lawfully admitted for permanent residence on bond or such other conditions as the Attorney General may prescribe if the Attorney General determines that the alien is not a threat to the community and that the alien is likely to appear before any scheduled hearings.

In his decision rendered on January 7, 1991, the immigration judge did not indicate whether he found the respondent to be an alien convicted of an aggravated felony within the meaning of section 101(a)(43) of the Act. Nor did the immigration judge specify whether he ordered the respondent's release from custody on $10,000 bond under the authority of section 242(a)(1) of the Act or under new section 242(a)(2)(B).

On appeal the Service contends that the respondent is a lawful permanent resident alien convicted of an aggravated felony and that these bond proceedings are therefore governed by section 242(a)(2)(B) of the Act. The Service claims that pursuant to section 242(a)(2)(B) the immigration judge was authorized to release the respondent on bond only upon a finding that the respondent "is not a threat to the community and that the alien is likely to appear before any scheduled hearings." The Service further contends that the respondent's conviction is a "particularly serious crime" and that he is therefore "a danger to the community" within the meaning of section 243(h)(2)(B) of the Act. See Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988); Matter of Carballe, 19 I&N Dec. 357 (BIA 1986). Arguing that "danger to the community" under section 243(h)(2)(B) is synonymous with "threat to the community" under section 242(a)(2)(B) of the Act, the Service concludes that the respondent is not eligible to be released from Service custody.

We have reviewed the record de novo and we find that the respondent is an alien convicted of an "aggravated felony."³ The respondent was convicted on October 3, 1989, for distribution of a controlled substance (cocaine) in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(C), and (b)(2) (1988). Cocaine is a controlled substance as defined in section 102 of the Controlled Substances Act. See 21 U.S.C. §§ 802(6), 812(c) Schedule II(a)(4) (1988); 21 C.F.R. § 1308.12(b)(4) (1990); United States v. Amidzich, 396 F. Supp. 1140 (E.D. Wis. 1975). The respondent's offense is a felony. 21 U.S.C. § 841(b) (1988); 18 U.S.C.A. § 3559 (West Supp. 1991). Unlawful distribution of a controlled substance clearly involves the unlawful trade or dealing, i.e., "trafficking," in a controlled substance. See Black's Law Dictionary 1340 (5th ed. 1979). Moreover, "illicit trafficking" in a controlled substance within the meaning of section 101(a)(43) includes "any drug trafficking crime" as defined in 18 U.S.C. § 924(c)(2) (1988). A "drug trafficking crime" is "any felony punishable" under the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act. 18 U.S.C. § 924(c)(2) (1988); see also Matter of Barrett, 20 I&N Dec. 171 (BIA 1990). The respondent was convicted of a felony under the Controlled Substances Act. We conclude that the respondent is an alien convicted of an "aggravated felony."

As an alien convicted of an aggravated felony, the respondent's request for a bond redetermination hearing is governed by section 242(a)(2). The usual custody provision at section 242(a)(1) specifically excepts application to aliens convicted of an aggravated felony.⁴

In standard bond proceedings under section 242(a)(1) of the Act, an alien, whom the Service in its discretion has arrested and taken into custody, generally should not be detained or required to post bond pending a determination of deportability except on a finding that he is a threat to the national security or is a poor bail risk. Matter of Patel, 15 I&N Dec. 666 (BIA 1976).

Section 242(a)(2)(A) of the Act states that the Attorney General "shall take into custody" any alien convicted of an aggravated felony and, subject to section 242(a)(2)(B), "shall not release" such felon from custody. Section 242(a)(2)(B) provides that the Attorney General "shall release" an alien taken into Service custody as an alien convicted of an aggravated felony if the alien is a lawful permanent resident and if the Attorney General determines that the alien "is not a threat to the community and that the alien is likely to appear before any scheduled hearings." Section 242(a)(2)(B) of the Act. We find that the statutory scheme and language of section 242(a)(2) creates a presumption against the release of any alien convicted of an aggravated felony from Service custody unless the alien demonstrates that he is an alien lawfully admitted for permanent residence, is not a threat to the community, and is likely to appear for any scheduled hearings. If the alien demonstrates these factors then the Attorney General "shall release" him from custody on bond or such other conditions. See INS v. Cardoza-Fonseca, 480 U.S 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984) (the starting point in cases involving statutory construction must be the language employed by Congress, and it is assumed that the legislative purpose is expressed by the ordinary meaning of the words used). We find it unreasonable to conclude that the statute requires the Service to take into custody an alien convicted of an aggravated felony, and then requires the Service to attempt to demonstrate that the alien "is not" a threat to the community and "is likely" to appear for any scheduled hearings.

The presumption against the respondent, however, is not irrebuttable. The Service argues that the respondent has committed a "particularly serious crime" and, under the Board's decision in Matter of Carballe, supra, thereby constitutes "a danger to the community" within the meaning of section 243(h)(2)(B) of the Act. Section 515(a)(2) of the Immigration Act of 1990, 104 Stat. at 5053, amends section 243(h)(2), the withholding of deportation provision of the Immigration and...