Academic journal article Michigan Law Review

PROPOSING A ONE-YEAR TIME BAR FOR 8 U.S.C. § 1226(c)

Academic journal article Michigan Law Review

PROPOSING A ONE-YEAR TIME BAR FOR 8 U.S.C. § 1226(c)

Article excerpt

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 Circuit13 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. …

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