Interim Decision #3137
MATTER OF EDEN
In Bond Proceedings Pursuant To 8 C.F.R. § 242.2(d)
A-8361718
Decided by Board June 14, 1990
An alien convicted of an aggravated felony is subject to detention under section
242(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2) (1988), upon
completion of the incarceration or confinement ordered by the court for such
conviction.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Ira J. Kurzban, Esquire David M. Dixon
Kurzban, Kurzban & Weinger, P A Appellate Counsel
2650 S.W. Z7th Avenue, 2nd Floor
Miami, Florida 33133 Kenneth S. Hurewitz
General Attorney
BY: Milhollara, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
The Immigration and Naturalization Service has appealed from the
immigration judge's decision dated December 6, 1989, granting the
respondent's request for a bond redetermination hearing and setting
bond at $10,000. The Service's request for oral argument before this
Board was waived by appellate counsel for the Service. The appeal will
be sustained, and the record will be remanded to the immigration
judge.
The respondent is a 45-year-old native of the United Kingdom and
citizen of Canada. An Order to Show Cause, Notice of Hearing, and
Warrant for Arrest of Alien (Form I-221S) dated November 7, 1989,
alleges that the respondent was admitted to the United States as an
immigrant on August 29, 1952, at Blaine, Washington.
On March 10, 1989, the respondent was convicted in the United
States District Court for the Southern District of Florida for possession with intent to distribute diazepam in violation of 21 U.S.C.
§ 841(a)(1) and
18 U.S.C. §§ 2(a) and (b) (1988). The respondent was
sentenced by the court as follows:
IT IS THE JUDGMENT OF THIS COURT THAT: the defendant shall be
committed to the custody of the U.S. Attorney General or his authorized representa-
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Interim Decision #3137
tive for imprisonment for a term of SIX (6) MONTHS. It is further ordered that the
defendants (sic) confinement take place at a Community Treatment Center.
1T IS ORDERED AND ADJUDGED that the defendant shall serve a special parole
term of TWO (2) YEARS.
The respondent completed his period of confinement and was arrested
and taken into custody by the Service while on special parole.
The Service determined that the respondent was to be continued in
custody without bond pursuant to section 242(a)(2) of the Immigration
and Nationality Act, 8 U.S.C. § 1252(a)(2) (1988), on the ground that
he was 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). He is charged
with deportability under section 241(a)(4)(13) of the Act,
8 U.S.C.
§ 1251(a)(4)(B) (1988), for conviction of an aggravated felony, and
under section 241(a)(11) of the Act, for conviction of a controlled
substance violation. The respondent requested a redetermination of
his custody status by the immigration judge.
In a decision dated December 6, 1989,' the immigration judge
found that section 242(a)(2) of the Act was inapplicable to the
respondent because he had not completed his sentence within the
meaning of that provision. He further found that the respondent had
been properly detained under section 242(a)(1) of the Act. The
immigration judge concluded that the respondent was eligible for
release from Service custody upon the posting of a bond in the amount
of $10,000.
On appeal, the Service contends that the immigration judge erred in
finding that the respondent was not subject to mandatory detention
under section 242(a)(2) of the Act. In the alternative, the Service
contends that the amount of bond set by the immigration judge is
insufficient. We fmd that the respondent's detention was required
under section 242(a)(2) and that he is ineligible for release from
custody under that section. i herefore, the appeal will be sustained,
and the record will be remanded to the immigration judge.
Section 242(a) of the Immigration and Nationality Act states in part
as follows:
(a)(1) Pending a determination of deportability in the case of any alien as
provided in subsection (b) of this section, such alien may, upon warrant of the
Attorney General, be arrested and taken into custody. Except as provided in
paragraph (2), any such alien taken into custody may, in the discretion of the
Attorney General and pending such final determination of deportability, (A) be
continued in custody; or (13) be released under bond in the amount of not less than
$500 with security approved by the Attorney General, containing such conditions as
the Attorney General may prescribe; or (C) be released on conditional parole. ...
I The record contains a metnorandum dated December 14, 1989, by the immigration
judge concerning the basis for his decision.
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Interim Decision #3137
(2) The Attorney General shall take into custody any alien convicted of an
aggravated felony upon completion of the alien's sentence for such conviction.
Notwithstanding subsection (a), 2 the Attorney General shall not release such felon
from custody.
Section 242(a) of the Act, as amended by the Anti-Drug Abuse Act of
1988, Pub. L. No. 100-690, § 7343(a),
102 Stat. 4181, 4470 (effective
Nov. 18, 1988).
Section 242(a)(2) is, on its face, a mandatory detention provision
relating to aliens convicted of an aggravated felony. Such detention is
required "upon completion of the alien's sentence for such conviction." The issue in this case is the proper interpretation of this phrase.
As in all cases of statutory construction we begin with the language
of the statute itself. INS v. Cardoza-Fonseca,
480 U.S. 421, 431 (1987);
INS v. Phinpathya,
464 U.S. 183, 189 (1984). The key word "sentence"
in section 242(a)(2) is not limited to one clear meaning. On the one
hand, "sentence" may refer simply to the judgment or order by which
the court assigns punishment. Black's Law Dictionary defines "sentence" as follows:
The judgment formally pronounced by the court or judge upon the defendant after
his conviction in a criminal prosecution, imposing the punishment to be inflicted.
Judgment formally declaring to accused legal consequences of guilt which he has
confessed or of which he has been convicted. The word is properly confined to this
meaning. In civil cases, the terms "judgment," "decision," "award," "finding," etc.,
are used.
Black's Law Dictionary 1222 (5th ed. 1979) (citation omitted). A
plausible interpretation of section 242(a)(2) using this definition of
"sentence" would be that an alien convicted of an aggravated felony is
subject to mandatory detention upon completion of the sentencing
phase of his criminal proceedings. However, "upon completion of the
alien's sentence" seems at least an awkward way of referring to the
issuance of the court's sentencing order.
Alternatively, Webster's Third New International Dictionary recognizes that "sentence" as commonly used may refer not only to the
order imposing punishment but to the punishment itself:
(Sentence:1 the order by which a court or judge imposes punishment or penalty upon
a person found guilty; _ .. the punishment or penalty so imposed.
Webster's Third New International Dictionary 2068 (1986). We find
that the common-sense reading of "upon. completion of the alien's
sentence" in section 242(a)(2) uses the word "sentence" to refer in
some way to the punishment ordered instead of the order itself.
This conclusion is supported. by the .statement of Senator Alphonse
D'Amato upon concurrence of the Senate in House bill 5210 which
2 This reference should be to "paragraph (1)" rather than to "subsection (a)."
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Interim Decision #3137
was enacted into law as the Anti-Drug Abuse Act of 1988 and added
section 242(a)(2) to the Immigration and Nationality Act. Concerning
the language of section 242(a)(2) Senator D'Amato stated:
The Bill requires the Federal Government to put aggravated alien felons in detention
immediately after they serve their criminal sentence.
134 Cong. Rec. S17318 (daily ed. Oct. 21, 1988) (emphasis added).
The parties in this case agree that "sentence" in. section 242(a)(2)
refers to the punishment ordered and not simply the order imposing
punishment. Their disagreement concerns whether Congress intended
to refer to more than incarceration. The Service contends that
"sentence" in section 242(a)(2) refers only to the actual incarceration
served by the alien as a result of the court's judgment. The respondent
contends that his special parole is no less a part of his "sentence" than
his confinement, and therefore that authority to detain him pursuant
to section 242(a)(2) does not exist until his parole term is satisfied.
Again, both alternatives are legitimate uses of the word "sentence."
First, "sentence," in the context of referring to the punishment
ordered by a court, may be limited in its meaning to the period of
incarceration or confinement ordered by the court. It is commonly
stated, for example, that a defendant's sentence is suspended and he is
placed on probation; "sentence" in this instance plainly refers only to
the period of incarceration or confinement imposed by the court. This
usage is consistent with the notion of probation or parole as a period of
grace relieving a defendant from serving his entire period of incarceration. See United States v. Torrez-Flores, 624 F.2d 776 (7th Cir. 1980).
It is also consistent with the definitions of "probation" and "parole."
See Black's Law Dictionary 1006, 1082 (5th ed. 1979) ("Probation"
defined in one sense as Isjystem of allowing a person convicted ... to
avoid imprisonment, under a suspension of sentence," and
"(pirobation is release by court before sentence has commenced."
"Parole" defined in one sense as Irielease from jail, prison or other
confinement after actually serving part of sentence.").
Of course, options such as probation, parole, supervised release,
etc., may also be specifically included in a sentence by statutory design
and, as such, may commonly be referred to as part of the sentence.
Whether options such as probation should be considered as part of the
sentence is a frequently debated topic. Compare Hinman v. United
States, 730 F.2d 649, 651 (11th Cir. 1984) ("special parole" not to be
treated as "sentence" for purposes of determining judicial compliance
with plea bargaining agreements); Sims v. United States, 607 F.2d 757,
759 (6th Cir. 1979) (imposition of 5-year prison term upon revocation
of probation for 2 years is not double jeopardy because defendant
"had not been sentenced"); Dunn v. United States,
561 F.2d 259, 261
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Interim Decision #3137
(D.C. Cir. 1977) (court ordering probation under section 5010(a) of
the Youth Corrections Act is exercising option in lieu of sentencing
and not imposing a "sentence" within the strict meaning of the word);
United States v. Becker, 536 F.2d 471, 473 (1st Cir. 1976) ("Probation
and sentence are separate and distinct"); United States v. Fultz, 482
F.2d 1, 4 (8th Cir. 1973) ("Probation ... is in no sense a sentence as
that term is used in the [Probation] Act."); United States v. Glasgow,
389 F. Supp. 217, 220 n.6 (D.D_C. 1975) (same as Dunn v. United
States, supra) with United States v. Kamer,
781 F.2d 1380, 1388 (9th
Cir. 1986) ( [W]ithin the plea bargaining context, where the reason-
"
able understanding and expectations of the parties prevail, probation
is commonly understood to be a sentence."); United States v. Condit,
621 F.2d 1096, 1098 (10th Cir. 1980) (finding that "for purposes of
28
U.S.C. § 2255 and
18 U.S.C. § 3653 ... probation is merely one form
of sentence"); United States v. Rodgers,
588 F.2d 651, 654 (8th Cir.
1978) (stating that "probation is a sentence within the meaning of
18
U.S.C. § 3653"); Nicholas v. United States,
527 F.2d 1160, 1162 (9th
Cir. 1976) (finding that "probation is a 'sentence' within the meaning
of section 3653"); Napoles v. United States,
536 F.2d 722, 725 (7th Cir.
1976) ("We conclude that probation is a sentence within the meaning
of the provisions of § 2255 and § 3653 .... "); Smith v. United States,
505 F.2d 893, 895 (5th Ch. 1974) ("Probation is a sentence like any
other sentence.").
The Anti-Drug Abuse Act of 1988 was submitted without a Senate
or House Report. See 1988 U.S.C.C.A,N. 5937. However, based on
our review of the remarks of members of Congress and the history of
attempts to add section 242(a)(2), we find that Congress intended its
employment of "sentence" in this provision to refer only to the time a
defendant serves on the period of incarceration or confinement
ordered as a result of his conviction for an aggravated felony.
The initial proposals concerning the detention of alien aggravated
felons clearly indicated that Congress sought to detain such aliens
without release throughout the pendency of their deportation proceedings. Senate bill 972 introduced by Senator Lawton Chiles of Florida
on the legislative day of March 30, 1987, stated in relevant part:
(2)(A) Any alien arrested under paragraph (1) [of section 242(a) of the Act]
pending a determination of whether such alien is deportable on grounds of having
been convicted of an aggravated felony shall not be released from custody and shall
not be entitled to conditional parole. An alien held in custody under this paragraph
by State or local authorities shall promptly be transferred to the custody of the
Attorney General.
S. 972, 100th Cong., 1st Sess., 133 Cong. Rec. 8772 (1987); cf. 133
Cong. Rec. 8771 (1987) (remarks of Sen. Chiles); 133 Cong. Rec.
H8961 (daily ed. Oct. 22, 1987) (remarks of Rep. Smith on cone-
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Interim Decision #3137
sponding House bill 3529). Under this proposal an aggravated felon
would be detained from the time of his arrest by the Attorney General
under section 242(a)(1) throughout his deportation proceedings. The
proposal contemplates that any alien aggravated felon held by state or
local authorities would promptly be transferred to Service custody.
Upon introduction of this same language as part of Senate bill 2852
on the legislative day of September 26, 1988, Senator Chiles stated:
Another component of our law enforcement title acknowledges a fairly recent
development in narcotics trafficking; that is, the connection between illegal aliens
and drug trafficking. I am pleased that members of the working group accepted as
part of its initiative my package of bills which sets up a statutory scheme to ensure
that illegal aliens convicted of drug or violent crimes are incarcerated until they are
returned to their homeland, thus denying them any kind of parole or voluntary
departure. This package requires incarceration of any convicted alien felon ....
134 Cong. Rec. S14112 (daily ed. Oct. 3, 1988) (emphasis added).
On October 21, 1988, the House and Senate concurred in an
amended version of House bill 5210 which contained the present
language of section 242(a)(2) and which became the Anti Drug Abuse -
Act of 1988. See H.R. Res. 595, 100th Cong., 2d Sess., 134 Cong. Rec.
H11108, 1111195 (daily ed. Oct. 21, 1988); 134 Cong. Rec. S17301
(daily ed. Oct. 21, 1988).
The respondent contends that the change between the earlier
proposed language for section 242(a)(2) dating back to March of 1987,
and the language which was enacted into law, indicates that Congress
abandoned its goal of maintaining an alien convicted of an aggravated
felony in custody pending a final determination of his deportability.
We disagree. A more reasonable explanation for the change concerns
the question of when the Federal Government must take over custody
of an aggravated felon. Under the earlier drafts, an alien who was
serving time in a state prison as a result of his aggravated felony
conviction would be transferred promptly to the custody of the
Service. We find that the enacted provision reflects Congress' decision
to allow the alien serving time in the state or local facility to finish out
that time before the Service assumes responsibility for his incarceration. Through the cooperation of state and local governments and the
Federal Government the alien remains detained. We are not persuaded that in enacting section 242(a)(2) Congress intended to allow an
aggravated felon to be released into the community on, for example,
probation, only to require mandatory detention, possibly years later,
following that probation.
Therefore, we conclude that "sentence" in section 242(a)(2) refers
to the period of incarceration or confinement ordered by the court.
The respondent's period of confinement was complete upon his release
from the community treatment center after 4 1/2 months. Accordingly,
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the immigration judge erred in finding that the respondent was not
subject to detention by the Service under section 242(a)(2) of the Act
upon release from confinement for his conviction of an aggravated
felony.
ORDER: The appeal is sustained, and the record is remanded
to the immigration judge.
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