Tooby's California Post-Conviction Relief for Immigrants

 

Since October 9, 1998, the mandatory detention provisions of the 1996 immigration legislation have been in effect.[46]  The DHS issued new Detention Guidelines, which recognize that 100 percent compliance with the statute may not immediately be possible or even desirable, so immigrants previously released on bond are generally not being arrested even though they now fall within the mandatory detention guidelines.[47]

 

            The Detention Guidelines generally provide for mandatory detention, without bond, of all criminal aliens in removal proceedings, except for some of those removable under INA § 237, 8 U.S.C. § 1227, in certain circumstances:

 

(a)         for one conviction of a crime involving moral turpitude, if the sentence imposed[48] was less than one year in custody;

 

(b)    for a conviction for high-speed flight from an immigration checkpoint (18 U.S.C. § 758); or

 

(c)    for one conviction of crimes relating to domestic violence, stalking, and the abuse or neglect of children (hereinafter called “domestic violence” convictions) (so long as it does not also fall within the category of “crimes of moral turpitude,” (CMT) in which case mandatory detention would apply, as indicated above, if a sentence of one year or more is imposed.[49]  Multiple domestic violence convictions per se do not trigger mandatory detention, unless the convictions require mandatory detention when considered as convictions of crimes of moral turpitude.

 

            Mandatory detention is also required for noncitizens who are “inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title . . . .”[50]  Note that this statute speaks of having “committed” certain offenses, rather than as having been convicted of the commission of certain offenses.  The admissibility statute referred to lists (a) convictions of crimes of moral turpitude, (b) convictions of offenses related to a listed federal controlled substance, and (c) situations in which the DHS has “reason to believe” the noncitizen is or has been an illicit trafficker in a listed federal controlled substance.  In order to be inadmissible, as the mandatory detention statute requires, by reason of having committed a CMT or drug offense, it is necessary for the noncitizen to have been convicted of the commission of that offense.  It is, however, the case that mere “commission” of a trafficking offense, without a conviction, may trigger mandatory detention under this statute.

 

            In response to an increasing number of court decisions,[51] the DHS has determined that the mandatory detention provisions of INA § 236(c), 8 U.S.C. § x1226(c), apply only to noncitizens released from criminal sentence on or after October 9, 1998.[52]   All noncitizens in DHS mandatory detention whose criminal release date was earlier, but who have not yet been issued a final removal order, are eligible for a custody determination free of the mandatory detention statute applying “normal factors to determine bond conditions, such as an individual's likelihood of danger to the public, flight risk, health factors, equities, family ties, etc.”[53]

 

The Board of Immigration Appeals (BIA) has recently held that: “A criminal alien who is released from criminal custody after the expiration of the Transition Period Custody Rules is subject to mandatory detention pursuant to section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c) (Supp. V 1999), even if the alien is not immediately taken into custody by the Immigration and Naturalization Service when released from incarceration.”[54]  While the DHS may or may not enforce this broadened interpretation of the mandatory detention statute, the BIA has held they may do so if they wish.

[46] INA § 236(c); See generally Kerwin & Wheeler, The Detention Mandates of the 1996 Immigration Act: An Exercise in Overkill, 75 Interpreter Releases 1433 (October 19, 1998).

[47] Memorandum from Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, concerning Detention Guidelines Effective October 9, 1998, dated October 7, 1998, reprinted at AILA Monthly Mailing, December, 1998, p.1115.

[48] For the statute defining sentence imposed, see INA § 101(a)(48)(B); 8 U.S.C. § x1101(a)(48)(B).

[49] Ibid.

[50] INA § 236(c)(1)(A); 8 U.S.C. § 1182(c)(1)(A).

[51] E.g., Velasquez v. Reno, 1999 WL 194198  (D.N.J. 1999); Alwaday v. Beebe,1999 WL 184028 (D. Ore. 1999); Alves-Curras v. Fasano, 98 CV 2295 (S.D. Cal.1999); Reyes-Rodriguez v. Fasano, 99 CV 0023 (S.D. Cal. 1999); Sena v. Fasano, 99 CV 715 BTM (RBB) (S.D. Cal. 1999); Baltazar v. Fasano, 99 CV 380 BTM (S.D. Cal. 1999); Alvarado-Ochoa v. Reno, 99-0470-IEG(AJB) (S.D. Cal. 1999); Aguilar v. Lewis, 98-99-662-A (E.D. Va. 1999); Grant v. Zemski, 99-2620 (E.D. Pa. 1999); Abdel-Fattah v. Reno, 3:99-CV-0947 (M.D. Pa. 1999); Saucedo-Tellez v. Perryman, 99-C-1396 (N.D. Ill. 1999); Miranda-Arteaga v. Reno, 3:CV-99-0949 (M.D. Pa. 1999); Kuhali v. Ingham, 1:99-CV-00156 (W.D. N.Y. 1999); Rodriguez v. Pasquarell, SA-98-CA-1086-OG (W.D. TX 1999); Zargo v. Reno, 99-1938 (NHP) (D. N.J. 1999); Rivera v. Demore, C99-3042 TEH (N.D. Cal. 1999).

[52] Memorandum for Regional Directors, Field Guidelines for Applying Revised Interpretation of Mandatory Custody Provisions (7/12/99) effective 7/13/99.  If no actual custody is imposed, the sentence date is considered the date of release.  Id. at p.2, n.2.

[53] Id. at p.3.

[54] Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001).