EOIR Memo on Whether Mandatory Detention Apply to Aggravated Felon

U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE

MEMORANDUM OF LAW

ISSUE

Whether the mandatory detention provisions of IIRAIRA's "Transition Period Custody Rules" ("TPCR") apply to MM, an alien now defined as an "aggravated felon" due to a sole 1985 conviction for alien-smuggling, but who was released from criminal detainer over a decade before the TPCR's effective date of October 9, 1996.

BACKGROUND

Mr. M first entered the United States without inspection at the age of 17, sometime in 1979. On January 21, 1985, Mr. M, along with other family members and friends, were all apprehended while trying to enter the United States without inspection. On April 17, 1985, before the court of U.S. District Judge Harry Lee Hudspeth (in the U.S. District Court for Texas, Western District), Mr. M pled to one count of alien smuggling, in violation of 8 U.S.C. sec. 1324(a)(2). The District Court gave Mr. M a two-year suspended sentence on May 9, 1985. On May 31, 1985, Mr. M was deported to Mexico at El Paso, Texas. At that time, Mr. M soon re-entered the United States without inspection, so that he could return to support his wife and child. (Mr. Miramonte's wife has since become a lawful permanent resident, has applied for naturalization, and is awaiting her naturalization interview.)

Mr. M has since resided in the United States without incident. Mr. M applied (unsuccessfully) for the INA sec. 245A "amnesty" program. Further, he tried to legalize his status under the Family Unity Program. Mr. M's wife was granted amnesty under the 245A program, and is now a lawful permanent resident. At this time, she is currently awaiting an interview for her naturalization application. At a "turn-in" interview scheduled as a predicate for Mr. M's application for suspension of deportation, the INS took Mr. M into custody, and Mr. M is now detained at the WCC/INS Processing Facility ("Wackenhut"). Until INS took detention Mr. M, he had worked (with legal work authorization, pursuant to his "Amnesty" appeals) as a roofer, and is the primary source of support for his wife and his three U.S. citizen children.

With the passage of IIRAIRA, the definition of "aggravated felony" was expanded to include a conviction for alien-smuggling which carried a sentence of more than one year, regardless of any time served. The only exception would be for a first time offense where the transported persons were immediate (as opposed to extended) family members. IIRAIRA explicitly provided that the amended definition of "aggravated felony" applied regardless of whether the conviction was entered before, on, or after the date of its enactment. IIRAIRA sec. 321(b).

The IIRAIRA also implemented the Transition Period Custody Rules, (hereinafter, "TPCR"), which required the Attorney General to take into custody certain criminally-detained aliens convicted of an aggravated felony, pending their deportation proceedings. Unlike the amendments to the "aggravated felony" definition, however, Congress never provided for the retroactive application of the TPCR.

DISCUSSION

1. The plain language of the TPCR's "mandatory detention" provisions apply only to aliens released from criminal detention on or after October 9, 1996.

Under Appendix C to the IIRAIRA, the TPCR read as follows:

"During the period [in which the TPCR is in effect], the Attorney General shall take into custody any alien who has been convicted of an aggravated felony . . . 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."

(emphasis added).

The plain language of the phrase "when the alien is released" necessarily implies that the TPCR applies only to those aliens released from criminal custody on or after the date of the TPCR's enactment (October 9, 1996). A preceding sentence in IIRAIRA sec. 303(b)(2) reinforces this conclusion, by stating: "the provisions of such [newly-amended] 236(c) shall apply to individuals released after such periods." The very language of the statute, therefore, states that the TPCR apply only to those aliens released from criminal custody on or after the TPCR's effective dates.

As Mr. M was not released from criminal custody on or after October 9, 1996, he is not among the classes of aliens subject to the TPCR, and therefore not subject to its mandatory detention provisions.

2. The TPCR cannot be retroactively applied to Mr. M, because Congress has made clear its intent for future applicability of the TPCR, and because well-settled federal (and administrative) law precludes any retroactive application.

The well-established presumption against retroactive application of statutes applies in the absence of a clear manifestation of congressional intent to make a provision effective retroactively. See Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994). Congress did not clearly manifest any intention to have the TPCR apply to aliens released prior to the effective date of the TPCR, and the TPCR add an adverse consequence to actions already taken. Therefore, the Landgraf analysis requires that the TPCR may not be applied retroactively. (Incidentally, the Tenth Circuit has conformed several recent decisions to Landgraf's mandates. See, e.g., Green v. Nottingham, 90 F.3d 415, 419 (10th Cir. 1996); Million v. Frank, 47 F.3d 385 (10th Cir. 1995)).

Additional support for the TPCR's non-retroactivity is contained in recent caselaw concerning section 440(c) of AEDPA. Amending the INA upon its enactment in April, 1996, section 440(c) is indistinguishable from the TPCR's mandatory detention provisions. Specifically, AEDPA sec. 440(c) required the Attorney General to "take into custody any alien convicted of [an] . . . aggravated felony . . . upon release of the alien from incarceration...."

In response to AEDPA sec. 440(c), on May 7, 1996 the INS Office of the Deputy Commissioner issued a memorandum directing that aliens released from criminal custody before the enactment of the Antiterrorism Act should NOT be re-taken into custody notwithstanding sec. 440 of the Act. Nevertheless, certain INS districts subsequently applied AEDPA sec. 440(c) retroactively, holding without bond those who had been released from incarceration well before AEDPA's effective date. These actions were refuted and overturned by several U.S. district court decisions. The court interpretations of _identical_ statutory language must have a bearing on Mr. M's current situation.

For example, in DeMelo v. Cobb, 936 F. Supp. 30 (D. Mass. 1996), the court noted that nothing in AEDPA sec. 440(c) would support an interpretation that Congress manifested an intent to apply it to convictions prior to the effective date of the AEDPA. Further, even if the section could be read to apply to convictions prior to April 24, 1996 (AEDPA's effective date), the court held that 440(c) could NOT apply to aliens convicted or released before that date. Canons of statutory construction aside—the court further noted that the legislative history behind AEDPA's "mandatory detention" provisions specifically intended to limit the application of "mandatory detention" to those released from criminal custody after AEDPA's effective date. See DeMelo, supra, at 36 (emphasis added):

"The statements of Senator Abraham included his understanding that the Antiterrorism Act would 'require that aliens who are convicted of serious crimes in courts of law in this country be deported upon completion of their sentences....' 141 Cong. Rec. S7822 (daily ed., June 7, 1995) (emphasis added). Later, in that same statement, the Senator speaks of the current prison population and the percentage of current prisoners who are aliens. Nowhere in the legislative history cited by Respondents is there an indication that Congress manifested an intent that the Act apply to former prisoners who had already completed their sentences and had been released."

The court further pointed out that the Service's own interpretation of AEDPA's "mandatory detention" provisions should not be applied to aliens released from criminal detainer before AEDPA's effective date. See id. (emphasis added):

On May 7, 1996, the Office of the Deputy Commissioner of the INS issued a memorandum directing that aliens released before the enactment of the Antiterrorism Act should not be re-taken into custody notwithstanding sec. 440 of the Act. At oral argument, moreover, Respondents admitted that it would be infeasible for the INS to take into custody all currently free aliens who would be covered by the Act under Respondents' proposed interpretation.

All reported cases (and all unreported cases found by undersigned counsel) subsequent to DeMelo all follow its holding; to wit, they have held that AEDPA's "mandatory detention" provisions could NOT affect aliens whose release from criminal custody took place before AEDPA's effective date. See, e.g., In re Reyes, Case No. B-94-80, slip op. at 5 (S.D. Tex. May 31, 1996); Morales-Villagomez v. Smith, C96-1141C (W.D. Wash. July 31, 1996); Pena-Montero v. Cobb, 937 F. Supp. 88 (D. Mass. 1996) ("A thorough reading of both the case law and section 1252(a)(2), buoyed by the logic of Judge Keeton in DeMelo and guided by a similar conclusion reached in Villagomez, thus propels this Court to the following conclusion."); Grodzki v. Reno, Civ. No. 1:96-cv-2302-ODE, 1996 U.S. Dist. LEXIS 19790 (N.D. Ga. Sept. 20, 1996) ("The court does hold that the language 'upon release . . . from incarceration' at least implies that custody commence within a reasonable time after release from incarceration. By no stretch of the imagination does eight years after release from incarceration qualify as 'upon' release from incarceration.") (attached); United States v. Igbonwa, Crim. No. 90-375-1, 1996 U.S. Dist. LEXIS 17905, 1996 WL 694178 (E.D. Pa. Dec. 2, 1996) ("Congressional silence is not a manifestation of clear intent, and in the AEDPA Congress is silent about the effective date of this particular amendment.") (attached).

Further, there are four reported cases of immigration judges following the reasoning of DeMelo: Matter of Rodriguez-Banda, A74-219-422, OIJ/EOIR, Florence, Arizona (June 13, 1996); Matter of Lopez, A37-443-351 OIJ/EOIR, San Francisco, California, (June 24, 1996); Matter of Salinas, A24-942-076, OIJ/EOIR, San Francisco, California (July 31, 1996); Matter of Filamor, A21-622-437 OIJ/EOIR, San Francisco, California (May 1996).

It is important to note that IIRAIRA's TPCR have not been amended to supercede the holdings of any of these prior cases. The only possible inference to be drawn, therefore, is that Congress has agreed with the holdings reached by the above-cited cases, and intended the TPCR to apply only to aliens released from criminal custody after the TPCR's effective date.

CONCLUSION

The mandatory detention provisions of the IIRAIRA's TPCR cannot be applied retroactively to an alien released from an aggravated felony conviction before October 9, 1996. Both the plain language of the statute and the strong presumption against retroactivity of statutes recently affirmed by the U.S. Supreme Court in Landgraf support this conclusion. Moreover, all federal district courts having reviewed identical "mandatory detention" language (within the context of AEDPA sec. 440(c)) have held such language can not be applied to aliens released from criminal custody before the statute's effective date. Congress, though aware of such federal case law, made no changes to the "mandatory detention" language of IIRAIRA. Importantly, Congress did not amend the INA to state whether the TPCR should be retroactively applied to aliens released from criminal custody before the IIRAIRA's effective date. Such congressional acquiescence can only imply that Congress agrees with the court decisions interpreting the "mandatory detention" provisions to apply only to aliens released from criminal custody after October 9, 1996. Absolutely no federal or adminstrative case law can be found which reaches a different conclusion.

Insofar as Mr. M is eligible for release from bond, he respectfully requests that he be released on his own recognizance until his next hearing dates. Mr. M has committed no crimes whatsoever since 1985, and needs to support his wife (a lawful permanent resident) and his three children (all US citizens). Until the very day of his immigration arrest, Mr. M was employed as a roofer in the Denver area, and also plays in a music band on weekends. (Due to his INA sec. 245A Amnesty appeal—only recently terminated—Mr. M had been working under a lawfully-issued employment authorization card until only a few months ago.) There can be no serious claim that Mr. M poses any threat to the community whatsoever.

Further, it is clear Mr. M poses no flight risk whatsoever, insofar as he voluntarily surrendered himself to INS to have an "Order to Show Cause" issued, even after being informed that he would be arrested by INS. Mr. M is still eligible for suspension of deportation. Mr. M has resided in the US without incident or interruption since 1985. His newly-defined "aggravated felony" conviction cannot preclude a showing of "good moral character", insofar as his 1985 conviction entered well before the IMMACT90's effective date, which precluded good moral character findings for "aggravated felons". See Matter of A- A-, Int. Dec. 3176, 20 I&N Dec. 492, 497-99 (BIA 1992).

Further, Mr. M is not even deportable as an aggravated felon, insofar as his 1985 conviction predated the effective date of the 1988 INA amendment which established "aggravated felony" convictions as a deportation ground. Further, being married to a lawful permanent resident (who is currently awaiting an interview on her naturalization application), Mr. M is also eligible for an INA sec. 212(h) waiver pursuant to a family-based immigration petition. For these reasons, Mr. M respectfully requests that he be released from immigration custody on his own recognizance.

U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE
AURORA, COLORADO

SUPPLEMENTAL MEMORANDUM OF LAW

ISSUE

Whether the BIA's recent decision in In re Nobel, Int. Dec. 3301 (1997) undercuts the analysis provided in the previously submitted Memorandum of Law, and specifically, whether Nobel undercuts Mr. M's claim to eligibility for release from detention.

CONCLUSION

Mr. M's case does not come within the ambit of the Nobel holding, because the majority holding in Nobel applies ONLY to aliens deportable as aggravated felons. Mr. M is not deportable as an aggravated felon; therefore, the holding in Nobel does not apply to him. However, the federal case law cited in the previously filed Memorandum of Law is directly on point, and mandates his eligibility for release from detention.

DISCUSSION

I. Mr. M is not deportable as an aggravated felon, because his alien-smuggling conviction was entered in 1985, and aggravated felonies cannot be grounds for deportation where the aggravated felony conviction was entered before November 18, 1988.

Mr. M does not deny that he can now be defined as an alien convicted of an aggravated felony, as defined by INA sec. 101(a)(43), as amended by IIRAIRA sec. 321. The "effective date" paragraph of that section states: "Notwithstanding any other provisions of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph." However, the fact that Mr. M is now _defined_ as an aggravated felon does not, in and of itself, make him _deportable_ as an aggravated felon. This issue was squarely presented in Matter of A- A-, Int. Dec. 3176, 20 I&N Dec. 492, 497-99 (BIA 1992).

In Matter of A- A-, the Board noted that the 1988 Anti-Drug Abuse Act's amendment of INA sec. 241 included a deportation ground for aggravated felonies ONLY for those aggravated felony convictions entered after November 18, 1988:

"Congress explicitly stated that this deportation ground would only be prospectively applied to an alien 'convicted, on or after the date of the enactment of [the 1988] Act, of an aggravated felony.'"

Matter of A- A-, supra, at 497, citing Anti-Drug Abuse Act of 1988 sec. 7344(b), Pub. L. No. 100-690, 102 Stat. 4181, 4470-71 (enacted Nov. 18, 1988).

Matter of A- A- created a two-step process for determining whether an alien defined as an aggravated felon should be barred from relief, or denied any immigration benefits, as a result of being classified as an "aggravated felon." First, one must determine whether the crime is defined as an aggravated felony. If so, the second step is to determine whether the crime applies to a provision that attaches specific _immigration consequences_ or disabilities to people convicted of aggravated felonies. Matter of A- A-, supra, at 499:

"Thus, under the 1988 Act, a crime defined in section 7342 is an aggravated felony now matter when conviction occurs, although its immigration consequences will vary according to the effective dates of each of the disabling provisions."

The Board continued its two-part analysis in Matter of Reyes, Int. Dec. 3218, 20 I&N 789, 790 n.2 (BIA 1994). In Reyes, the Board noted that the aggravated felony bar to voluntary departure (the consequence to one convicted of an aggravated felony) only applied to aliens convicted of an aggravated felony on or after November 18, 1988. Accordingly, the Board pointed out that aliens convicted of aggravated felonies _before_ November 29, 1990, were still capable of establishing good moral character for immigration purposes. In doing so, the Board noted the explicit prospective language of IMMACT90 sec. 509(a), 104 Stat. at 5051—which prohibited aggravated felons from demonstrating good moral character—"was to take effect upon the date of enactment of the legislation, i.e., November 29, 1990, as was to apply prospectively to convictions occurring on or after that date." Reyes, supra, at 792.

Thus, the holding of Matter of A- A-, as reinforced by subsequent Board precedent, prevents INS from listing Mr. M's 1985 conviction as a ground of deportability. Further, Mr. M is still able to demonstrate good moral character—notwithstanding the fact that his conviction has now been defined as an aggravated felony—under Matter of Reyes.

In sum, while Mr. M may now be _defined_ as an aggravated felon under the IIRAIRA, he may not be _deported_ as an aggravated felon, because the IIRAIRA did _nothing_ to amend the listing of aggravated felony convictions as a deportability ground. (See INA sec. 237, as amended by the IIRAIRA.)

II. The holding of In re Nobel is limited to those aliens deportable as aggravated felons, and no others.

The majority opinion of In re Nobel took great care to limit the application of its holding. See Nobel, at 10 n.4 ("We do not purport to answer all questions that may arise under the transition rules. For example, we need not determine here whether the transition rules cover bond redeterminations of aliens who were freed from immigration custody before the transition rules took effect."). Given the Board's caveat, presented at the outset, this Court must address whether the issues presented in Nobel _even apply_ to the immediate case.

A comparison between Nobel and the instant facts reveals an obvious distinction: Nobel involved an alien deportable as an aggravated felon: the eponymous Mr. Nobel received his aggravated felony conviction on July 1, 1993. Not only was Mr. Nobel's aggravated felony conviction classifiable as an aggravated felony at the time it entered, but his aggravated felony conviction rendered Mr. Nobel deportable as an aggravated felon. (See discussion in Part I, supra.) Mr. M, however, received his conviction on April 17, 1985. Therefore, Mr. M's conviction was not classifiable as an aggravated felony at the time it entered (the conviction was transformed an aggravated felony—literally overnight—on September 30, 1996). Further, Mr. M is not even _deportable_ as an aggravated felon, because he received his conviction well before the establishment of aggravated felonies as a deportability ground.

1. In re Nobel's own language stated that its holding applied only to aliens _deportable_ as aggravated felons.

Not only did the Board present a caveat regarding the breadth of its holding, the Board inserted repeated references declaring that it was deciding issues relevant only to aliens deportable as aggravated felons. Nobel, at 9 (emphasis added):

"We first address the preliminary question of whether the transition rules govern the present custody determination of this respondent, who is deportable on aggravated felony grounds."

Not only did the Board limit the applicability of its holding at the outset, but it reiterated the narrow application of its holding at its conclusion. Nobel, at 16:

"In sum, we conclude that the Transition Period Custody Rules extend to at least those custody determinations of currently detained deportable aliens whose deportation grounds are covered by the transition of the statute, regardless of the particular alien's date of release from criminal incarceration or whether the alien was ever subject to criminal incarceration."

Thus, insofar as Mr. M's deportation grounds are not covered by the transition of the statute (because he is not deportable as an aggravated felon, see Part I, supra), the Board's conclusion does not, and cannot, apply to him.

The Board's framing of Nobel's "second" issue provides further evidence that its holding was meant to apply only to aliens deportable on aggravated felony grounds. Nobel, at 9. ("[Issue]2. If the Transitional Period Custody Rules apply, whether an alien deportable on aggravated felony grounds is barred from release under section 303(b)(3)(B) of the IIRAIRA."). Thus, Mr. M does _not_ fit within the conclusion of Nobel's majority opinion. Specifically, Mr. M's deportation grounds are not covered by the transition of the statute, because he is not deportable as an aggravated felon.

2. The majority in In re Nobel was concerned with avoiding "anomalous" or "incongruous" results; yet anomalous and incongruous results would result from subjecting the Respondent to "mandatory detention."

One of the considerations compelling the majority opinion in Nobel was to avoid "anomalous" or "incongruous" results. Nobel, 14-16. However, "anomalous" and "incongruous" results would result if the holding of Nobel were applied to Mr. M. How can it be that Mr. M is not deportable as an aggravated felon, is not precluded from demonstrating good moral character as a newly-defined aggravated felon, but could somehow be ineligible for bond? To state that the statute mandates such a conclusion begs the question, for the issue at hand is what—in fact—the Transition Period Custody Rules actually say.

The Nobel majority was clearly concerned that they not "construe the transition rules in a way that permits the release of a subgroup of criminal aliens (based on the wholly fortuitous date of release from incarceration) under a more lenient standard which does not mandate a threshold "threat to the community" determination." Nobel, at 15.

However, there is no conceivable context in which Mr. M would present a "threat to the community". His crime, alien-smuggling, was committed in 1985, and under circumstances which no one would describe as "threatening." Mr. M was not some professional _coyote_. Instead, Mr. M was apprehended while coming across the Mexico/US border with a number of family members and friends in his brother's truck. There is simply no circumstance under which Mr. M's sole criminal action could render him a threat to the community. Which, then, would be more "anomalous"?

3. Once it is determined that the majority opinion of In re Nobel does not apply to the immediate facts, the previously submitted Memorandum of Law mandates the Respondent's release from detention.

Though In re Nobel's majority opinion does not apply to the immediate case, the arguments (and case precedent) presented in Respondent's memorandum of law direct affect Mr. M's eligibility for release from detention. Nothing in the Nobel opinion attempts to correct, overrule, or supercede any of the federal opinions cited in the previously submitted Memorandum of Law. For example, it is notable that the Nobel majority sought to distinguish its interpretation of IIRAIRA's mandatory detention provisions from AEDPA's mandatory detention provisions, regardless of the fact that the two statutes contained identical language:

"Given our reading of section 303(b)(2) of the IIRAIRA, and our conclusion that the transition rules are in effect instead of 440(c) of the AEDPA, we need not reach the question of whether the AEDPA's section 440(c) covers only those aliens released from criminal incarceration after April 24, 1996, the effective date of the AEDPA."

Nobel, at 12 n.6 (emphasis added).

Understanding this point is crucial: _There is no conflict between the holding of Nobel and the precedent set by the federal cases cited in the previously submitted memorandum._ It is only a question of which cases apply to Mr. M's situation, and which do not. Insofar as Nobel dealt only with aliens deportable as aggravated felons, it is wholly irrelevant to the case at hand. The only law providing relevant analysis, then, stems from the federal cases previously submitted.

However, the previously-submitted federal case law deals specifically with aliens who were released from incarceration years before detention by immigration authorities. Under the analysis provided by the federal caselaw cited in the previously submitted Memorandum, Mr. M simply cannot be ineligible for release from detention. As one federal judge stated:

"The court does hold that the language 'upon release . . . from incarceration' at least implies that custody commence within a reasonable time after release from incarceration. _By no stretch of the imagination does eight years after release from incarceration qualify as 'upon release from incarceration.'_"

Grodzki v. Reno, Civ. No. 1:96-CV-2302-ODE, 1996 U.S. Dist. LEXIS 19790 (N.D. Ga. Sept. 20, 1996) (emphasis added).

For the above mentioned reasons, Mr. M respectfully requests that this Court declare him eligible for release from detention, and order him released upon his own recognizance.

Respectfully submitted,

Daniel C. Horne
Allott & Makar, PC
260 S-G Plaza, 2305 East Arapahoe Road
Littleton, CO 80122-1538
303-797-8055 >> tel
303-797-6136 >> fax