Interim Decision #3438
In re Neville George WEST, Respondent
File A41 361 806 - Newark
Decided as amended October 26, 20001
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The mandatory detention provisions of section 236(c) of the Immigration and Nationality
Act, 8 U.S.C. § 1226(c) (Supp. IV 1998), do not apply to an alien who was convicted after the
expiration of the Transition Period Custody Rules (“Transition Rules”), but who was last
released from the physical custody of state authorities prior to the expiration of the Transition
Rules and who was not physically confined or restrained as a result of that conviction.
Robert Frank, Esquire, Newark, New Jersey, for respondent
Patrice M. Rodman, Assistant District Counsel, for the Immigration and Naturalization Service
Before: Board Panel: HEILMAN, FILPPU, and MOSCATO, Board Members.
FILPPU, Board Member:
In a bond decision dated August 30, 1999, an Immigration Judge determined that the respondent was not subject to mandatory detention under
section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c)
(Supp. IV 1998), granted the respondent’s request for a change of custody
status, and set bond in the amount of $5,000. The Immigration and
Naturalization Service has appealed only from the Immigration Judge’s
finding that the respondent is not subject to mandatory detention under section 236(c) of the Act. The appeal will be dismissed.
I. FACTS AND PROCEDURAL HISTORY
The facts in this bond appeal are not in dispute. On April 10, 1997, the
respondent was arrested and charged with various offenses, including pos-
1
On our own motion, we amend the July 28, 2000, order in this case. The amended order
makes editorial changes consistent with our designation of the case as a precedent.
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session of marijuana with intent to distribute in violation of section 2C:35-
5(b)(11) of the New Jersey Statutes Annotated. He was indicted for these
offenses on December 9, 1997, and, after posting bond, was released from
state custody on December 10, 1997. On September 29, 1998, the respondent pled guilty to the drug charge and to a charge of receiving stolen property. On February 5, 1999, he was sentenced to 1 year of probation for each
offense.
On August 12, 1999, the Service took the respondent into custody and
served him with a Notice to Appear (Form I-862). The Service charged
that, because of his drug conviction, the respondent was subject to removal
under sections 237(a)(2)(A)(iii) and (B)(i) of the Act, 8 U.S.C. §§
1227(a)(2)(A)(iii) and (B)(i) (Supp. IV 1998). The record before us indicates that the respondent was not in physical custody under New Jersey
criminal proceedings at any time after he posted criminal bond on
December 10, 1997.
II. IMMIGRATION JUDGE’S DECISION
The Immigration Judge analyzed the language of section 236(c)(1) of the
Act, which mandates the detention of certain categories of aliens “when the
alien is released, without regard to whether the alien is released on parole,
supervised release, or probation” (the “when released” language). He further
considered the last sentence of section 303(b)(2) 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”), which provides that the
provisions of section 236(c) of the Act “shall apply to individuals released
after” October 8, 1998, the date on which the Transition Period Custody
Rules (“Transition Rules”) expired (the “released after” language).
The Immigration Judge determined that the Service may take an alien
into custody once he or she is free from physical restraint by the state. He
concluded that the respondent was not subject to mandatory detention
because he was free from physical restraint prior to the expiration of the
Transition Rules when he posted bail following his arrest in December
1997. He ordered that bond be set in the amount of $5,000 after finding that
the respondent did not pose a danger to property or persons and was unlikely to abscond.
III. ANALYSIS
Although we agree with the Immigration Judge that the respondent is
not subject to the mandatory detention provisions of section 236(c) of the
Act because he was free from physical restraint prior to the expiration of the
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Transition Rules, the focus of our analysis is substantially different, and we
do not necessarily subscribe to the subsidiary points supporting his conclusion. However, the Immigration Judge applied the correct standard governing aliens subject to section 236(a) of the Act, and the Service has not
appealed the amount of the bond. See Matter of Adeniji, 22 I&N Dec. 1102
(BIA 1999);
8 C.F.R. § 236.1(c)(8) (2000).
The Service proposes that the issue to be resolved in this case turns on
the definition of the “when released” language of section 236(c) of the Act
and asserts that, when the alien is not sentenced to imprisonment, the date of
sentencing should be the date of “release” for the purpose of mandatory
detention. As revealed by our analysis in Matter of Adeniji, supra, however,
the initial issue to be resolved in this case is whether the respondent was
“released after” the expiration of the Transition Rules on October 8, 1998, so
as to trigger the mandatory detention provisions of section 236(c) of the Act.
We noted in Matter of Adeniji, supra, that the respondent, and subsequently the Service, contended that the “released after” language of section
303(b)(2) of the IIRIRA made section 236(c) of the Act applicable only to
aliens released from criminal custody after the expiration of the Transition
Rules. Id. at 1108. We commented that the natural sense of the words would
seem to point in the direction advanced by the parties, but we found ambiguity in the term “released” because it “is not expressly tied to any other
language that would clarify whether it refers to release from criminal custody, Service custody, or some other form of detention.” Id. at 1108. We
observed that “[t]he parties’ proposed reading . . . extends mandatory detention only to aliens who have been released from criminal (and perhaps psychiatric and other nonService) confinement after the expiration of those
rules.” Id. We accepted the proposed reading of the last sentence of section
303(b)(2) of the IIRIRA and held that the respondent was not subject to
mandatory detention under section 236(c) of the Act because “he was
released from his nonService custodial setting (i.e., from criminal custody)
prior to the expiration of the Transition Rules.” Id. at 1111.
The respondent in Matter of Adeniji had been released from the state’s
custody, physical or otherwise, prior to the expiration of the Transition
Rules, because he was convicted, incarcerated, and released from confinement while the Transition Rules were in effect. In this case, the respondent
was also released from the physical custody of the state and convicted while
the Transition Rules were in effect, but he was sentenced to probation after
the expiration of the Transition Rules.
On appeal, the Service does not dispute that only aliens released after
the expiration of the Transition Rules are subject to the mandatory detention provisions of section 236(c) of the Act. However, focusing its argument
on the “when released” language of section 236(c), the Service asserts that
if an alien is not sentenced to imprisonment, it is the date of “release” from
the criminal proceeding itself, which occurs at the time of sentencing, that
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triggers the application of the mandatory detention provisions. We assume
that the Service would make essentially the same argument regarding the
“released after” language of section 303(b)(2) of the IIRIRA. That is, the
pertinent date for determining the applicability of section 236(c) of the Act
is the date of release from the technical custody of the criminal court, and
not the date of release from physical custody. Therefore, in order to decide
this case, we must determine whether the word “released” in the “released
after” language in the last sentence of section 303(b)(2) of the IIRIRA
refers to the respondent’s release from physical custody, or to his release
from the jurisdiction of the New Jersey court at the time of sentencing.
In construing a statutory term, we must start with the language of the
statute, and the word should be given its “‘ordinary or natural’” meaning.
Bailey v. United States, 516 U.S. 137, 145 (1995) (quoting Smith v. United
States,
508 U.S. 223, 228 (1993)). “Release” is variously defined as “[t]o
set free from confinement, restraint, or bondage,” or “[t]o unfasten, free, or
let go of.” Webster’s II New College Dictionary 936 (1995). We determined in Matter of Adeniji, supra, that the “released after” language refers
to release from nonService custody. However, the language is ambiguous to
the extent that it does not specify the type of nonService custody from
which the alien is released. The Service contends that it is clear that the term
“released” can have a meaning other than release from physical restraint.
A provision that can seem ambiguous in isolation is often clarified by
examining how the same terminology is used elsewhere in the statutory
scheme. United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., 484
U.S. 365, 371 (1988). The words “release” or “released” are used several
times in section 303 of the IIRIRA. Among the various provisions enacted
by section 303 are those governing bond for aliens held by the Service
pending completion of removal proceedings. The use of the term “release”
in the provisions relating to the release of an alien on an immigration bond
obviously refers to release of the alien from the physical custody of the
Service. See sections 236(a)(2), (c)(2), (e) of the Act (as enacted by IIRIRA
§§ 303(a), 110 Stat. at 3009-585; 303(b)(3)(B), 110 Stat. at 3009-587).
In addition, the word “released” in the “when released” language of
section 236(c) and of the Transition Rules is modified by the subsequent
clauses: “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.” Section 236(c)(1) of the
Act (as enacted by IIRIRA §§ 303(a), 110 Stat. at 3009-585; 303(b)(3)(A),
110 Stat. at 3009-587). “Parole” means the conditional release of a prisoner who has served part of the term for which he was sentenced to prison.
Black’s Law Dictionary 1116 (6th ed. 1990). “Probation” means a sentence
“whereby a convicted criminal offender is released into the community
under the supervision of a probation officer in lieu of incarceration.” Id. at
1202. “Supervised release” under federal criminal law is a period of super-
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vision following completion of a prison term. See Cuomo v. Barr, 7 F.3d 17,
18 (2d Cir. 1993). The natural reading of the words “released on” within
the context of these clauses of section 236(c)(1) of the Act suggests that
Congress is referring to the release of an alien from a restrictive form of
criminal custody involving physical restraint to a less restrictive form of
criminal custody without physical restraint. The reference in the last clause
of the sentence to the possibility that the alien may be returned to a criminal custody status involving physical restraint (the “arrested or imprisoned
again” language) buttresses this interpretation of the word “released.”
The other use of the word “release” in section 303 of the IIRIRA is
found in the section mandating that the Attorney General designate and
train Service employees to serve as a liaison to law enforcement agencies,
correctional agencies, and courts “with respect to the arrest, conviction, and
release of any alien charged with an aggravated felony.” See section
236(d)(1)(B) of the Act (as enacted by IIRIRA § 303(a), 110 Stat. at 586).
We draw no meaningful guidance from this provision on the question of the
meaning of the word “released” in the last sentence of section 303(b)(2) of
the IIRIRA.
Although the focus of the Service’s argument is on the interpretation of
the word “released” in the “when released” language of section 236(c)(1) of
the Act, we consider it appropriate to briefly summarize and respond to its
other contentions in order to clarify our holding. The Service makes several arguments against interpreting the word “released” to mean freedom
from physical restraint. The Service claims that certain statutory provisions
of section 236(c) of the Act would be rendered ineffective by insistence on
a “release” from physical custody. Citing to Matter of Noble, 21 I&N Dec.
672, 681-82 (BIA 1997), the Service offers the following as examples of
aliens who would not be subject to mandatory detention: terrorists
described in section 236(c)(1)(D) of the Act who have never been convicted of a crime, and aggravated felons described in section 236(c)(1)(B) of
the Act who are not imprisoned, whether as the result of suspended sentences or of sentencing to probation. The Service also asserts that Congress
clearly viewed aggravated felons as a category of criminal aliens who
should be detained based solely on the nature of their convictions. In addition, the Service argues that the word “probation” in the “when released”
language would become superfluous if a release from physical custody is
required, and that a physical custody interpretation conflicts with the
Board’s decision in Matter of Adeniji, supra, in which we acknowledged
that the term “released” could refer to psychiatric or other nonService confinement situations.
We do not find the Service’s arguments convincing. The use of the
words “release” or “released” in section 303 of the IIRIRA consistently
appears to refer to a form of physical restraint. Furthermore, interpreting the
word “released,” as used in the “released after” language of section
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303(b)(2) of the IIRIRA, to mean freedom from physical restraint does not
necessarily preclude the application of the mandatory detention provisions
of section 236(c) of the Act to criminal aliens who have not been released
from a term of imprisonment after October 8, 1998. “Released” in this context can also refer to release from physical custody following arrest, as is
the case with the respondent. We find support for this interpretation in the
fact that section 236(c) of the Act requires detention “when the alien is
released, . . . without regard to whether the alien may be arrested . . . again
for the same offense.”
In Matter of Adeniji, supra, we accepted the interpretation proposed by
the Service even though it created certain anomalies. The Service now
points to other anomalies that we noted in Matter of Noble, supra. In our
judgment, these anomalies bear mainly on the issues that we resolved in
Matter of Adeniji. However, the Service does not seek to revisit Matter of
Adeniji itself.
In the end, we are not persuaded to accord the statutory language any
meaning other than that which we derive from an examination of the statute
as a whole. As such, we construe the word “released” in the last sentence of
section 303(b)(2) of the IIRIRA to refer to a release from physical custody.
The respondent was last released from the physical custody of the State of
New Jersey on December 10, 1997, prior to the expiration of the Transition
Rules. He is therefore not subject to mandatory detention.
Accordingly, the appeal will be dismissed.
ORDER: The appeal of the Immigration and Naturalization Service
is dismissed.
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