KOTLIAR

Cite as 

 (BIA 2007)                                  Interim Decision #3558




                    In re Roman KOTLIAR, Respondent
                            File A79 525 391 - Lancaster

                               Decided March 21, 2007
                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) An alien who has been apprehended at home while on probation for criminal convictions
   is subject to mandatory detention under section 236(c)(1) of the Immigration and
   Nationality Act, 

(c)(1) (2000), regardless of the reason for the most
   recent criminal custody, provided it can be ascertained from the facts that he was released
   from criminal custody after October 8, 1998, the expiration date of the Transition Period
   Custody Rules.

(2) An alien need not be charged with the ground that provides the basis for mandatory
   detention under section 236(c)(1) of the Act in order to be considered an alien who “is
   deportable” on that ground.
FOR RESPONDENT: Leon B. Hazany, Esquire, Beverly Hills, California
BEFORE: Board Panel: PAULEY and HESS, Board Members; ROMIG, Temporary
        Board Member.
PAULEY, Board Member:

   In a bond redetermination decision dated October 5, 2006, an Immigration
Judge denied the respondent’s request for a change in custody status,
concluding that there was no jurisdiction to set a bond. The respondent has
appealed from that decision. The appeal will be dismissed.
   In a November 14, 2006, memorandum decision, the Immigration Judge
considered the following facts, which are not in dispute. The respondent is
a 33-year-old native and citizen of Russia who last entered the United States
on or about April 6, 2001, as a nonimmigrant visitor with authorization to
remain until October 5, 2001. Following his failure to depart, he was charged
in a Notice to Appear (Form I-862) with having remained in the United States
for a time longer than permitted in violation of section 237(a)(1)(B) of the
Immigration and Nationality Act, 

(a)(1)(B) (2000). The
respondent admitted that he has been convicted of the following offenses in
violation of the California Penal Code: false identification to a police officer
on June 1, 2006; petty theft with a prior on November 5, 2005; burglary on
May 18, 2004; and cable TV theft on November 11, 2002.

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   The Immigration Judge concluded that the respondent is subject to
mandatory detention pursuant to Section 236(c)(1)(B) of the Act, 

(c)(1)(B) (2000), because of his multiple convictions for crimes
involving moral turpitude. The theft offenses of which the respondent was
convicted are clearly crimes involving moral turpitude, so there is no question
in that regard before us. United States v. Esparza-Ponce, 

 (9th
Cir. 1999); Matter of Alarcon, 

 (BIA 1992); Matter of
Adetiba, 

 (BIA 1992); see also Rashtabadi v. INS, 

 (9th Cir. 1994).
   The respondent makes two arguments on appeal. First, he contends that he
is not subject to mandatory detention because he did not serve a jail term and
was apprehended from his home while on probation, rather than when he was
released from criminal custody. However, section 236(c)(1) of the Act
expressly states that an alien is subject to mandatory detention and shall be
taken into custody when the alien is released, without regard to whether he
was released “on parole, supervised release, or probation.”1 Moreover, we
have held that an alien who is released from criminal custody (including from
an arrest preceding a conviction, as the respondent implicitly conceded took
place here) after the expiration of the Transition Period Custody Rules, which
occurred on October 8, 1998, is subject to mandatory detention pursuant to
section 236(c) of the Act, even if the alien is not immediately taken into
custody by immigration officials when released from incarceration. Matter of
Rojas, 

 (BIA 2001); Matter of West, 

 (BIA
2000). Although the Immigration Judge did not discuss when the respondent
came into custody, it is obvious from the record that he must have been
detained at some time after his conviction in 2002. Therefore, the record
reflects that the respondent was released from criminal custody after the
expiration of the Transition Period Custody Rules. Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.

1
    Section 236(c)(1) of the Act provides as follows:

       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),
             (C) is deportable under section 237(a)(2)(A)(i) on the basis of an offense for
         which the alien has been sentence 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.


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104-208, § 303(b)(3), 

-546, 3009-586. Consequently, the
respondent’s first argument must fail.
   In his second argument, the respondent asserts that because the Notice to
Appear did not charge that he is removable on the basis of his convictions, he
should not be subject to mandatory detention pursuant to section 236(c)(1)(B)
of the Act as one who “is deportable” under section 237(a)(2)(A)(ii) by reason
of having committed two crimes involving moral turpitude. We disagree.
Where the record reflects that an alien has committed any of the offenses
covered in sections 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of the Act, the
alien is subject to mandatory detention pursuant to section 236(c)(1)(B) as one
who “is deportable” for the offense, without regard to whether the Department
of Homeland Security (“DHS”) has exercised its prosecutorial discretion to
lodge a charge based on the offense.
   We have previously held that the “is deportable” language in the Transition
Period Custody Rules does not require that an alien be charged with and found
deportable on the ground that provides the basis for mandatory detention.
Matter of Melo, 

, 885 n.2 (BIA 1997) (noting that “bond
determinations . . . are normally rendered before any finding of
deportability”); see also Matter of Fortiz, 

, 1201 n.3 (BIA
1998) (distinguishing Matter of Melo in the context of establishing eligibility
for a waiver). For similar reasons, we now hold that the “is deportable”
language in the current mandatory custody statute does not require that the
alien be charged with or found deportable on the particular ground on which
detention is based.
   In Matter of Joseph, 

 (BIA 1999), we held that
subject to an automatic stay provision, a lawful permanent resident is not
considered “properly included” in a mandatory detention category when an
Immigration Judge or the Board finds, on the basis of the bond record as a
whole, that it is substantially unlikely that the Immigration and Naturalization
Service (now the DHS) will establish at the merits hearing, or on appeal, the
charge or charges of removability that would otherwise subject the alien to
mandatory detention under section 236(c)(1) of the Act. The alien in that case
was charged with being removable as an aggravated felon under section
237(a)(2)(A)(iii) of the Act, which would have rendered him subject to
mandatory detention under section 236(c)(1)(B). There was no other charge
of removability. We concluded that it was substantially unlikely that the
respondent’s offense would be viewed as an aggravated felony and therefore
that he was not “properly included” in a mandatory detention category. 

.
    The facts in this matter are distinguishable, in that the ground for removal
is unrelated to the convictions subjecting the respondent to mandatory
detention. In order to determine whether the respondent is properly included
in a mandatory custody category where there is no charge that he is removable


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on the basis of an offense enumerated in section 236(c)(1)(B), we look at the
record to determine whether it establishes that he has committed an offense
and whether the offense would give rise to a charge of removability included
in that provision. In this case, where the respondent admitted that he was
convicted of several crimes involving moral turpitude, we do not find that the
DHS is substantially unlikely to establish that the respondent’s convictions
would support a charge of removability under section 237(a)(2)(A)(ii) of the
Act. We therefore conclude that the Immigration Judge properly found him
to be subject to mandatory detention.
   Our conclusion is consistent with the congressional concern that criminal
aliens would continue to commit crimes and would fail to appear for removal
hearings if they were not detained, a concern that was noted by the United
States Supreme Court in Demore v. Kim, 

 (2003) (holding that
the detention of a lawful permanent resident during removal proceedings
pursuant to the mandatory detention provisions of the Act does not violate
constitutional due process rights). Not only is the mechanism of mandatory
detention required by the Act itself when the DHS has met its burden of
showing that an alien has been convicted of, or committed, one of the offenses
enumerated in section 236(c)(1) of the Act, but it is also a rational method of
ensuring that criminal aliens appear at their hearings and are prevented from
committing more crimes in the interim. The respondent is a repeat offender
who continues to violate both our immigration and criminal laws. His
detention will not only ensure his appearance at his removal proceedings, but
it will also prevent him from engaging in further criminal activity.
   Where the ground for removal subjects an alien to mandatory detention, the
charging document serves as notice to the alien of the circumstances relied on
by the DHS to detain him. However, where the basis for detention is not
included in the charging document, the alien must be given notice of the
circumstances or convictions that provide the basis for mandatory detention
and an opportunity to challenge the detention before the Immigration Judge
during the bond redetermination hearing. The Immigration Judge’s decision,
which found the respondent’s admissions to his convictions to be the basis for
mandatory detention, reflects that the respondent had notice and an
opportunity to be heard in this matter.
   On appeal, the respondent has presented additional evidence of
discretionary factors and a claim for relief from removal. In light of the
mandatory detention ruling, this evidence is not relevant to the bond
redetermination. Accordingly, the respondent’s appeal will be dismissed.
   ORDER: The appeal is dismissed.




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