In re Samuel JOSEPH, Respondent
File A90 562 326 - York
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided April 23, 1999
Interim Decision #3387
(2) The filing of an appeal from an Immigration Judge’s merits decision terminating removal proceedings does not operate to stay an Immigration Judge’s release order in related bond proceedings. Matter of Valles, 21 I&N Dec. 769 (BIA 1997), modified.
Sandra Greene, Esquire, Philadelphia, Pennsylvania, for respondent
Brett M. Parchert, Appellate Counsel, for the Immigration and Naturalization Service
Jeffrey T. Bubier, Assistant District Counsel, for the Immigration and Naturalization Service
Before: Board En Banc: DUNNE, Vice Chairman; VACCA, HOLMES, HURWITZ, FILPPU, COLE, MATHON, GRANT, and SCIALABBA, Board Members. Dissenting Opinion: MOSCATO, Board Member, joined by SCHMIDT, Chairman; HEILMAN, VILLAGELIU, ROSENBERG, GUENDELSBERGER, and JONES, Board Members.
MATHON, Board Member:
The Immigration and Naturalization Service has requested a ruling by the Board regarding whether or not an automatic stay of the Immigration Judge’s release order is presently in effect pursuant to
I. PROCEDURAL AND FACTUAL BACKGROUND
The respondent is a native and citizen of Haiti who was admitted as a permanent resident in 1989. The Service commenced removal proceedings against the respondent in November 1998, charging that he was subject to removal under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
After the commencement of these removal proceedings, the Service held the respondent without bond based on its charge that he is an aggravated felon and thus subject to the mandatory detention provisions of section 236(c)(1) of the Act,
On January 20, 1999, the Immigration Judge issued an oral decision in the underlying removal proceedings. The Immigration Judge terminated the respondent’s removal proceedings based on his finding that the respondent was not removable as an aggravated felon. The Immigration Judge then issued an order releasing the respondent from custody. The Immigration Judge followed his oral orders with a “summary” of his oral decision terminating proceedings and a written release order, each dated January 22, 1999.
On January 20, 1999, the same day that the Immigration Judge issued his oral release order, the Service attempted to file with the Immigration Court a Form EOIR-43 (Notice of INS Intent to Appeal Custody Redetermination). The Form EOIR-43 is the form designated in
On January 27, 1999, the Service filed timely appeals from both the Immigration Judge’s release order and his order terminating removal proceedings. The Service filed the instant motion on February 10, 1999, requesting the Board to rule on whether an automatic stay had been invoked, or alternatively, to grant a discretionary stay under
In an order dated March 18, 1999, the Board granted the Service a temporary discretionary stay of the Immigration Judge’s release order pursuant to our authority under
II. THE APPLICABLE LAW
Section 236 of the Act governs the apprehension and detention of aliens during removal proceedings. For most criminal and terrorist aliens, including those who are deportable under section 237(a)(2)(A)(iii), detention pending a decision on their removability is mandatory. Section 236(c)(1) of the Act provides that the Attorney General “shall take into custody” aliens who are deportable or inadmissible under the designated grounds. The statute at section 236(c)(2) provides that “[t]he Attorney General may release an alien described in paragraph (1) only if the Attorney General decides” that they fall within the narrow exception created by that section to protect witnesses cooperating in certain major criminal investigations. See section 236(c)(2) of the Act.
The mandatory detention statute, section 236(c)(1), took effect in October of 1998 upon the expiration of the Transition Period Custody Rules (“TPCR“). See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, § 303(b)(3), 110 Stat. 3009-546, 3009-586 (“IIRIRA“). The TPCR were a temporary “stop-gap” measure invoked after the IIRIRA’s enactment to address the lack of detention space necessary to immediately implement the mandatory detention rule of section 236(c)(1). Under the TPCR, Immigration Judges had retained discretionary authority to release certain criminal aliens upon a demonstration that they did not present a danger to the community or a flight risk. That discretion ended with the TPCR’s expiration. Consistent
Upon expiration of the Transition Period Custody Rules set forth in section 303(b)(3) of Div. C. of Pub. L. 104-208, an immigration judge may not redetermine conditions of custody imposed by the Service with respect to the following classes of aliens:
. . .
(D) Aliens in removal proceedings subject to section 236(c)(1) of the Act (as in effect after expiration of the Transition Period Custody Rules) . . . .
Under the current regulatory scheme, Immigration Judges retain jurisdiction over custody issues pertaining to most criminal aliens only to the extent of determining whether an alien is “properly included” within the mandatory detention provisions of section 236(c)(1) of the Act. The regulation at
[W]ith respect to paragraphs (h)(2)(i)(C), (D), and (E) of this section, nothing in this paragraph shall be construed as prohibiting an alien from seeking a determination by an immigration judge that the alien is not properly included within any of those paragraphs.
The present regulations provide the Service with two procedures to stay an Immigration Judge’s release order pending the Board’s adjudication of its appeal from that order. The prior practice of seeking an emergency discretionary stay from the Board remains available to the Service and is now codified at
Automatic stay in certain cases. If an alien is subject to section 242(a)(2) of the Act (as in effect prior to April 1, 1997, and as amended by section 440(c) of Pub. L. 104-132), section 303(b)(3)(A) of Div. C. of Pub. L. 104-208, or section 236(c)(1) of the Act (as designated on April 1, 1997), and the district director has denied the alien’s request for release or has set a bond of $10,000 or more, any order of the immigration judge authorizing release (on bond or otherwise) shall be stayed upon the Service’s filing of a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) with the Immigration Court on the day the order is issued, and shall remain in abeyance pending decision of the appeal by the Board of Immigration Appeals. The stay shall lapse upon failure of the Service to file a timely notice of appeal in accor
dance with § 3.38. (Emphasis added.)
The issue before us is whether the Service may properly invoke an automatic stay of an order releasing an alien where the Immigration Judge has determined that the respondent is not “subject to” mandatory detention under section 236(c)(1) of the Act after completing a removal hearing in which the Immigration Judge has found that the respondent is not removable under one of the mandatory detention grounds.
III. SUMMARY OF THE PARTIES’ POSITIONS
The respondent, through his counsel, argues that the Immigration Judge properly rejected the Form EOIR-43 because its use is inappropriate in light of the Immigration Judge’s findings that the respondent is not subject to section 236(c)(1) or removable as an aggravated felon. The respondent also defends the propriety of the Immigration Judge’s decision that the respondent’s “obstructing and hindering” conviction was not an obstruction of justice offense as contemplated by section 101(a)(43)(S) of the Act. He further contends that the use of an automatic stay in these circumstances undercuts the Immigration Judge’s authority as an impartial reviewer of the Service’s decisions in custody matters. The respondent urges that the continued custody of a lawful permanent resident who has been found not to be removable by an Immigration Judge raises serious constitutional concerns. Accordingly, the respondent requests that the Immigration Judge’s custody order be affirmed and that he be released on his own recognizance.
The Service contends that the filing of an Form EOIR-43 is a ministerial act and that the Immigration Judge had no authority to reject it. The Service states that detention of an alien charged with removability under section 237(a)(2)(A)(iii) is mandatory under the Act and that the implementing regulations provide that Immigration Judges lack authority to redetermine conditions of custody with respect to such aliens. The Service does not question the Immigration Judge’s authority to terminate proceedings or to determine that the respondent is not subject to mandatory detention. However, the Service contends that the regulation permits it to invoke an automatic stay in precisely these circumstances to prevent the release of a criminal alien that it asserts is subject to section 236(c)(1) until the issue of whether the respondent is eligible for release is resolved by the Board. The Service highlights the mandatory language of the automatic stay regulation and the lack of any exception in the regulation addressing circumstances where an Immigration Judge has ordered release after terminating removal proceedings. Finally, the Service argues that the Immigration Judge should not be allowed to rule on whether his own release order should be stayed.
We agree with the Service that this regulatory scheme does not permit
IV. ANALYSIS
A. The Respondent’s Constitutional Concerns
We note that it is not within the purview of this Board to pass upon the constitutionality of the mandatory detention provision in section 236(c)(1) of the Act. See generally Matter of Cenatice, 16 I&N Dec. 162 (BIA 1977). However, we note that our review of the history of the regulations implementing section 236(c)(1) and the other IIRIRA provisions controlling the detention and release of aliens, which includes the automatic stay regulation at issue here, shows that this regulatory scheme was promulgated by the Attorney General after weighty consideration of the constitutional and liberty interests implicated by the mandatory detention of criminal aliens before there has been a final order regarding removability. 63 Fed. Reg. 27,441-47 (citing, inter alia, Reno v. Flores, 507 U.S. 292 (1993) (recognizing the power of Congress and the Attorney General to promulgate rules providing for the detention of certain categories of aliens (certain juvenile alien detainees), without providing for an individualized assessment of whether each member of the class warrants detention); Mathews v. Diaz, 426 U.S. 67, 79-80 (1976) (“In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.“); Marcello v. Bonds, 349 U.S. 302 (1955) (rejecting a claim that due process is violated where the Service, which initiates and prosecutes proceedings against the alien, also decides custody); Carlson v. Landon, 342 U.S. 524, 538 (1952) (“Detention is necessarily a part of this deportation procedure. Otherwise aliens arrested for deportation would have opportunities to hurt the United States during the pendency of deportation proceedings.“); Doherty v. Thornburgh, 943 F.2d 204, 208, 209 (2d. Cir. 1991) (“[A]n alien’s right to be at liberty during the course of deportation proceedings is circumscribed by considerations of the national interest,” and is consequently “narrow.“)).
The regulatory history further reflects that the Department of Justice, in exercising its rulemaking authority, considered district court cases which have held mandatory detention statutes unconstitutional under the Due Process Clause of the Fifth Amendment. The Department espoused the view that “these district courts have misapprehended the law of immigration detention, and have failed to defer to Congress and the Executive in matters of immigration as required by the Supreme Court’s teachings.” 63 Fed. Reg. at 27,445. “Some of the district court cases err in applying to immigration detention the standard for pre-trial criminal bail determina
It is apparent that the constitutional concerns relating to the mandatory detention of criminal aliens prior to a final order as to their removability under a criminal charge were thoroughly addressed in the rulemaking process, and we are bound to follow the regulations as promulgated by the Attorney General.
B. The Filing of a Form EOIR-43 is a Ministerial Act
The automatic stay regulation at
C. When an Alien Is “subject to” Section 236(c)(1) for Purposes of Invoking an Automatic Stay
The respondent argues that the automatic stay provision does not apply in this case because the Immigration Judge determined that the respondent is not “subject to” section 236(c)(1) of the Act, a precondition specified in
The phrase “subject to” cannot be said to have achieved status as a term of art with a consistently applied meaning in immigration law. It is used in our immigration statutes, regulations, and case law in many different ways in widely varying contexts.1
However, when used in connection with applying the governing detention standards, a criminal alien is generally considered “subject to” those rules when he or she is in proceedings pursuant to a charge of removability or deportability based on an underlying conviction that falls under the umbrella of the applicable detention statute. The detention provisions are typically first applied to aliens early in the process, before there has been a hearing before the Immigration Judge regarding the merits of the charge of removability or deportability.
For example, the current regulations controlling custody and bond issues pending an administratively final order,
Each of these provisions includes aliens who have not yet had their deportation or removal hearings, necessarily meaning that in the bond and custody context, being “subject to” the applicable detention statute is not tied to a decision by an Immigration Judge on the merits as to whether or not the criminal alien is in fact deportable or removable on the criminal ground that triggered the application of the detention provision.
Similarly, in our bond case law, the term “subject to,” for purposes of determining whether the prevailing detention provisions apply to a particular alien, has been loosely used in cases decided both before and after an Immigration Judge has issued a decision on an alien’s deportability. See generally Matter of Melo, 21 I&N Dec. 883, at 884 (BIA 1997); Matter of Valdez, 21 I&N Dec. 703 (BIA 1997); Matter of Eden, 20 I&N Dec. 209, 214-15 (BIA 1990). In those cases where a deportation hearing had already been completed, we have never suggested that the alien would not also have been considered “subject to” the applicable detention provisions prior to the Immigration Judge’s decision on deportability. However, we sometimes noted that we found an Immigration Judge’s bond order “reinforced” by his or her subsequent finding that the alien was deportable. See Matter of Drysdale, 20 I&N Dec. 815, 818 (1994).
The regulatory history of the detention provisions shows that the proper inquiry for a district director (and an Immigration Judge) in determining whether the mandatory detention provisions apply is whether there is “reason to believe that this person falls within a category barred from release under applicable law.” 63 Fed. Reg. at 27,444-45. In this case, the respondent’s conviction record provided the Service with the requisite “reason to believe” that the respondent was removable as an aggravated felon, and the respondent thus became “subject to” section 236(c)(1) of the Act when charged with removability under section 237(a)(2)(A)(iii). The question that remains for us to decide is whether the respondent remains “subject to” section 236(c)(1) for automatic stay purposes after an Immigration Judge has decided that he is not.
In this regard, we find it important to note that section 236 of the Act and the implementing regulations discussed above apply to all custody determinations made while an alien is in removal proceedings “pending a decision on whether the alien is to be removed from the United States.” Section 236(a) of the Act. There is a separate statutory and regulatory scheme which controls the detention and release of aliens after an administratively final order. See section 241 of the Act,
In Matter of Valles, 21 I&N Dec. 769 (BIA 1997), a panel of this Board examined a factual situation that is analogous to the one before us, where an Immigration Judge had released an alien from Service custody after determining that he was not deportable as charged and had terminated proceedings. In Valles, it was noted that “that decision has been appealed by the Service, and the respondent remains the subject of deportation proceedings.” Id. at 773-74. The bond record was therefore remanded to the Immigration Judge for application of the TPCR, which had taken effect subsequent to the Immigration Judge’s release order. To the extent that Valles may be read as suggesting that a Service appeal from an Immigration Judge’s decision finding an alien not removable or deportable operates in any way to stay an Immigration Judge’s release order, we now expressly reject that proposition. Since an appeal from the release order itself would not suffice to stay the release of an alien without the additional operation of one of the stay procedures in
In the case before us, we do find, consistent with Valles, that the respondent remains “subject to” removal under section 237(a)(2)(A)(iii) until there is a final administrative decision on his removability. However, our role in the separate detention review process is to determine whether or not the Immigration Judge correctly determined, based on the instant bond/custody record (which in most cases is less complete than the removal record), that the respondent is not “subject to” mandatory detention under section 236(c)(1). For the reasons discussed below, we interpret the regulations as providing the Service a mechanism to continue the detention of the respondent until we resolve that issue in the context of its appeal from the Immigration Judge’s release order. We note that our decision in the Service’s appeal from the Immigration Judge’s release order will not necessarily predetermine our decision as to the respondent’s ultimate removability as an aggravated felon, as our removal decision may be based on a more complete removal record.
D. The Immigration Judge’s Authority To Make a Determination
The dissent correctly points out that the Immigration Judge has been provided the specific authority under the regulation at
We fully agree that the automatic stay regulation undercuts the Immigration Judge’s authority to make a determination that an alien is not “subject to” mandatory detention when the Service challenges the Immigration Judge’s release order. The Department acknowledges in the regulatory history that it received comments that the automatic stay provision “encroaches on the authority of immigration judges” in response to the publication of the proposed rule. 63 Fed. Reg. at 27,447. Nonetheless, it decided to retain the automatic stay provision in the final rule without modification, and the Service, the Immigration Judges, and this Board are bound to follow it. Id. As was discussed in the regulatory history, the automatic stay provision is intended as a safeguard for the public, as well as a measure to enhance agencies’ ability to effect removal should that be the ultimate final order in a given case. It “preserv[es] the status quo briefly while the Service seeks expedited appellate review of the immigration judge’s custody decision. The Board of Immigration Appeals retains full authority to accept or reject the Service’s contentions on appeal.” Id.
The dissent does not appear to dispute that the automatic stay provision gave the Service the authority, pending our adjudication of its bond appeal, to override an Immigration Judge’s decision that a criminal alien did not represent a danger to the community or a flight risk, or to stay an Immigration Judge’s release order when it disputed the amount of bond, when those considerations were relevant to release under the TPCR, and the district director had either denied the alien’s request for release or had set bond in the amount of $10,000 or more. See
Although the invocation of an automatic stay by the Service undeniably limits, at least until the Board’s review of the Service’s appeal from the Immigration Judge’s release order, the effectiveness of an Immigration Judge’s determination under
As a preliminary matter, the Immigration Judge’s authority under
The Board’s jurisdiction over appeals from custody decisions is circumscribed by
We find that the regulatory structure does provide the alien a right to appeal from an Immigration Judge’s determination under § 3.19(h)(2)(ii)
As a practical matter, it is true that an opportunity to appeal the Immigration Judge’s determination that an alien is subject to section 236(c)(1) of the Act often becomes moot. In the interest of administrative efficiency, when the records of proceedings for bond appeals from Immigration Judge’s custody orders and case appeals from Immigration Judge’s decisions in removal proceedings are received at the Board and are sufficiently complete for adjudication at approximately the same time, we generally will first decide the merits case appeal, rather than spend our resources addressing a custody determination by an Immigration Judge that will immediately become moot as soon as our final removal order is issued. However, in many cases, the bond appeal is ripe for adjudication before the appeal from the Immigration Judge’s removal decision, and we then proceed to adjudicate the merits of the bond appeal. The Immigration Judge’s determination under § 3.19(h)(2)(ii) then serves an important role as the only vehicle for an alien to seek our review of the decision by the Immigration Judge that the alien is subject to mandatory detention.
When, on the other hand, the Immigration Judge decides, as in the instant case, that an alien is not “properly included” in section 236(c)(1)’s mandatory detention provisions and, in conjunction with that finding, proceeds to order an alien released, on bond or otherwise, his or her § 3.19(h)(2)(ii) determination is not devoid of all significance as a result of the existence of the automatic stay provision. That ruling controls to the extent that the Service concedes that the criminal charge is not adequately
E. The Practical Effect of the Automatic Stay Regulation
The dissent’s construction of the regulations leaves the automatic stay provision with little practical effect following the expiration of the TPCR. The dissenters would view its applicability as limited to a situation where an Immigration Judge does not disagree with the Service’s charge that an alien falls within the section 236(c)(1) mandatory detention provision, but nonetheless proceeds to redetermine conditions of custody imposed by the Service and releases the alien in direct contravention of the patent language of the statute and the regulation. Section 236(c)(1) of the Act;
Rather, we find that the automatic stay was intended to come into play in circumstances such as those presented here, where the Service disputes the Immigration Judge’s determination that a criminal alien is not subject to mandatory detention and appeals an order authorizing release under any conditions.
The regulatory language does not foreclose the dissent’s construction. But given the clarity of the removal of Immigration Judges’ bond jurisdiction over criminal aliens, the dissent’s reading largely restricts the current life of the automatic stay provision to situations where Immigration Judges, who are sworn to uphold the law, deliberately exceed their authority and order release, with or without bond, for aliens who by law must be held in custody. The regulatory history fails to reflect that the automatic stay was
To allow the Immigration Judge to defend his or her own release order by thwarting the operation of the automatic stay provision, based on a disputed determination that an alien’s offense does not fit within the class of offenses that subjects him or her to mandatory detention, would leave the automatic stay provision without any meaningful effect. When an alien has been charged with removability based on one of the enumerated section 236(c)(1) offenses, he or she is “subject to” the mandatory detention provisions of that section. There will generally only be a release order for the Service to appeal and against which to invoke the automatic stay when the Immigration Judge exercises his or her limited jurisdiction under
Failing to give the automatic stay effect in these circumstances, pending our expedited adjudication of the Service’s appeal from the Immigration Judge’s release order, would not achieve the regulation’s twin goals of protecting the public from the erroneous release of a criminal alien and preventing the absconding of a criminal alien who fears that the Immigration Judge’s release order may be reversed on appeal. 63 Fed. Reg. at 27,447.
V. CONCLUSION
We find that the Service properly invoked the automatic stay provision of § 3.19(i)(2) when it timely presented the Form EOIR-43 to the Immigration Court. The Immigration Judge was without any authority to refuse the form or to make his own determination that his custody decision should not be stayed. Therefore, an automatic stay is in effect as of January 20, 1999, and it will remain in effect pending our expedited decision on the Service’s bond appeal.
In re Samuel JOSEPH, Respondent
File A90 562 326 - York
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided April 23, 1999
Interim Decision #3387
DISSENTING OPINION: Anthony C. Moscato, Board Member
The majority has answered this question in the negative, asserting that the automatic stay provision was designed, by its nature, to guard against mistakes in adjudication that would cause aliens who should be detained to be set free and therefore was intended to survive an Immigration Judge’s determination to the contrary. The majority further asserts that the language of
First, the majority has engaged in a lengthy legal analysis to support its position. I believe that that analysis cannot overcome the plain meaning of the regulations as written. As stated in
Aliens in removal proceedings subject to section 236(c)(1) of the Act (as in effect after expiration of the Transition Period Custody Rules).
With respect to paragraphs (h)(2)(i)(C), (D) and (E) of this section, nothing in this paragraph shall be construed as prohibiting an alien from seeking a determination by an immigration judge that the alien is not properly included within any of those paragraphs. (Emphasis added.)
On its face, this language states that an Immigration Judge may determine either that the alien has not been charged with inadmissibility or
The next question, and the central one in this case, is whether the Immigration Judge’s determination that an alien is not properly included under § 3.19(h)(2)(i)(D) for custody redetermination purposes extends to, and nullifies, the automatic stay provision in the regulations. That provision, at § 3.19(i)(2), states in relevant part:
Automatic stay in certain cases. If an alien is subject to . . . section 236(c)(1) of the Act (as designated on April 1, 1997), and the district director has denied the alien’s request for release or has set a bond of $10,000 or more, any order of the immigration judge authorizing release (on bond or otherwise) shall be stayed upon the Service’s filing of a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) with the Immigration Court on the day the order is issued, and shall remain in abeyance pending decision of the appeal by the Board of Immigration Appeals. (Emphasis added.)
The critical words here are in the first sentence, “[i]f an alien is subject to.” If the alien is “subject to” the mandatory detention scheme set forth at section 236(c)(1) of the Act, then the automatic stay authority applies. If not, then not. In the Board’s research on this issue, we have discovered that the words “subject to” are used frequently in immigration law and are taken to mean a variety of things. Thus, the words, at least in the immigration context, have no specific meaning as a term of art.
We must look, then, to their general definition. Black’s Law Dictionary 1594 (4th ed. l951) provides the following definitions: “[l]iable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for.” In an interesting range of alternatives, the words “governed or affected by” provide the closest match for the current circumstance. The question then becomes whether, when an Immigration Judge determines, pursuant to
It would seem not. The language is clear. The Immigration Judge can determine that the alien is not properly within the category of aliens subject to section 236(c)(1) of Act. At no point does the regulation specifically exempt the automatic stay provision from the impact of this determination. Had the Department intended to tie the automatic stay authority to the Service’s charging decision, as the majority suggests, it could easily have used the words “charged” or “determined by the Service” or some other for
Therefore, I submit that a plain reading of the regulation, as drafted, supports the conclusion that the automatic stay provision has no effect when the Immigration Judge determines that the alien is not “subject to” section 236(c)(1) of the Act.
Second, the majority has suggested that the overall purpose of the regulation was to implement the detention scheme enacted by section 303 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“) (codified at section 236 of the Act), and that the specific purpose of the automatic stay provision following the expiration of the Transition Period Custody Rules is to guard against the possibility of bonds being set or releases from custody ordered either mistakenly or inadvertently by Immigration Judges. Therefore, the argument runs, the automatic stay provisions should remain in effect in the instant situation as well, to guard against the possibility that Immigration Judges will mistakenly determine that aliens do not fall under the mandatory detention scheme. There is general language in the supplementary materials regarding the need to ensure the safety of the public and to implement the purposes of the Act that give impetus to this view. There is also, however, language which supports and reinforces the importance of Immigration Judges’ decisions as a safeguard in circumstances where a general rule mandates detention.
In its discussion supporting the adoption of a general rule regarding mandatory detention, the Department, citing Reno v. Flores, 507 U.S. 292 (1993), stated:
Like the regulation upheld in Flores, the final rule provides for an individualized hearing on whether an alien in custody actually falls within a category of aliens subject to mandatory detention. In determining or redetermining custody conditions, the district director or IJ necessarily asks such individualized questions as . . . “is there reason to believe that this person falls within a category barred from release under applicable law?” . . . Under Flores, the IJ or district director may validly enforce the regulatory policy of detaining those classes of aliens whose release has been determined by Congress or the Attorney General to present unacceptable risks. Cf. Davis [v. Weiss], 749 F. Supp. [47,] 52 [(D. Conn. 1990)]. (“The most effective procedures are those already built into (one of the TPCR’s predecessors), namely those procedures which ensure that the alien is rightfully an ‘aggravated felon’ under the [Immigration and Nationality Act] and is properly subject to mandatory detention.“).
63 Fed. Reg. 27,444-45 (emphasis added).
Here, in a paragraph asserting the propriety of a general rule barring
The automatic stay authority is one which permits the Service to continue mandatory detention in the face of an Immigration Judge’s determination that bond or release are possible in cases “subject to” section 236(c)(1) of the Act. The statements cited above give force to the view that the Immigration Judge’s very different determination, that an alien does not fall under the mandatory detention scheme at all, is intended to bring an end to mandatory detention.
In addition, on page 27,445 of the Federal Register cited above, the Department said:
Congress has exercised this power in AEDPA and IIRIRA by barring permanent residents convicted of an aggravated felony from seeking discretionary relief from removal. The elimination of relief considerably increases flight risk, see, e.g., Bertrand v. Sava, 684 F.2d 204, 217 n.16 (2d Cir. 1982) (“The fact that the petitioners are unlikely to succeed on their immigration applications * * * suggests that they pose * * * a risk (to abscond) if (released.“) (Emphasis added.)
Assuming that to be true, it clearly applies principally to those falling under the mandatory detention scheme. Once the Immigration Judge has determined that the alien does not fall within that category, the likelihood of success for the alien is greater, and the degree of risk in absconding accordingly less. This statement also gives rise to the inference that the capacity to continue detention automatically was intended to reach only those subject to the mandatory detention scheme.
Third, the majority suggests that if
However, it is unclear that this should be an issue of concern. In the regulatory history discussing the automatic stay provision, the Department clearly indicated its intent that this authority would be invoked infrequent
Finally, in attempting to read these two potentially conflicting sections in harmony, we are required to consider the potential impact of the different readings upon the operation of the regulation and the immigration law in general to determine whether they accord with the regulation’s language and intent. If the majority’s position is adopted, then:
(1) an alien who has been determined by the Immigration Judge to fall outside the scope of section 236(c)(1) will continue in mandatory detention, without further review or adjudication of the Immigration Judge’s decision that provides for his or her freedom, for a period of 3 to 6 months, while the party(s) prepare and submit appeals to the Board and the Board adjudicates the appeals;
(2) during the period while the Service’s bond appeal is pending, the Government will continue to bear the burden of incarcerating an alien who has been determined by the Immigration Judge to be not subject to the detention mandates under which he or she is being held. This would occur at a time when the detention capacity of the Government is increasingly strained; and lastly,
(3) while the decisions of Immigration Judges regarding bond and merits would remain subject to appeal to the Board, the decision regarding continuing detention, of the most immediate interest in time, would be made by the Service and not be subject to Board review for months.
Each of these consequences would occur despite the provision of an alternate mechanism in the regulation for the Service to seek a stay of an Immigration Judge’s release order, specifically the general emergency stay authority provided to the Board in
On the other hand, if we interpret the interplay between
(1) the above-described adverse consequences inherent in the majority’s position
(2) the Service would still have the opportunity to request that a general discretionary stay be granted by the Board. In that event, both the Service and the alien would have immediate recourse to the Board for a decision regarding whether or not the Immigration Judge correctly decided that the alien is eligible for release, ensuring that any continued detention, with its resource and liberty implications, would be supported by the Board’s decision on the emergency stay; and lastly,
(3) the question whether an Immigration Judge’s release order may be stayed in a case where the Service has charged an alien under one of the mandatory detention provisions, but the Immigration Judge has found the charge(s) unsupported, will be decided by the Board of Immigration Appeals, the same entity that will decide the overall issues of the alien’s removability in the context of the Service’s merits and bond appeals.
When we can interpret the regulations in a manner that gives effect to the Immigration Judge’s determination that an alien is not properly included in the class of aliens who are subject to mandatory detention, while at the same time ensuring the Service an appropriate means to seek an emergency discretionary stay of the Immigration Judge’s resulting release order, we should do so. Consistent with that end, it is my view that, except where the Service seeks and is granted a discretionary emergency stay by the Board, effect should be given to an Immigration Judge’s order releasing an alien as a result of his considered judgment that the alien is not “subject to” mandatory detention and does not otherwise merit continued detention.
For all the reasons set forth above, most particularly the clear meaning of the regulatory wording, I believe that the Immigration Judge’s determination that an alien is not subject to the mandatory detention scheme set forth in section 236(c)(1) of the Act brings the case outside the reach of the automatic stay.