Immigration Bond is as complicated as other areas of Immigration Law. The possibility for Bond and the procedures were changed with the passing of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). AEDPA required mandatory detention for certain immigrants and IIRAIRA increased number of immigrants subject to mandatory detention.
Many immigrants taken into Immigration and Customs Enforcement (ICE) custody will be given bond; however many others will have to fight for bond if it is even permitted. Courts have held that if an immigrant falls in the group of people subject to mandatory detention, then the Immigration Judge does not even have the right or ability to give the immigrant bond. The Immigration Judge does have the power to determine if the immigrant falls within the group of people for whom the Immigration Judge does not have the power to give bond. The hearing where the Immigration Judge determines this is commonly referred to as a Joseph hearing or Matter of Joseph hearing, named after a case with this issue. See Matter of Joseph, 22 I&N Dec. 799 (BIA 1999).
At the Matter of Joseph hearing, the immigrant has the burden or responsibility to show that the immigrant is not in the group of people to whom the Immigration Judge doesn’t have the power to give bond. The immigrant must do that by showing that the government (Department of Homeland Security) is “substantially unlikely to prevail” on the charges which relate to those in which the immigrant is being held for mandatory detention.
This generally requires legal arguments why state crimes do not fit within the definitions of the crimes in Immigration and Nationality Act (INA) section 236(c), which is the mandatory detention section. Sometimes the argument is impossible but there is another argument to be made when an immigrant is released from criminal custody and then months or years later detained by ICE for no other reason than to detain them and attempt to remove (deport) them from the United States. The plain language of INA section 236(c) indicates that in order to be subject to mandatory detention that they should be detained by ICE immediately after release from criminal custody.
In addition to the plain language, there is also a practical consideration. People are released from criminal custody and strongly encouraged to become model citizens, eg stay out of trouble, obtain gainful employment, pay taxes, serve the community, etc. Yet, those Legal Permanent Residents or other immigrants are encouraged not to do those things if they are counting the days until ICE takes them into custody for which they cannot have the opportunity for bond. Some still get released from criminal custody and make a new life for themselves and then if they are taken into ICE custody, they risk losing it all because their jobs likely will not keep them, uncertainty will exist for their families which causes strain and stress on even the strongest relationships, among all the other problems people face while in custody.
The legal argument that those persons are not immediately taken into ICE custody from criminal custody should be eligible for bond starts with a review of the statutory language.
INA section 236(c) states, in relevant part:
(1)Custody. The Attorney General shall take into custody any alien who (A)-(D)[enumerated criminal sections omitted]
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).
U.S. District Courts have found that the statutes language is unambiguous and therefore, the Courts were not bound by the holding in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001) and rather held that in order for an alien to be subject to mandatory detention under INA § 236(c), the Attorney General must have taken the alien into custody when the alien was released from criminal custody. One court looked to the dictionary to define “when” and found it was defined as “just after the moment that.” Alikhani v. Fasano, (1999) 70 F. Supp. 2d 1124 (Dist. Court, S.D. Cal.) (internal citations omitted). The Court in Velasquez v. Reno, (1999) 37 F. Supp. 2d 663 (Dist. Court, D. N.J.) also found that a Respondent was not subject to mandatory detention under INA § 236(c). Another District Court in Waffi v. Loiselle, (2007) 527 F. Supp. 2d 480 (Dist. Court, E.D. Virginia) also found that the “when the alien is released” language is unambiguous and refused to follow Matter of Rojas, 23 I&N Dec. 117. Further, the Court in Waffi looked at a few dictionaries and found that a meaning involving immediacy was the correct meaning of “when” in this statute. 527 F. Supp. 2d at 488. The Court in Quezada-Bucio v. Ridge, (2004) 317 F. Supp. 2d 1221 (Dist. Court, W.D. Washington) went through a detained analysis of statutory construction and deference to agency decisions to determine it was not bound by Matter of Rojas, 23 I&N Dec. 117 and that “when the alien is released” language in INA § 236(c) operates to exclude those persons from the mandatory detention requirement in INA §236(c) who are detained by ICE months or years after being released from criminal custody.
We must not forget about the logical argument that also follows that a person should not be released and given the opportunity to make a life and then re-detain them without the possibility for bond. The practical and logical argument especially comes into play to show that the statute’s authors must have considered this situation and therefore added the “when released” language to cure it.
Written by Robert Myers, Los Angeles Immigration Attorney