ROJAS

Cite as 

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               In re Victor Leonardo ROJAS, Respondent
                             File A43 903 708 - Boston
                                Decided May 18, 2001
                           U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

    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, 

(c) (Supp. V 1999), even if the alien
is not immediately taken into custody by the Immigration and Naturalization Service when
released from incarceration.
FOR RESPONDENT: James C. Dragon, Esquire, Lowell, Massachusetts

BEFORE:         Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice
                Chairman; HEILMAN, HOLMES, HURWITZ, FILPPU, COLE,
                MATHON, JONES, GRANT, and OHLSON, Board Members.
                Concurring and Dissenting Opinion: MOSCATO, Board Member, joined by
                VILLAGELIU, Board Member. Dissenting Opinion: ROSENBERG,
                Board Member, joined by SCHMIDT, GUENDELSBERGER, MILLER,
                BRENNAN, ESPENOZA, and OSUNA, Board Members.
FILPPU, Board Member:

   In a bond order dated October 4, 2000, an Immigration Judge denied the
respondent’s request for a change in his custody status. The respondent filed a
timely appeal. The Immigration Judge’s reasons for the bond order are set forth
in a memorandum dated December 1, 2000. The respondent’s appeal will be
dismissed.

                                I. BACKGROUND
   The bond record as a whole creates some uncertainty regarding the precise
dates on which various relevant events took place. It is not critical to resolve
these uncertainties, because the relevant sequence of events is not in dispute.
For purposes of this bond appeal, we will accept the respondent’s factual
account.
   The respondent is a native and citizen of the Dominican Republic who was
admitted to the United States as a lawful permanent resident on December 26,
1992. He was convicted in New Hampshire on March 3, 1998, of the offense

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of possession of a controlled substance (cocaine) with intent to sell, and he was
sentenced to imprisonment for a term of 2½ to 5 years. The Immigration and
Naturalization Service initiated removal proceedings against the respondent by
issuance of a Notice to Appear (Form I-862), which was served on March 25,
1998. The Service charges that the respondent is subject to removal pursuant
to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 

(a)(2)(A)(iii) (Supp. V 1999), as an alien convicted of an aggravated
felony, and pursuant to section 237(a)(2)(B)(i) of the Act, as an alien convicted
of a controlled substance violation.
   The respondent was released from the custody of the State of New Hampshire
on parole. On July 26, 2000, the second day of his release on criminal parole,
he was taken into custody by the Service. The respondent requested a review by
an Immigration Judge of the Service’s custody determination. The respondent
argues that he is not subject to mandatory detention under section 236(c) of the
Act, 

(c) (Supp. V 1999), because he was not taken into custody
“when . . . released” from incarceration, but rather was free in the community
before being detained by the Service.

               II. IMMIGRATION JUDGE’S DECISION
   The Immigration Judge concluded that the respondent, who is deportable by
reason of having committed an offense covered in sections 237(a)(2)(A)(iii)
and (B)(i) of the Act, is subject to the mandatory detention provisions of section
236(c) of the Act. The Immigration Judge rejected the respondent’s argument
that he is not subject to section 236(c) because the Service failed to apprehend
him at the time of his release, instead waiting 2 days before taking him into
custody. The Immigration Judge therefore concluded that he did not have
jurisdiction to redetermine the custody conditions imposed by the Service in
this case. See 

(h)(2)(i)(D) (2001).

                         III. STATUTE AT ISSUE
  The question before us involves the interpretation of section 236(c) of the
Act, which provides, in relevant part, as follows:

     (1) CUSTODY.—The Attorney General shall take into custody any alien who—

       (A) is inadmissible by reason of having committed any offense covered in section
     212(a)(2),

       (B) is deportable by reason of having committed any offense covered in section
     237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),




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       (C) is deportable under section 237(a)(2)(A)(i) on the basis of an offense for which
     the alien has been sentence[d] to a term of imprisonment of at least 1 year, or

       (D) is inadmissible under section 212(a)(3)(B) or deportable under section
     237(a)(4)(B),

  when the alien is released, 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.

     (2) RELEASE.—The Attorney General may release an alien described in paragraph
  (1) only if the Attorney General decides . . . that release of the alien from custody is
  necessary [for certain witness protection matters], and the alien satisfies the Attorney
  General that the alien will not pose a danger to the safety of other persons or of property
  and is likely to appear for any scheduled proceeding. A decision relating to such release
  shall take place in accordance with a procedure that considers the severity of the offense
  committed by the alien.

                            IV. ISSUE PRESENTED
   The first paragraph of section 236(c) of the Act directs the Attorney General
to assume custody over certain categories of criminal and terrorist aliens. The
second paragraph of section 236(c) governs the “release” of these aliens. It
specifies that the Attorney General may release “an alien described in paragraph
(1)” only if certain strict conditions are met. The mandatory detention aspects
of the statute, therefore, derive from the language of section 236(c)(2).
Consequently, we must determine whether the respondent is “an alien described
in paragraph (1)” of section 236(c), even though he was not immediately taken
into custody by the Service when he was released from his criminal custody.
   In order to resolve the issue before us, we must determine whether an “alien
described in paragraph (1)” is a statutory reference to any alien who falls simply
within the discrete language of subparagraphs (A), (B), (C), or (D), or whether
it additionally refers to an alien who is taken into Service custody “when the
alien is released.” In other words, we must determine whether or not the phrase
“when the alien is released” is a necessary part of the description of the alien in
paragraph (1).
   The respondent has not disputed that he is deportable by reason of having
committed an offense covered in sections 237(a)(2)(A)(iii) and (B)(i) of the
Act. In addition, the record reflects that he was released from criminal custody
after the expiration on October 8, 1998, of the Transition Period Custody Rules
(“TPCR”), which were enacted by section 303(b)(3) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of 

 Stat. 3009-546, 3009-586 (“IIRIRA”). See Matter of Adeniji,
Interim Decision 3417 (BIA 1999) (holding that section 236(c) requires
mandatory detention of a criminal alien only if he or she is released from

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criminal custody after October 8, 1998, the last day that the TPCR were in
effect).
   In Matter of Adeniji, supra, we did not address the question whether section
236(c)(2) directs mandatory detention only if the Service immediately takes
custody of the alien “when the alien is released” from criminal incarceration
(the “when released” language). Id. at 8. We did note, however, that the effect
of the “when released” clause would appear to be of concern principally in the
case of an alien who was released after the expiration of the TPCR, but who was
not promptly taken into Service custody. Id. at 8-9 n.2. This is such a case.

       V. PRINCIPLES OF STATUTORY CONSTRUCTION
   Proper statutory construction must begin with the words used by Congress.
INS v. Cardoza-Fonseca, 

 (1987). We must start with the
language of the statute, and the words should be given their “‘ordinary or
natural’” meaning. Bailey v. United States, 

 (1995) (quoting
Smith v. United States, 

 (1993)); INS v. Phinpathya, 

 (1984). Where the language of the statute is clear, the inquiry is
ended. The unambiguously expressed intent of Congress must be given effect.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

 (1984). However, if an ambiguity is perceived when a provision
is read in isolation, it is often clarified when it is interpreted in the context of
the remainder of the statutory scheme. Bailey v. United States, supra, at 146;
K Mart Corp. v. Cartier, Inc., 

 (1988). The meaning assigned
to statutory language should be the one that emerges from a reading of the
statute as a whole, taking into account its object and policy. John Hancock Mut.
Life Ins. Co. v. Harris Trust & Sav. Bank, 

 (1993).
   In the context of this case, the literal language of section 236(c)(2) of the
Act, which provides for the detention of “an alien described in paragraph (1),”
does not unambiguously tell us whether it encompasses the “when the alien is
released” clause in section 236(c)(1) or merely references the four categories
of aliens described in subparagraphs (A) through (D). We find the statutory
provision, when read in isolation, to be susceptible to different readings. We
therefore find it necessary to examine more than the language in question, and
we turn in part to the remainder of the statutory scheme, taking into account its
objectives and policy in order to resolve the issue before us. See Bailey v.
United States, supra; John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav.

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       VI. BOARD INTERPRETATION OF SECTION 236(c)
                      OF THE ACT
                             A. Ordinary Meaning
   The natural reading of the statutory language of section 236(c)(2) of the Act
is not without importance, even though more than one reading may be
permissible. The statutory reference to “an alien described in paragraph (1)”
seems to us most appropriately to be a reference to an alien described by one
of four subparagraphs, (A) through (D). The “description” of the alien does not
naturally appear to include any or all of the concluding clauses of paragraph (1),
namely the clauses directing that a described alien be taken into custody “when
the alien is released, 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.”
   In Matter of Noble, 

 (BIA 1997), we analyzed the “when
released” clause contained in the TPCR. We concluded that this statutory
language imposed a duty on the Service to assume the custody of certain
criminal aliens and specified the point in time at which that duty arises. In other
words, we read the phrase “when the alien is released” in the TPCR as modifying
the command that the “Attorney General shall take into custody” certain
criminal aliens by specifying that it be done “when the alien is released” from
criminal incarceration.
   The structure of section 236 is identical, in this respect, to the structure of
the TPCR. The “when released” clause is no more a part of the description of
an alien who is subject to detention than are the other concluding clauses. Those
other concluding clauses simply make it plain that the duty to detain is not
affected by the character of an alien’s release from criminal incarceration or the
possibility that an alien may be rearrested on criminal charges. All of these
concluding clauses, including the “when released” clause, address themselves
to the statutory command that the “Attorney General shall take into custody”
certain categories of aliens, rather than to the description of those categories.

                        B. Overall Statutory Context
   The other statutory provisions pertaining to the removal process place no
importance on the timing of an alien’s being taken into custody by the Service.
   A number of the amendments made by the IIRIRA were aimed at expediting
the removal of aliens, and that is especially true for criminal aliens such as those
who fall within subparagraphs (A) through (D) of section 236(c)(1) of the Act.
For example, Congress made various forms of relief unavailable to criminal
aliens and significantly restricted judicial review for criminal aliens. See, e.g.,
section 240A(a)(3) of the Act, 8 U.S.C. § 1229b(a)(3) (Supp. V 1999) (barring

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permanent residents convicted of aggravated felonies from eligibility for
cancellation of removal); section 242(a)(2)(C) of the Act, 

(a)(2)(C) (Supp. V 1999) (restricting judicial review for certain criminal
aliens).
   There is no connection in the Act between the timing of an alien’s release
from criminal incarceration, the assumption of custody over the alien by the
Service, and the applicability of any of the criminal charges of removability.
Furthermore, the Act does not tie an alien’s eligibility for any form of relief
from removal to the timing of the alien’s release from incarceration and the
assumption of custody by the Service. In other words, the “when released” issue
is irrelevant for all other immigration purposes. The changes made by the
IIRIRA to expedite removal are not limited to aliens coming into Service
custody immediately upon release from criminal incarceration. Instead, the
amendments made by the IIRIRA cover criminal aliens regardless of when they
were released from criminal confinement and regardless of whether they had
been living within the community for years after their release.
   We understand, in this regard, that Congress was frustrated with the ability of
aliens, and particularly criminal aliens, to avoid deportation if they were not
actually in Service custody when their proceedings were completed. See S. Rep.
No. 104-48 (1995) (stating that many criminal aliens who are released pending
deportation never appear for their proceedings, and that some criminal aliens
abscond after being issued a final order of deportation); 141 Cong. Rec. S7803,
S7823 (daily ed. June 7, 1995) (statement of Sen. Abraham); see also Ofosu v.
McElroy, 

 (2d Cir. 1996) (stating that released aliens who
abscond calculate correctly that the Service lacks the resources to conduct a
dragnet). The statute does direct the Attorney General to take custody of aliens
immediately upon their release from criminal confinement. But Congress was
not simply concerned with detaining and removing aliens coming directly out
of criminal custody; it was concerned with detaining and removing all criminal
aliens.
   In sum, we discern that the statute as a whole is focused on the removal of
criminal aliens in general, not just those coming into Service custody “when . . .
released” from criminal incarceration. The objectives and design of the statute
as a whole are therefore not consistent with reading the “when released” clause
as being part of the meaning of “an alien described in paragraph (1),” as that
phrase is understood in section 236(c)(2) of the Act.

                         C. Predecessor Provisions
   The history of the statutory mandate to detain criminal aliens does not
indicate to us that Congress had a different meaning in mind, even though
various predecessor provisions contained ambiguous language similar to the
provision we interpret today. Mandatory detention was first introduced in the

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Anti-Drug Abuse Act of 1988, 

 Stat. 4181 (“ADAA”).
See ADAA § 7343, 102 Stat. at 4470. The ADAA added former section
242(a)(2) of the Act, 

(a)(2) (Supp. I 1989), which provided as
follows:
  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), the Attorney General shall not release such felon from custody.
  (Emphasis added.)

   The second sentence of this statute mandated the detention of any “such
felon,” which could readily be understood as “any alien convicted of an
aggravated felony.” Nevertheless, the “upon completion” clause of this original
provision raises uncertainty as to the scope of its coverage that is comparable
to the uncertainty raised by the “when released” clause in the present statute.
Similar uncertainty exists in amendments made by section 440(c) of the
Antiterrorism and Effective Death Penalty Act of 1996, 

 Stat. 1214, 1277 (“AEDPA”), further amended by section 306(d) of the
IIRIRA, 110 Stat. at 3009-612, as well as in section 303(b)(3) of the IIRIRA,
110 Stat. at 3009-586, which gave us the TPCR. These statutory changes are not
of substantial guidance.
   However, former section 242(a)(2) was amended, in a manner that we find
instructive , by section 504 of the Immigration Act of 1990, 

 Stat. 4978, 5049 (“1990 Act”), and by section 306(a)(4) of the
Miscellaneous and Technical Immigration and Naturalization Amendments of
1991, 

 Stat. 1733, 1751 (effective as if included in the
1990 Act). Section 242(a)(2) of the Act, as amended by these 1990 and 1991
enactments, provided as follows:
  (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 may not release from custody any lawfully admitted alien who
  has been convicted of an aggravated felony, either before or after a determination of
  deportability, unless the alien demonstrates to the satisfaction of the Attorney General that
  such alien is not a threat to the community and that the alien is likely to appear before any
  scheduled hearings.

   We find this version of the statute to be particularly instructive. This version
separates the provision requiring the Attorney General to assume the custody
of aliens coming out of criminal incarceration from the provision governing the
release of criminal aliens. Subparagraph (A) includes the “upon release of the

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alien” language that is comparable to the “when released” clause of the current
statute. It requires the Attorney General to assume custody of criminal aliens
at the time of their release from criminal custody.
   Subparagraph (B), however, specifies that the Attorney General may not
release “any lawfully admitted alien who has been convicted of an aggravated
felony” unless certain conditions are met. Importantly, those conditions
extended to all aliens convicted of aggravated felonies, regardless of whether
the aliens actually came into Service custody “upon release” from criminal
incarceration. In other words, the groups of criminal aliens subject to
mandatory detention were not affected by the timing of their release from
criminal custody or the timing of the Service’s acquisition of custody. Under
this provision, all aliens convicted of aggravated felonies who had not been
lawfully admitted were subject to mandatory detention.
   In sum, the statute has contained different phrases over the years, from “upon
completion of the alien’s sentence” to “upon release of the alien” to “when the
alien is released.” Some of the statutory versions contain the ambiguity we face
now. But the version stemming from the 1990 and 1991 amendments does not.
That version is strong evidence that Congress was not attempting to restrict
mandatory detention to criminal aliens taken immediately into Service custody
at the time of their release from a state or federal correctional institution.
                        D. Practical Considerations
   In Matter of Noble, supra, at 681-82, we identified a variety of practical
considerations affecting the statutory analysis, some of which apply to this case
as well. We see no need to repeat that discussion here. Id. at 679-82. We
merely observe that these practical concerns reinforce the reading that emerges
from the structure of the statute as a whole and from the history of the
mandatory detention provision itself.
   There are, however, additional analytical problems arising from the
respondent’s interpretation of the “when released” clause. For example, it is not
clear where the line would be drawn under his reading of the statute. Would
mandatory detention apply only if an alien were literally taken into custody
“immediately” upon release, or would there be a greater window of perhaps
1 minute, 1 hour, or 1 day?
   Such questions are not relevant to any other aspect of removal proceedings.
 It would therefore be inconsistent with our understanding of the statutory
design to construe section 236(c) of the Act in a way that permits the release
of some criminal aliens, yet mandates the detention of others convicted of the
same crimes, based on whether there is a delay between their release from
criminal custody and their apprehension by the Service.




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                                      E. Summary
   We construe the phrasing “an alien described in paragraph (1),” as including
only those aliens described in subparagraphs (A) through (D) of section
236(c)(1) of the Act, and as not including the “when released” clause. Our
interpretation is derived from the natural meaning of the statutory language,
from the object and design of the statute as a whole, and from the history of the
mandatory detention provisions. It is reinforced by practical concerns that
would otherwise arise.

        VII. JUDICIAL RESPONSE TO MATTER OF NOBLE
   The federal district courts appear to be divided on our interpretation of the
TPCR in Matter of Noble, supra. Our analysis has been rejected by several
district courts that have followed the lead taken in Pastor-Camarena v. Smith,

 (W.D. Wash. 1997). See, e.g., Alikhani v. Fasano,

 (S.D. Cal. 1999); Aguilar v. Lewis, 

(E.D. Va. 1999); Alwaday v. Beebe, 

 (D. Or. 1999); Rivera
v. Demore, No. C 99-3042 TEH, 

 (N.D. Cal. July 13, 1999);
Grodzki v. Reno, 

 (N.D. Ga. 1996); see also Grant v. Zemski,

 (E.D. Pa. 1999); Velasquez v. Reno, 

(D.N.J. 1999). The respondent relies heavily on the reasoning of Pastor-Camarena v. Smith and on other district court decisions that have followed its
approach.
   We do not agree with the Pastor-Camarena court’s reasoning. The
petitioner in that case had argued that immigration law historically distinguished
between persons taken into custody from the community at large and those taken
into custody directly upon release from the criminal justice system. In rejecting
Noble’s reading of the statute, the court appeared to accept the petitioner’s
“historical” argument by pointing to the “upon release” clause in former section
242(a)(2) of the Act, as amended by section 440(c) of the AEDPA. 1 The court
found that the plain meaning of the phrase “upon release of the alien from



1
  Former section 242(a)(2), as amended by section 440(c) of the AEDPA and by section
306(d) of the IIRIRA, provided as follows:
   The Attorney General shall take into custody any alien convicted of any criminal offense
   covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section
   241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their
   commission, otherwise covered by section 241(a)(2)(A)(i), upon release of the alien
   from incarceration, shall deport the alien as expeditiously as possible. Notwithstanding
   paragraph (1) or subsections (c) and (d), the Attorney General shall not release such
   felon from custody. (Emphasis added.)

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incarceration” is that it applies only to aliens “immediately after release from
incarceration, not to aliens released many years earlier.” Pastor-Camarena v.
Smith, supra, at 1417.
   The court in Pastor-Camarena accepted an incorrect “historical” argument.
Our earlier discussion of former section 242(a)(2) of the Act, after the 1990
and 1991 amendments, demonstrates that the statute was focused on the
detention of certain aliens convicted of aggravated felonies and not on the
timing of when they came into Service custody. Moreover, the structure of
former section 242(a)(2), as amended by the AEDPA, is largely the same as it
was after the 1990 and 1991 amendments. The principal difference, for our
purposes, is that section 440(c) of the AEDPA eliminated subparagraph (B),
which had authorized bond for aliens convicted of aggravated felonies if those
aliens had been lawfully admitted. It is the second sentence of former section
242(a)(2), as amended by the AEDPA, that contains the mandatory detention
requirement, and it applies to “such felon.”
   We read “such felon” as describing those aliens convicted of the covered
criminal offenses, just as it had similarly described an “alien convicted of an
aggravated felony” in the version of the statute preceding the AEDPA
amendments. We do not read the term “such felon” as also including the “upon
release” clause. Rather, as set forth in Matter of Noble, supra, we read the
“upon release” clause as a direction pertaining to when the duty arises to take the
alien into custody. Indeed, the structure of the statute after the 1990 and 1991
amendments clarifies that “such felon” is a reference to an alien “convicted of
an aggravated felony” and, importantly, that it is not also a reference to the
“upon release” clause. The analysis in Pastor-Camarena and the decisions that
follow a similar approach do not, therefore, lead us to reject the interpretation
that we otherwise find appropriate in view of the statute as a whole.
   Moreover, other courts have upheld the analysis set forth in Matter of Noble.
See Saucedo-Tellez v. Perryman, 

 (N.D. Ill. 1999) (deferring
to Noble and concluding that the mandatory detention provision in section
236(c) of the Act includes aliens released from criminal custody after the TPCR
expired who are later detained by the Service); see also Okeke v. Pasquarell,

 (W.D. Tex. 2000) (agreeing with Noble that “when the alien
is released” specifies the time at which the duty to detain a criminal alien
arises).
   As noted by the dissent, some district courts have found mandatory detention
to be unconstitutional. However, even the dissent’s construction of the statute
would not eliminate the constitutional concerns raised in those decisions.
Rather, the dissent’s approach would merely reduce the number of aliens who
are subject to mandatory detention. The dissent also relies on a line of district
court cases that conclude that section 236(c) of the Act and its predecessors do
not apply retroactively to aliens released from criminal custody prior to the date
of enactment of the relevant mandatory detention provisions. We are not,

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however, applying section 236(c) to aliens who were released from criminal
custody prior to the date on which the provision went into effect. We have
previously determined that such aliens are beyond the reach of section 236(c).
See Matter of Adeniji, supra (holding that section 236(c) of the Act does not
apply to aliens released from criminal custody prior to the expiration of the
TPCR on October 8, 1998).

                            VIII. CONCLUSION
   We find that the respondent is subject to mandatory detention pursuant to
section 236(c) of the Act, despite the fact that he was not taken into Service
custody immediately upon his release from state custody. The regulations do
not give Immigration Judges bond jurisdiction over aliens who are properly
subject to mandatory detention. See 

(h)(2)(i)(D). Accordingly,
the Immigration Judge properly determined that he did not have jurisdiction to
redetermine the custody conditions imposed by the Service in this case. See
Matter of Adeniji, supra. The respondent’s appeal will be dismissed.
   ORDER: The appeal is dismissed.

CONCURRING AND DISSENTING OPINION: Anthony C. Moscato,
Board Member, in which Gustavo D. Villageliu, Board Member, joined
   I respectfully concur in part and dissent in part.
   I concur in the result reached by the majority and find that the respondent is
subject to mandatory detention pursuant to section 236(c) of the Immigration
and Nationality Act, 

(c) (Supp. V 1999). However, I disagree
with the analysis used by the majority to reach that conclusion.
   In several recent decisions, this Board has considered the impact of what has
come to be called the “when released” clause. This clause was directly
considered in Matter of Noble, 

 (BIA 1997), tangentially
considered in Matter of Adeniji, Interim Decision 3417 (BIA 1999), and Matter
of West, Interim Decision 3438 (BIA 2000), and is once again considered
directly in the instant case. In all of those decisions, including both the majority
and dissenting opinions here, the Board has proceeded—virtually as a given—on
the premise that the “when released” clause modifies the verb phrase “shall take
into custody.” Section 236(c)(1) of the Act.
   As a result of that conclusion, we have been left with a difficult question:
does the “when released” clause, as it modifies the verb phrase “shall take into
custody,” require that the Attorney General (or his delegate, the Immigration
and Naturalization Service) be literally at the jailhouse door to take custody at
the instant of release in order to create an alien “described in paragraph (1)” for
purposes of mandatory detention, as set forth in section 236(c)(2) of the Act?

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   The dissent asserts that this is precisely the meaning and the required result.
The majority engages in a lengthy legal and historical analysis of predecessor
provisions to demonstrate, in the end, that the language of the Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991, 

 Stat. 1733, demonstrates that the “when released” clause, as it
modifies the words “shall take into custody,” does not require the taking of an
alien into custody at the instant of release.
   It is difficult to conclude that Congress meant to premise the success of its
mandatory detention scheme on the capacity of the Service to appear at the
jailhouse door to take custody of an alien at the precise moment of release. It
was, as the majority documents, primarily its frustration with the Service’s
inability to achieve the deportation of aliens not in detention that led Congress
to create this scheme in the first place. It therefore does not seem likely that
Congress would have based the success of its newly created scheme on a
requirement that the Service perform at a very high level of efficiency. Nor do
I believe that Congress did so.
   Proper statutory construction must begin with the words used by Congress.
INS v. Cardoza-Fonseca, 

 (1987). Where the language of the
statute is clear, the inquiry is ended. Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 

 (1984). The language
of this statute is clear.
   The text of section 236(c) of the Act is set forth below, divided into sections
by parentheses for ease of reference:
  DETENTION OF CRIMINAL ALIENS.—
    (1) CUSTODY.—
      1
        (The Attorney General shall take into custody)
       2
        (any alien who — (A) is inadmissible by reason of having committed any
       offense covered in section 212(a)(2)[1182], (B) is deportable by reason of
       having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii),
       (B), (C), or (D) [1227], (C) is deportable under section 237(a)(2)(A)(i) on
       the basis of an offense for which the alien has been sentence[d] to a term
       of imprisonment of at least 1 year, or (D) is inadmissible under section
       212(a)(3)(B) or deportable under section 237(a)(4)(B),)
       3
           (when the alien is released),
       4
        (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.)

  In general, English usage seeks to place the modifier as close to the object
being modified as possible. To achieve the conclusion reached by the majority
and the dissent, section 3 above must leap over the lengthy section 2, which


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defines the categories of aliens subject to mandatory detention, in order to
modify section 1. This is possible, but less than likely.
  It is more likely that Congress meant to do something simpler and clearer,
namely, to make section 3 modify the section immediately preceding and
abutting it, section 2. Read in this fashion, we find the following:
  (1) If, when the alien is released (section 3), he or she falls into one of the four
  categories, (A)-(D) (section 2), the Attorney General shall take the alien into custody
  (section 1). That’s it. Under this reading, it doesn’t matter when the Service takes an
  alien into custody—at the time of release, the next day, 2 months later, or 5 years later.

  (2) The “when released” clause thus serves two clear purposes in defining an alien who
  is subject to mandatory detention: a) it requires that the alien fall into one of the four
  defined categories when he or she is released; and b) it limits the definition of an alien
  subject to mandatory detention to one who has been “released.” Thus, the Attorney
  General may not assume custody until the state has “released” the alien from
  incarceration.
  (3) Finally, the remainder of the statute, encompassed by section 4, modifies the last
  word of section 3, “released,” and asserts that the form of release is irrelevant. In
  essence, while the definition of an alien subject to mandatory detention does not
  include one who is incarcerated (see paragraph 2, above), it does include an alien who
  has been released from incarceration but is still subject to the other, lesser controls of
  federal or state criminal correctional systems.

   If we adopt this reading, which comports more closely with preferred English
usage, each word and clause in the section has its natural meaning, and each
works together to create a clear and harmonious whole—a whole that supports
the overall statutory intent to place aliens who fall into certain categories into
mandatory detention. In addition, we are rid of the difficult issue regarding the
temporal reach of the “when released” language; it simply disappears if the
“when released” clause does not modify the verb phrase.
   Finally, it has been suggested that there are serious due process concerns
regarding both mandatory detention, in general, and the broad scheme of
mandatory detention set forth here, in particular. See Matter of Rojas, 

 (BIA 2001) (Rosenberg, dissenting). That may well be true.
Mandatory detention, especially when it is imposed within the immigration
law—a system that is clearly civil in nature—must always be the subject of
concern and, where appropriate, be subject to limited application. However, as
discussed above, Congress has spoken clearly on this matter. This statute can
fairly be read, according to the plain meaning of the words and usages employed,
to require mandatory detention, without any requirement that the Service take
an alien into custody at the moment of release.


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  In light of that clarity, and the extraordinary deference paid by the United
States Supreme Court to the plenary authority of Congress in the area of
immigration, it is beyond the authority of this Board to consider the due process
concerns generated by mandatory detention.

DISSENTING OPINION: Lory Diana Rosenberg, Board Member, in
which Paul W. Schmidt, John Guendelsberger, Neil P. Miller, Noel A.
Brennan, Cecelia M. Espenoza, and Juan P. Osuna, Board Members,
joined
   I respectfully dissent.
   The ultimate issue before us is whether the respondent can obtain a change
in immigration custody status or whether he must remain in immigration
detention during the entire time that removal proceedings are pending against
him. See section 236(c) of the Immigration and Nationality Act, 

(c) (Supp. V 1999). The resolution of that question depends on whether
the respondent is “an alien described in paragraph (1)” who is subject to
mandatory detention due to a criminal offense, despite the fact he was not taken
into custody by the Attorney General when he was released from criminal
incarceration. Section 236(c)(2) of the Act (emphasis added).
   The majority concludes that, under the statute, the respondent is ineligible for
a change in custody status because the phrase “when the alien is released [from
criminal incarceration]” should not have any bearing on our interpretation of
which aliens are affected by section 236(c) of the Act. I disagree.
   The resolution reached by the majority is based on a flawed construction of
section 236(c). Our interpretation of the statute must include consideration of
the phrase “when the alien is released” as an integral part of paragraph (1). That
phrase is part of the statutory description identifying the aliens whom the
Attorney General must take into custody and may not release. We do not need
to resort to contortions concerning what “described in” means to obtain a
rational interpretation of the plain terms of this statute. I conclude that the
statutory language does not mandate that this respondent necessarily remain
detained, as he is not an alien described in paragraph (1) of section 236(c) of the
Act. Accordingly, I would remand this case to determine whether the
respondent’s continued detention is warranted.

           I. STATUTORY LIMITATION ON CHANGE IN
                IMMIGRATION CUSTODY STATUS
   The respondent is a lawful permanent resident who was convicted of
possession with intent to sell cocaine and sentenced to a period of criminal
incarceration. He is charged with being deportable under sections

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237(a)(2)(A) (iii) and (B)(i) of the Act, 

(a)(2)(A)(iii) and (B)(i)
(Supp. V 1999), and is subject to removal, but he has not been found removable.
When he was released from incarceration, he was not taken into custody by the
Immigration and Naturalization Service, but was returned to the community.
   As I indicated in my separate opinion in Matter of Adeniji, Interim Decision
3417 (BIA 1999) (Rosenberg, concurring and dissenting), the language used by
Congress in section 236(c) of the Act does not expressly mandate the detention
of every alien who has ever committed a criminal or terrorist offense. Id. at
27-28; see also Matter of Noble, 

 (BIA 1997)
(Rosenberg, concurring and dissenting) (addressing the effect of similar
language in the Transition Period Custody Rules (“TPCR”)). The legislative
mandate to detain is limited to those aliens who are taken into immigration
custody when released from criminal incarceration. 

   Detention on the basis that an alien is subject to certain removal charges
under the Act constitutes a deprivation of liberty. If such a restriction can be
required at all, it must be imposed only in strict compliance with the statutory
mandate, which must be regulatory and not punitive in purpose. See United
States v. Salerno, 

 (1987) (“[T]he punitive/regulatory
distinction turns on ‘“ whether an alternative purpose to which [the restriction]
may rationally be connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose assigned [to it].”’” (quoting
Schall v. Martin, 

 (1984) (quoting Kennedy v. Mendoza-Martinez, 

 (1963)))). Applying United States v. 

 section 236(c) will be upheld if the statute is regulatory in nature and not
excessive to its purpose. Welch v. Reno, 

 (D. Md.
2000) (citing United States v. 

).
   However, the fact that detention is not mandatory does not mean that an alien
cannot be held in immigration custody based on an individual examination of the
factors warranting such a deprivation. It is undisputed that we retain ample
authority to require detention based on case-by-case determinations, when
release from the custody of the Service is not warranted.
               A. Interpretation of the Statutory Language
   Section 236(c) of the Act has two paragraphs. The first paragraph requires
the Attorney General to take into custody any alien who is inadmissible or
deportable due to specified criminal or terrorist offenses “when the alien is
released, 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
(emphasis added). The second paragraph governs the restriction on the Attorney
General’s authority to consider an alien for release from immigration custody.


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With few exceptions not relevant here, that authority depends on whether the
alien is an alien described in paragraph (1). See section 236(c)(2) of the Act.
   There can be no real dispute over whether the specific language “when the
alien is released” is a part of the text of paragraph (1) of section 236(c).
Section 236(c)(1) of the Act (emphasis added). Likewise, there can be no
disagreement that “an alien described in paragraph (1)” is subject to
mandatory immigration custody and, with extremely limited exceptions, must
remain in such custody. Section 236(c)(2) of the Act. Therefore, we must
interpret whether the scope of the reference to “an alien described in” in
section 236(c)(2) includes consideration of “when the alien is released” in the
text of section 236(c)(1).
   This language is plain. In Matter of Noble, supra, the Board ruled that “[o]ur
reading comports with a ‘plain meaning’ statutory construction and is wholly
consistent with congressional intent.” Id. at 678; see also id. at 690
(Rosenberg, concurring and dissenting) (agreeing that the language is plain, but
challenging the majority’s interpretation of the language in the TPCR and in
section 236(c) of the Act). As I have asserted consistently, the context in which
this “when released” language appeared in the TPCR, as well as the context in
which it appears in the present statute, supports reading these words as referring
to the time of an alien’s release from criminal incarceration. Id. at 695-96; see
also K Mart Corp. v. Cartier, Inc., 

 (1988).
   The entirety of paragraph (1) is a directive from Congress to the Attorney
General. The principal sentence of the section reads, “The Attorney General
shall take into custody,” and then proceeds to describe those aliens who shall
be taken into custody. Section 236(c)(1) of the Act (emphasis added). A
straightforward reading of this section reflects that paragraph (1) is a mandate.
The text following the principal clause refers to the aliens whom the Attorney
General shall take into custody when they are released from criminal
incarceration. In other words, the paragraph describes which inadmissible or
deportable aliens are to be taken into custody by the Attorney General when
such aliens are released from criminal incarceration. See section 236(c)(1) of
the Act.
   The word “‘when’ [is defined] as ‘just after the moment that.’” Alikhani v.
Fasano, 

 (S.D. Cal. 1999) (quoting Webster's Third
New International Dictionary 2602 (3d ed. 1976)). Therefore, as one court
noted, the clear language of the statute requires that “the mandatory detention
of aliens ‘when’ they are released requires that they be detained at the time of
release.” Alikhani v. 

; see also Velasquez v. Reno,

 (D.N.J. 1999) (“This court cannot simply ignore the
plain language of the statute which provides that an alien is to be taken into
custody ‘when the alien is released.’”). As another court noted, “Congress could
have required custody ‘regardless of when the alien is released’ or ‘at any time
after the alien is released,’” but did not do so. Alwaday v. Beebe, 

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1130, 1133 (D. Or. 1999) (citing Pastor-Camarena v. Smith, 

 (W.D. Wash. 1997) (finding it “arbitrary and capricious . . . to
interpret the phrase [‘when the alien is released’] to include [persons] . . . who
were released from incarceration many years before coming into the custody
of the INS for deportation proceedings”)). Yet another court found that “[s]ince
Rivera was released from state criminal incarceration in April 1995, over three
years before he was taken into custody by the INS in May 1998, the prohibitions
on release of aliens taken into custody under section 236(c)(1) do not apply to
him.” Rivera v. Demore, No. C99-3042-TEH, 

, at *4 (N.D.
Cal. July 13, 1999). These courts have concluded uniformly that “[t]he plain
meaning of this language is that it applies immediately after release from
incarceration, not to aliens released many year[s] earlier.” Pastor-Camarena
v. Smith, supra, at 1417-18 (citing Grodzki v. Reno, 

(N.D. Ga. 1996); Montero v. Cobb, 

 (D. Mass. 1996)).
   Nevertheless, the majority proposes that there is a question as to whether the
“when . . . released” phrase in paragraph (1) should be given any effect at all in
interpreting the scope of the limitation on the Attorney General’s authority to
release some aliens from such custody under paragraph (2). See Matter of
Rojas, 

 (BIA 2001). The majority claims that in interpreting
the scope of the Attorney General’s authority to release certain aliens from
custody under paragraph (2) of section 236(c) of the Act, “we must determine
whether an ‘alien described in paragraph (1)’. . . additionally refers to an alien
who is taken into Service custody ‘when the alien is released.’” 

(emphasis added).
   The term “described in” is not a novel reference. Most recently, in Matter
of Vasquez-Muniz, Interim Decision 3440 (BIA 2000), we construed the use
of the phrase “described in” in the aggravated felony definition to refer to
another federal statute. We found it to be defined in common usage as “[t]o
represent by words written or spoken; . . . to state in detail the particulars of.”

 at 7 (quoting Webster’s New International Dictionary 706 (2d ed. 1959)).
We found that “[e]ach usage of the phrase ‘described in’ . . . clearly refers to
something specifically set forth elsewhere in the statute or regulation.” Id. at
8 (emphasis added). Paragraph (1) of section 236(c) specifically sets forth the
description of aliens who are subject to mandatory custody when they are
released from criminal incarceration.
   The majority’s characterization of the issue strains credulity. The statute
does not present the language “when the alien is released” as some adjunct to the
statute, but as a component part. Nevertheless, the majority contends that there
is a question whether the phrase “‘when the alien is released’ is a necessary part
of the description of the alien in paragraph (1).” Matter of Rojas, supra, at 119
(emphasis added). Pared down to its basics, the majority opinion holds that
“‘when the alien is released’ is [not] a necessary part of the description of the
alien in paragraph (1).” Id. (emphasis added).

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   It is not our role to determine whether particular language used by Congress
is “necessary.” It is our role to implement the statute Congress enacted
according to the intent of Congress that is expressed by the language Congress
used. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

 (1984). Indeed, we have previously acknowledged that “it is
assumed that the legislative purpose is expressed by the ordinary meaning of the
words . . . [and] [t]he language of the statute must ordinarily be regarded as
conclusive . . . .” Matter of Noble, supra, at 677 (citing INS v. Cardoza-Fonseca, 

 (1987)); see also Matter of M/V Signeborg,

 (BIA 1960) (holding that “the language of the law cannot be
enlarged beyond the ordinary meaning of its terms”).
   “An alien described in paragraph (1)” is an alien who comes within the
language used by Congress in paragraph (1), i.e., an alien who is inadmissible or
deportable under a section of the Act and who is taken into custody upon release
from incarceration. This paragraph describes the particular aliens whom the
Attorney General is bound to detain. Language should not be construed in a way
that renders a term surplusage. United States v. Menasche, 

(1955). It is simply splitting hairs to assert, as the majority does, that the
portion of the paragraph referring to when the designated inadmissible and
deportable aliens are to be taken into custody is not part of the description of
which aliens are to be detained without possibility of release.1
   Where Congress’ intent is clearly expressed in the language it uses, it must
be given effect. Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., supra, at 842-43. Yet the majority resorts to the same argument it
asserted in Matter of Noble, supra, contending here that “[t]he ‘when released’
clause is no more a part of the description of an alien who is subject to
detention than are the other concluding clauses . . . [which] address themselves
to the statutory command that the ‘Attorney General shall take into custody’
certain categories of aliens, rather than to the description of those categories.”
Matter of Rojas, supra, at 121; cf. Matter of Noble, supra, at 680. Not



1
   Likewise, the phrase “when the alien is released” is not merely a temporal signpost
indicating that for the Attorney General to hold an alien in mandatory custody, the alien must
have been subject to removal on one or more of the referenced grounds at the particular time
he or she actually was released from criminal incarceration. If an alien is not inadmissible
or deportable on one of those grounds at the time he or she is released from criminal
incarceration, the Service rarely would have jurisdiction to take him or her into custody and
charge him or her with being subject to removal. Therefore, it goes without saying that
inadmissibility or deportability must at least be colorable at the time the alien is released from
criminal incarceration. To limit the reading of the statute in any other way would simply be
redundant.

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surprisingly, the majority fails to provide any reason why characterizing the
language as a directive makes it any less a description, particularly when that
description is communicated as part of a mandate to the Attorney General.
    As I have demonstrated, all of paragraph (1) is a directive to the Attorney
General to take the described aliens into custody. Paragraph (2) refers to all of
these aliens. We have emphasized that in the absence of “clearly expressed
legislative intention . . . any inferences . . . are insufficient to override the literal
language of the statute . . . . [W]e are not at liberty to rewrite the literal language
. . . and any changes to the express language must be left to Congress.” Matter
of Noble, supra, at 685-86. The majority ignores its own words in concluding
that the “when . . . released” phrase is not necessary to the reading of paragraph
(1) and is not part of a description of the aliens whom the Attorney General
must detain.

                       B. Prior Federal Court Decisions
    The majority of the federal district courts that have considered the language
at issue under one or another of the statutory enactments invoking such language
have not adopted the interpretation advocated by the majority. Although some
courts have concluded that mandatory detention is permissible, none has
expressly agreed that “when the alien is released” is not necessary to an
interpretation of the statute and is not a part of the description of which aliens
are to be held in custody upon their release from incarceration.
    The majority addresses the federal district court’s decision in Pastor-Camarena v. Smith, supra, as though it were the only federal court decision to
contain a significant analysis in opposition to that adopted here by the majority.
However, prior to 1997, numerous courts held that the language “upon release
of the alien from incarceration” meant that the statute did not apply to aliens
who were both convicted and released from incarceration before the statute was
enacted. See, e.g., Montero v. 

 (finding that the petitioner
was entitled to a bond hearing, in part because section 440(c) of the
Antiterrorism and Effective Death Penalty Act of 1996, 

 Stat. 1214, 1277 (“AEDPA”), did not apply to aliens convicted and released
prior to its enactment); Grodzki v. Reno, supra, at 342-43 (finding that the
“upon release” language at least implies that Service custody must commence
within a reasonable time after release from incarceration and the statute
therefore did not apply to the petitioner, who had been released from
incarceration 8 years earlier); DeMelo v. Cobb, 

 (D. Mass.
1996) (holding that AEDPA § 440(c) could not, by its language, apply to aliens
who were convicted and released before the statute was enacted), vacated, 

 (1st Cir. 1997) (question mooted by passage of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C of

 Stat. 3009-546 (“IIRIRA”)); Villagomez v. Smith, No.

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C96-1141C, 

, at *6 (W.D. Wash. July 31, 1996) (holding that
the language of AEDPA § 440(c) supported the conclusion that it did not apply
to aliens convicted and released prior to its enactment).
    As these decisions indicate, in enacting section 236(c) of the Act, Congress
should have been aware that the “upon release” language of section 440(c) of the
AEDPA was consistently being interpreted as limiting the applicability of the
provision to aliens convicted and released after its enactment. “It is axiomatic
that ‘identical words used in different parts of the same act are intended to have
the same meaning.’” Sale v. Haitian Centers Council, Inc., 

, 203
n.12 (1993) (quoting Atlantic Cleaners & Dyers, Inc. v. United States, 

 (1932)). If Congress had intended to make the statute applicable
to aliens regardless of when they were released or when they were taken into
custody by the Service, it could easily have included language to that effect. See
McCarthy v. Bronson, 

 (1991) (presuming that Congress was
familiar with judicial opinions interpreting particular language relating to the
subject matter when it again selected and enacted such language); see also
Velasquez v. Reno, supra, at 671; Matter of Adeniji, supra, at 28 (Rosenberg,
concurring and dissenting) (“We have every reason to presume that Congress
intended the same term, ‘released,’ to be understood similarly in each provision
. . . .”).
    Each of the federal district court rulings addressing whether section 236(c)
of the Act applies to persons released from criminal incarceration prior to
October 9, 1998, struck down the interpretation of the term “released” that was
suggested by our decision in Matter of Noble, supra. See, e.g., Grant v.
Zemski, 

 (E.D. Pa. 1999); Aguilar v. Lewis, 

 (E.D. Va. 1999); Alwaday v. 

 Velasquez v. Reno, supra;
Miranda-Arteaga v. Reno, CV-99-0949 (M.D. Pa. July 1, 1999); Abdel-Fattah
v. Reno, Civ. No. 99-947 (M.D. Pa. June 28, 1999); Alvarado-Ochoa v. Reno,
99-0470-IEG (AJB) (S.D. Cal. May 28, 1999); Baltazar v. Fasano, No.
99-CV-380 BTM (S.D. Cal. Mar. 25, 1999); Reyes-Rodriguez v. Fasano,
99-CV-0023 (S.D. Cal. Feb. 26, 1999); Alves-Curras v. Fasano, 98-CV-2295
(S.D. Cal. Feb. 22, 1999). These cases all hold that the plain language
“released,” in both section 236(c) of the Act and section 303(b)(2) of the
IIRIRA, 110 Stat. at 3009-586, applies only to aliens who are released from
criminal incarceration on October 9, 1998, or a later date.
    In addition, virtually every federal district court that has addressed the statute
following the expiration of the transition rules has ruled that section 236(c) of
the Act applies only to aliens “released” into immigration custody on October 9,
1998, or later. See, e.g., Alikhani v. 

 (recognizing that
section 236(c) “provides that the Attorney General shall take an alien who has
committed certain specified crimes into custody ‘when the alien is released’”).
“Given the plain language of the statute, . . . § 1226(c) does not apply to aliens
released from prison prior to the effective date of the statute.” Id. (citing

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Velasquez v. Reno, supra; Alwaday v. 

 cf. Parra v. Perryman,

 (7th Cir. 1999). As the court in Rivera v. Demore, supra, noted,
“By its terms section 236(c) gives the INS a strong incentive to detain criminal
aliens immediately after their release from criminal custody: if taken into INS
custody immediately, the mandatory detention rules apply, precluding the risk
of flight arising from release on bond and avoiding altogether the administrative
burden and expense of bond hearings. ” Id. at *4.
   In short, the vast majority of federal district courts have universally rejected
the majority’s reading of the “release” language of the TPCR, which was first set
forth in Matter of Noble, supra. What is more, the majority’s reading has been
found to be a “deviation from the plain language of section 303(b)(3)(A).”
Rivera v. Demore, supra, at *5 (“This curious interpretation is then bolstered
in the [Noble] opinion by a rehearsal of IIRIRA’s compelling purpose of
providing an expedited mechanism for removing the ‘growing criminal
immigrant population in this country,’. . . and disbelief that Congress meant to
narrow the class of criminal aliens subject to mandatory detention to those taken
into custody when released from criminal incarceration.”) (citations omitted).
                          C. Prior Board Decisions
   Moreover, we do not approach the question of the scope of mandatory
detention under section 236(c) of the Act in a vacuum. We previously have
construed the statute in relation to an alien’s release from criminal incarceration
in two cases after our decision in Matter of Noble, supra. In Matter of Adeniji,
supra, we held that section 236(c) requires mandatory detention of a criminal
alien only if he or she is released from criminal custody after October 8, 1998,
the last day that the TPCR were in effect. See IIRIRA § 303(b)(2) (providing
that section 236(c) of the Act “shall apply to individuals released after [the
expiration of the TPCR on October 9, 1998]”). To reach this result, we were
forced to consider when the alien was released from criminal incarceration.
When the alien was released from criminal incarceration played a significant
part in our determination whether section 236(c) applied.
   In addition, in Matter of West, Interim Decision 3438 (BIA 2000), we ruled
that the mandatory custody rules did not apply to an alien who had been released
from actual criminal incarceration in 1997, prior to the expiration of the TPCR,
and who had only been subject to probation after that time. To reach that
conclusion we had to construe the “released after” language in the TPCR to
include aliens who might otherwise be subject to mandatory detention, but who
were released before October 8, 1998. Therefore, we again considered when
an alien was released from criminal incarceration in determining whether the
mandatory detention provisions of section 236(c) applied.
   In each of these cases, we addressed the applicability of mandatory custody
provisions not merely by looking to the violations of the Act described in

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section 236(c)(1) of the Act, but by reviewing the entirety of subsection (c) to
determine which aliens were subject to mandatory custody and ineligible to be
considered for release. Although the specific question before us is limited to
the scope of section 236(c)(2), our prior interpretations clearly recognized that
the factor of when an alien is released is an integral part of the mandatory
custody directive in the statute. There is no basis to bifurcate the paragraph so
that “when the alien is released” is somehow severed from the entirety of the
paragraph, for purposes of determining which aliens the Attorney General may
not release from immigration custody.

            II. STATUTORY LIMITATION IN LIGHT OF
               CONSTITUTIONAL CONSIDERATIONS
   As I noted in my dissenting opinion in Matter of Valdez, 

(BIA 1997), the canons of statutory construction militate in favor of a
restrictive interpretation of a statutory provision “‘if a broader meaning would
generate constitutional doubts.’” 

 (Rosenberg, dissenting) (quoting
United States v. Witkovich , 

 (1957)); see also Lyng v.
Northwest Indian Cemetery Protective Ass’n, 

 (1988).
The interpretation advocated by the majority raises serious constitutional doubts
concerning the statute as applied to the respondent.
   The Board does not have jurisdiction to address constitutional issues.
However, we certainly may take note of constitutional issues in construing
statutory provisions. The encroachment on the liberty interests of an alien
deemed to be subject to mandatory detention raises questions of constitutional
magnitude. See Cabreja-Rojas v. Reno, 

 (S.D.N.Y.
1998); St. John v. McElroy, 

 (S.D.N.Y. 1996) (finding the
interest in freedom from confinement to be “of the highest constitutional
import”). A number of courts have held that section 236(c) of the Act, by
denying altogether the possibility of bail and release, violates substantive due
process, procedural due process, or both. See, e.g., Small v. Reno,

 (D. Conn. 2000); United States ex. rel. Radoncic v.
Zemski, 

 (E.D. Pa. 2000); Chukwuezi v. Reno, No. CIV. A.
3:CV-99-2020, 

 (M.D. Pa. May 16, 2000); Szeto v. Reno,
No. C 00-0531 CRB, 

 (N.D. Cal. May 5, 2000); Danh v.
Demore, 

 (N.D. Cal. 1999); Van Eeton v. Beebe,

 (D. Or. 1999); Martinez v. Greene, 

(D. Colo. 1998). But see, e.g., Parra v. Perryman, 

 (7th Cir.
1999); Lezcano v. Reno, No. C 99-4894 MJJ, 

 (N.D. Cal.
Aug. 4, 2000).
   Most courts have concluded that, in light of the fundamental interest involved,
the highly deferential standard articulated in Reno v. Flores, 

(1993), is inappropriate here. See, e.g., Small v. Reno, supra, at 314. Rather,

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 (BIA 2001)                          Interim Decision #3451




the standard applicable to pretrial detention, articulated in United States v.

 should apply. See Welch v. Reno, supra, at 353-55 (citing Van
Eeton v. Beebe, supra, at 1189; Rogowski v. Reno, No. Civ. 3:99cv790 (PCD),

 (D. Conn. Oct. 28, 1999); Martinez v. 

); see also Grant v. Zemski, supra, at 442.
   Many of the decisions that have found constitutional issues to be present have
looked to circumstances in which an alien has not conceded deportability and
has not yet been ordered removed. “Thus, the possibility of release on bail in
this case is not postponing the inevitable.” See Szeto v. Reno, supra, at *4
(citing Bouayad v. Holmes, 

 (E.D. Pa. 1999) (“[W]here, as
here, a petitioner contests whether he is removable under 

, the
option of ending detention by departing this country does not cure any
constitutional infirmity in the mandatory detention provisions.”); see also Danh
v. 

 (distinguishing Parra v. Perryman, supra, on the
grounds that petitioners were vigorously challenging their deportability); Szeto
v. Reno, supra, at *4 (same; noting that Parra had conceded the charges).

                            III. CONCLUSION
   The stretch of interpretation required by the majority’s construction is not
supported by the plain language of the statute and is unreasonable. The aliens
described in paragraph (1) of section 236(c) of the Act are the ones who are
deemed to be inadmissible and deportable for the cited violations and taken into
custody when they are released from criminal incarceration. These are the
aliens described in paragraph (2) as the ones who may not be released.
   The interpretation I reach from a straightforward reading of the plain language
of the statute would allow for a hearing when an individual alien, such as this
respondent, has already been released into the community, and it would
authorize the detention of such individuals where warranted following an
individualized hearing. The alternative interpretation I offer is not only the
better one as a matter of statutory construction. It also avoids some of the
difficult constitutional questions raised by requiring mandatory prehearing
detention, without individualized determinations, of people who already have
been released into the community. Accordingly, I dissent.




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