Proposing a one-year time bar for 8 U.S.C. s. 1226(c).

• Author: Neumann, Jenna
• Position: NOTE

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires federal detention of certain deportable noncitizens when those noncitizens leave criminal custody. This section applies only to noncitizens with a criminal record ("criminal noncitizens"). Under section 1226(c), the Attorney General must detain for the entire course of his or her removal proceedings any noncitizen who has committed a qualifying offense "when the alien is released" from criminal custody. Courts construe this phrase in vastly different ways when determining whether a criminal noncitizen will be detained. The Board of Immigration Appeals (BIA) and the Fourth Circuit read "when the alien is released" to mean "any time after the alien is released," allowing the government to detain and deport criminal noncitizens years or decades after their release from criminal custody. A majority of district courts as well as the First Circuit, however, have interpreted the clause to mean "immediately upon the alien's release." Under this construction, immigration enforcement can detain a criminal noncitizen for deportation and detention only shortly after her release from criminal custody.

This Note argues that in light of recent legal and policy changes, the latter interpretation of section 1226(c) offers the correct understanding of the statute. It further contends that a universal one-year time bar should be implemented for detentions occurring under section 1226(c) to respect due process concerns.

TABLE OF CONTENTS INTRODUCTION I. INTERPRETING THE WORDS "WHEN AN ALIEN IS RELEASED" A. Statutory Context B. The BIA's Interpretation of the "When Released" Clause C. An Alternative Interpretation: Araujo-Cortes II. PROGRESSING TOWARD A MORE CONSERVATIVE DETENTION SYSTEM A. Under Chevron, Courts Are Not Bound by the BIA's Interpretation B. Recent Policy and Legal Changes Reinforce the Araujo-Cortes Conclusion 1. The Demise of the Secure Communities Program and the Rise of the Priority Enforcement Program 2. Constitutional Challenges and the Nonobligatory Nature of Mandatory Detention 3. The Lack of Legislative History of Section 1226(c) III. PROPOSING A ONE-YEAR TIME BAR A. One-Year Time Bar for Mandatory Detention B. Costs for the Social Contract CONCLUSION INTRODUCTION

Maria came to the United States in 1995 and married a United States citizen in 1998, claiming lawful permanent resident status the following year. (1) Her husband abused her later in their marriage, but when she tried to seek help in 2001, her husband told the police Maria had threatened him with a butcher knife. (2) The police arrested Maria and charged her with felony assault. (3) On the advice of her defense attorney, Maria pled guilty to the charge in exchange for eighteen months of probation and one year in the county jail, which was to be suspended so long as she served her probation term. (4) Maria accepted the plea bargain so she could return to care for her children as soon as possible. (5)

Six years later, the police pulled Maria over for failing to completely stop at a stop sign. (6) When running her name through police records, the police found her 2001 assault conviction. (7) The police arrested and brought her to the county jail, where Immigration and Customs Enforcement (ICE) officers then took her into custody. (8) ICE deemed Maria deportable under two different sections of the Immigration and Nationality Act (INA) and denied her release on bond. (9)

Cases like Maria's happen because of courts' interpretations of five words in section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)--"when the alien is released." (10) Courts construe this provision in two distinct ways. Some, like the Fourth Circuit and the Board of Immigration Appeals (BIA) read the clause to mean any time after the alien is released. (11) According to that construction, when a noncitizen who committed a crime is released from custody, she could be subjected to mandatory detention for removal proceedings days, months, or even years after her release into the community. (12) The First Circuit (13) and a majority of district courts, (14) however, have interpreted the clause to mean immediately upon the alien's release. (15)

Section 1226(c) mandates federal detention, without the possibility of bond, for criminal noncitizens when they are released from other custody. (16) This section references only noncitizens with a criminal record. (17) Section 1226(c) stems from the IIRIRA, which was enacted in 1996 to overhaul immigration law. (18) The IIRIRA requires the Attorney General to detain noncitizens with previous criminal arrests and convictions who are deportable for having committed certain offenses. (19) During deportation proceedings, the individual may be held without bond or the right to present her case to the immigration judge for redetermination of custody status. (20) This applies to lawful permanent residents and to noncitizens deemed deportable for misdemeanor offenses that occurred years or even decades previous. (21)

The BIA's interpretation of "when released" in In re Rojas indicates that people like Maria could be subjected to mandatory detention for removal proceedings because they had once committed a punishable offense, even if they were released from criminal custody years prior. This interpretation affords the Department of Homeland Security (DHS) personnel generous leeway to initiate removal proceedings against those arrested or convicted at a delayed date. (22) Delayed proceedings are administratively easier because they eliminate the need for constant communication between local authorities and the DHS regarding the arrest or conviction of every noncitizen nationwide, while also ensuring and expediting the removal of noncitizens with criminal convictions. (23) Moreover, the Immigration and Naturalization Service (INS) (24) preferred this arrangement because the INS could not detain all noncitizens during their deportation proceedings due to limited space in detention facilities. (25) As a result, approximately 20 percent of noncitizens absconded. (26) Forgoing a temporal limitation on detaining criminal noncitizens after their release back into the community provided a way to address this problem. (27) Under this approach, however, someone who has been productively contributing to society for years after her release may be later detained and removed, causing upheaval for families and loved ones who are left behind as well as imposing restraints on the noncitizen's personal liberties. (28)

This Note argues that interpreting section 1226(c) as immediately "after an alien's release" is the correct understanding of the statute and that courts should read a one-year time bar into section 1226(c). Part I analyzes section 1226(c) and contends that the majority of district courts, as well as the First Circuit, correctly interpret section 1226(c). Part II examines the recent legal and policy changes curtailing mandatory detention and concludes that "mandatory" detention may not be all that mandatory. Part III proposes a one-year time bar on the ability to redetain an individual for deportation without bond in order to balance the legitimate security concerns of the statute with respect for personal liberties.

1. INTERPRETING THE WORDS "WHEN AN ALIEN IS RELEASED"

   Courts' differing interpretations of when an alien is released demonstrate the overarching confusion regarding the meaning of section 1226(c). The BIA, as well as the Third and Fourth Circuits, read the phrase to mean any time after the alien is released, (29) while several district courts and the First Circuit interpret it to mean upon the alien's release. (30) This Part provides background on the debate over section 1226(c) by examining the relevant statute and the different courts' analyses.

   1. Statutory Context

      By passing the IIRIRA, Congress significantly changed the process a criminal noncitizen faces once detained. (31) Section 1226(c) provides certain conditions under which an immigration judge may detain a noncitizen and deny bond. The provision states:

      (c) Detention of criminal aliens

      (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 1182(a)(2) of this title,

      (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C) or (D) of this title,

      (C) is deportable under section 1227(a) (2) (A) (i) of this title on the basis of an offense for which the alien has been sentence [sic] to a term of imprisonment of at least 1 year, or

      (D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, 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 pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, 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. (32)

      This provision applies to a criminal noncitizen who has already served out his or her sentence in a local jail or state prison and has...