A few weeks ago, we discussed the conspicuous absence of AG Holder from the ongoing Silva-Trevino controversy.  Since that time, the BIA has issued another opinion attempting to articulate when it is proper for an IJ to abandon traditional categorical (Step One) and Modified Categorical (Step Two) and resort to Silva-Trevino’s amorphous Step Three. 

Removal matters decided solely on Silva-Trevino Step Three continue to make their way to Circuit Court.  The issue then becomes whether the agency’s opinion in Silva-Trevino is entitled to any judicial deference, and if so, how much. 

AILA, joined by the Immigrant Defense Project, Immigrant Legal Resource Center, National Immigration Project of the National Lawyers’ Guild, and the University of Maryland School of Law Immigration Clinic, filed an Amicus Brief with the 4^th Circuit Court of Appeals last week arguing former AG Mukasey’s needless departure from a century of case law in Silva-Trevino is entitled to no deference.  In fact, the 4^th Circuit observed thirty-five years ago that the focus of the INA “is on the type of crime committed rather than on the factual context surrounding the actual commission of the offense.”  Castle v. INS, 541 F.2d 1064, 1066 n. 5 (4^th Cir. 1976).  There was no ambiguity then (which could make room for reasonable agency interpretation) and there is no ambiguity now.  AG Mukasey simply ignored the plain language of the statute, which makes the focus on the criminal conviction, rather than the circumstances surrounding a criminal arrest. 

The Waheed brief was assembled and edited by Jeremy McKinney, Maria Andrade, and Russell Abrutyn for AILA and Isaac Wheeler for the Immigrant Defense Project.  However, the brief itself is simply the latest rendition of what AILA and other associations have been saying since Silva-Trevino was released in 2008.  The original scholarship came from many others who blazed the trail, such as Br. of IDP et al. as Amicus Curiae, Prudencio v Holder, No. 10-2382 (4^th Cir. 2011) and Br. of AILA et al. in Support of Motion for Reconsideration, Matter of Silva-Trevino (A.G. 2008).  Hopefully, our unified message and team approach to Silva-Trevino litigation will continue to yield results!

Two months before leaving office, President George W. Bush’s Attorney General, Michael Mukasey, issued a landmark immigration decision overturning a century of jurisprudence regarding the analysis of criminal convictions for immigration consequences.  In a nutshell, the decision states that to determine whether a crime is a “crime involving moral turpitude” (CIMT), first an Immigration Judge looks to the elements of the offense and asks whether the crime categorically involves moral turpitude or not (the inquiry ended there for most of the last century).  If there is a “realistic probability” that the prohibited act sometimes does and sometimes does not involve moral turpitude, then the Court can look to the record of conviction to see if the specific case involves moral turpitude.  If the record of conviction does not yield an answer, the Court may consider evidence outside the record of conviction.  Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).  The BIA quickly illustrated that while DHS has the ability to attach removal consequences in three different ways (if step 1 doesn’t work, try step 2; if step 2 doesn’t work, try step 3), the noncitizen in removal proceeding does not share the ability to detach immigration consequences based on the underlying circumstances of the conviction.  See, e.g., Matter of Louissaint, 24 I. & N. Dec. 754 (BIA 2009). 

As the AILA Amicus Committee reported last year, “Immigrant advocates, although caught completely unawares–the AG had never told Mr. Silva-Trevino, let alone the broader legal community, why the case was certified–reacted swiftly. Several organizations submitted an amicus brief to the AG urging reconsideration of his decision because of the defective process behind the certification, its inconsistency with a century of uniform precedent, and the negative practical consequences Silva-Trevino will have on the functioning of immigration and criminal systems.” 

To date, Attorney General Holder has been silent on this issue.  The administrative board he oversees, the BIA, continues to apply Silva-Trevino with vigor.  Most recently, the Board issued a precedent decision with the following headnote:

Absent otherwise controlling authority, Immigration Judges and the Board of Immigration Appeals are bound to apply all three steps of the procedural framework set forth by the Attorney General in Matter of Silva-Trevino for determining whether a particular offense constitutes a crime involving moral turpitude.

Matter of Guevara Alfaro, 25 I. & N. Dec. 417 (BIA 2011) (emphasis added).  Reading the headnote in isolation, one could conclude that every case addressing whether an offense is a CIMT now requires a “mini-trial” since step 3 (allowing the IJ to consider any evidence) swallows steps 1 and 2 of the inquiry.  Such a reading, however, contradicts the AG’s own words.  Silva-Trevino, 24 I&N Dec. at 703 (“allowing inquiry beyond the record of conviction does not mean that the parties would be free to present ‘any and all evidence bearing on an alien’s conduct leading to the conviction.’ … In many, if not most, cases, the judge will not have to go beyond the record of conviction, which includes the transcript of any plea.”). 

Unfortunately, this flawed headnote reading is already at play in Immigration Courts.  For example, an Atlanta Immigration Judge had terminated proceedings in a case presenting the question whether Georgia’s public indecency statute was a CIMT.  The IJ had terminated proceedings, finding that Georgia’s public indecency statute was not categorically a CIMT (Matter of Mueller, 11 I&N Dec. 268 (BIA 1965)), and the conviction record failed to evidence a lewd or evil intent.  DHS filed a Motion for Reconsideration.  Guevara Alfaro was released while the DHS motion was pending, and DHS immediately notified the IJ of the BIA decision.  The IJ denied DHS’s Motion for Reconsideration, but, in doing so, applied all three steps of Silva-Trevino.  This exercise prolonged the respondent’s detention for several more weeks.

Understanding Guevara Alfaro requires reading beyond the headnote.  The specific question before the Board was whether “the substantive holding with regard to statutory rape offenses in [Silva Trevino] is limited to cases in which the defendant knew or should have known the victim’s age, and the question whether the respondent’s case meets that criterion can be determined only upon application of the third step of Silva-Trevino’s procedural framework.”  Id. at 419.  The Board concluded in determining whether an “indecency with a child” conviction was a CIMT, an additional inquiry would have to be made to determine whether respondent knew or should have known the age of the victim.  This does not mean that such an additional inquiry would be necessary in “many, if not most” cases.  The Guevara Alfaro headnote, however, does not make any such limitation.  The application of this case is just the latest example of “circumstance-specific” analysis run amuck.

Prior to Silva-Trevino, we have a century of jurisprudence that gives prosecutors, criminal defendants and their attorneys general guidance as to what is and what is not a CIMT, in an age where “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”  Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  We have a century of jurisprudence which promotes the uniform application of the law to similar convictions (regardless of disparate underlying facts).  We have a century of jurisprudence that promotes the efficient adjudication of removal matters.  Silva-Trevino and its progeny turn these principles on their head.

Our current Attorney General needs to hit the “reset” button and get us back to established precedent – which is just in its sheer simplicity — “Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed. When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. Conversely, when it does, no evidence is competent that he was in fact blameless.” United States ex rel. Robinson v. Day, 51 F.2d 1022, 1023 (2nd Cir. 1931) (L. Hand, J.). 

Mr. Holder, where art thou?

One of the funniest parts of my job (in a sad way) is explaining to criminal defense attorneys, prosecutors, and state court judges that the INA’s definition of the word “conviction” differs from their ordinary sense of the word.  In 1996, Congress changed the definition of the word “conviction” to read as follows:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).  Ignorance of the definition can result in disaster.  A criminal defendant can be subjected to mandatory detention and removal, even when a prosecutor and court do not desire a defendant’s exile from the United States.  North Carolina’s best example of this is its drug diversion program.  N.C. Gen. Stat. § 90-96.   A criminal defendant with a first-time drug possession charge is often offered this program to avoid a conviction.  Entry into “90-96″ requires a guilty plea or finding of guilt and placement on probation by a state court judge.  Once the conditions of probation are successfully completed, the drug possession charge is dismissed, and the criminal defendant may later become eligible to expunge the charge.  Id.  Even though this statute was designed and intended to promote rehabilitation and a second chance at life without carrying the “felon” label, North Carolina’s “90-96″ program seems to satisfy the INA’s definition of conviction.  See Matter of Salazar, 23 I&N Dec. 223 (BIA 2002).

One would think the plain language of the statute is expansive enough, but of course some judges have stretched the boundaries of the word “conviction” further.  See, e.g., Singh v. U.S. Atty. Gen., 561 F.3d 1275, 1279 (11^th Cir. 2009)(a state’s conviction of a minor in adult court is considered a conviction for immigration purposes); Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008)(holding that courts costs alone constitute a “penalty”). 

Therefore, it was refreshing to see a panel of the 4th Circuit recently embrace a more natural reading of the word “conviction.”  In Crespo v. Holder, __ F.3d ___, No. 09-2214 (4th Cir. 2011), the Court held that some criminal court adjudications conducted pursuant to Virginia’s first offender statute do not constitute convictions under the INA.  

“Crespo’s 1997 adjudication was pursuant to Virginia Code § 18.2-251, which applies to a first offender who ‘pleads guilty to or enters a plea of not guilty to possession of … marijuana.’ Va.Code Ann. § 18.2-251. After such a plea, ‘if the facts found by the court would justify a finding of guilt,’ the court may, ‘without entering a judgment of guilt,’ instead ‘defer further proceedings and place’ the offender on probation. Id. In his case, Crespo pled not guilty to the offense and the judge found facts justifying a finding of guilt and deferred adjudication over the Commonwealth’s objection. Crespo was sentenced to one year of probation, which he served without incident.”  Id. at 5-6 (slip opinion). 

The question thus became whether in deferred adjudication proceedings, a plea of not guilty combined with a judicial finding of facts “justifying a finding of guilt” satisfies the first prong of the INA’s definition of conviction.  The government argued such a finding “made by the judge under § 18.2-251 is the functional equivalent of a judge finding the alien ‘guilty’.”  Id. at 6-7.  The panel disagreed.  “[I]f the judge finding the alien ‘guilty’ was intended to encompass Crespo’s situation then the phrase ‘or has admitted sufficient facts to warrant a finding of guilt’ would be rendered superfluous since an alien’s plea of guilty would likewise encompass such an admission.”  Id. at 7.  The panel found the most natural reading requires that “the defendant’s guilt has been established by a trial, plea, or admission.”  Id.  An informal factual inquiry is not a trial.  Crespo made no guilty plea or admission.  Therefore, the first prong of the INA’s definition of conviction was not satisfied. 

The Crespo decision should encourage us all to re-examine our own State’s first offender statutes.  The above-referenced “90-96″ program, for example, is limited to a criminal defendant who “pleads guilty to or is found guilty.”  N.C. Gen. Stat. § 90-96(a).  What does it mean in North Carolina to be “found guilty”?  Is it analogous to Virginia’s judicial finding of facts sufficient to justify a finding of guilt, or is it analogous to a trial?  Thanks to Crespo, I look forward to finding out.

 –by guest writer Trina Realmuto at the National Immigration Project

Tired of filing a bond motion and preparing for a bond hearing only to find out that your client has been transferred before the hearing date and the IJ refuses to conduct the hearing due to the transfer?  Well, if you practice in the Carolinas, Kentucky, or another of the many jurisdictions where this routinely happens, you’re likely to be fed up. 

The practice of moving a detainee after a bond hearing is requested and scheduled but before it can take place impedes your ability as an attorney to represent your client.  It forces you to file subsequent bond motions in other immigration courts and travel to the location of the new hearing (or wait on the phone for hours for a telephonic bond hearing), and has a draconian impact on detainees, many of whom cannot afford to pay for additional filings and removal representation, post bond, and put food on the table.  And, significantly, detainees, including those who ultimately are granted bond, have spent additional days, weeks, and months simply waiting for a rescheduled bond hearing to take place.  Why?

Well, it all boils down to the interpretation of 8 C.F.R. § 1003.19(c), the regulation saying that a detainee’s bond hearing request shall be filed where the person is detained.  Advocates say that, as long as the request is filed with the immigration court having administrative control of the place of detention at the time the request is filed, the detainee has complied with this procedural regulation and the bond hearing should go forward even if the detainee has been transferred (provided, of course, that the detainee consents to waive his/her appearance at the hearing).  Interpreting the regulation in this way, advocates argue, would comport with the regulation’s language and purpose, facilitate prompt bond hearings, and improve access to counsel, including communication between attorneys and detainees.

On the other hand, DHS claims that the regulation is jurisdictional and that a bond hearing can never go forward without the person present in the assigned area of responsibility.  DHS does not argue that the detainee must be present at the bond hearing.  DHS, nor does DHS agree that a detainee can waive his or her own presence to allow the bond hearing to take place sooner.  Rather, DHS stoically asserts that a detainee must be physically located within the court’s assigned geographical area for any immigration court to exercise jurisdiction.

The Board of Immigration Appeals has an opportunity to set forth its interpretation of the regulation as, earlier this year, a North Carolina immigration judge asked the BIA to hear the issue on certification.  Briefing in the case was completed on May 27, 2010.  The National Immigration Project of the National Lawyers Guild, along with the Maxwell Street Legal Clinic and the Southern Coalition for Social Justice, filed an amici curiae brief in support of the respondent, who is represented by Jeremy McKinney. 

We hope that the BIA will rule favorably on this important issue.  In the meantime, readers with a case presenting this issue are encouraged to contact Trina Realmuto at the National Immigration Project (trina@nationalimmigrationproject.org) as the Project has a practice advisory, model brief, and sample bond hearing requests available on its website and is monitoring this issue.

– blogging by Stephen Manning, AILA Amicus Chair; Laura Lunn, 2010 Immigration Litigation Summer Fellow

The Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have published decisions on the Visa Waiver Program and eligibility for adjustment of status.  We review those cases here, describe several open questions, and invite readers to contact the AILA Amicus committee with pending cases raising these issues (or other issues we’ve missed).  If you are in a circuit that has not spoken on the issue and are briefing or filing a petition for review, AILA Amicus may be interested in participating in your case.

The state of the circuit law, while uniform, is dispiriting.  The leadings cases are: Bradley v. Attorney General, — F.3d –, 2010 WL 1610597 (CA3 April 22, 2010);  McCarthy v. Mukasey, 555 F.3d 459 (CA5 2009); Nose v. Attorney General of the U.S., 993 F2d 75 (CA5 1993); Lacey v. Gonzales, 499 F.3d 514 (6^th Cir. 2007); Bayo v. Napolitano, 593 F.3d 495 (CA7 2010) (en banc); Lang v. Napolitano, 596 F.3d 426 (CA8 2010);  Zine v. Mukasey, 517 F.3d 535 (CA8 2008); Freeman v. Gonzales, 444 F.3d 1031 (CA9 2006); Momeni v. Chertoff, 521 F.3d 1094 (CA9 2008); Ferry v. Gonzales, 457 F.3d at 1117 (CA10 2006); and  Schmitt v. Maurer, 451 F.3d 1092 (CA10 2006).

The legal question is seemingly straightforward: can a VWP entrant who is admitted to the United States under the authority of § 217 seek adjustment of status under § 245(a) as an immediate relative?

At the outset, we wish to make clear our views that notwithstanding some rumblings from some USCIS field offices (and contrary to HQ policy), USCIS retains jurisdiction to adjudicate VWP entrant adjustment applications – even those filed passed the 90-day period of authorized stay.  In fact, USCIS retains jurisdiction to adjudicate the VWP entrant adjustment application even after a removal order is entered.  The questions presented in the circuit court cases involve an ostensible conflict between §§ 217 and 245 that both preclude and provide for adjustment as a defense to removal.  The ostensible statutory conflict does not implicate USCIS authority.  By regulation, jurisdiction over an adjustment application rests with USCIS unless EOIR has jurisdiction. 8 C.F.R. § 245.2(a)(1).  EOIR only has jurisdiction when removal proceedings are extant. 8 C.F.R. § 1245.2(a)(1).  Asylum-only proceedings are not considered removal proceedings, Zine, 517 F.3d at 543, and VWP entrants are not entitled (normally) to removal proceedings.  Accordingly, asylum-only proceedings or the unconventional removal process for VWP entrants would not withdraw USCIS jurisdiction.

USCIS field offices continue to adjudicate (as they should) VWP entrant adjustment applications filed past the 90-day period.  We are aware of the language in both Momeni and Bayo that, out of context, suggests otherwise. Momeni, 521 F.3d at 1096-97; Bayo, 593 F.3d at 507.  But we think that Judges Kleinfeld and Wood were more interested in literary flair rather than a legal statement.  AILA Amicus encourages readers to contact us or your AILA Chapter Chair if a local policy is different or changes. See also AILA Spring 2007 ICE Liaison Minutes (March 20, 2007) (providing for case by case determination if a VWP applicant will be permitted to proceed through adjudication); Shabaj v. Holder, 602 F.3d 103 (CA2 2010) (applicant permitted to seek affirmative adjustment after § 217 removal).

The legal fight involves § 217’s requirement that all VWP entrants waive their rights to a conventional removal hearing under § 240 and not contest removal (unless seeking asylum).  Litigants have mounted three types of challenges.

Challenges to § 217(b)’s Waiver of Rights Requirement

The Seventh Circuit decision in Bayo describes the challenge. A citizen of Guinea, Mr. Bayo entered the U.S. on the VWP fraudulently with a stolen Belgian passport. When Mr. Bayo married a U.S. citizen more than four years later and applied for adjustment of status, DHS was able to link him to the stolen passport and ordered him removed without a hearing because he entered under the VWP and waived his right to such procedural due process. Mr. Bayo claims he did not understand English and he should not be subject to the waiver of his rights as a result.   The Seventh Circuit held that since Mr. Bayo was waiving the right to a hearing to contest his removal he was waiving a constitutional right guaranteed to immigrants.  Such a waiver must be knowing and voluntary. This must be so because there are noncitizens such as trafficking victims with strong and sympathetic claims to stay in the United States who must have some process to assure that VWP waivers are knowing and voluntary.  The Seventh Circuit expressed no opinion as to what that process should look like, and it speculated that the problem may be largely solved, given the advent of ESTA (see below).

In Bradley, the petitioner likewise challenged the knowing and voluntary aspect of his waiver claiming that he was intoxicated when he entered into it.

In both Bayo and Bradley, the circuit courts ruled against the litigants on the basis that neither could prove prejudice for the violation of the constitutional right.  As such the procedure necessary to ascertain if a waiver is knowing or voluntary described as necessary in Bayo has not yet been developed.

Challenges to § 217(b)(2)’s No Contest Provision

Litigants have challenged the scope of the no contest clause as applied to immediate relative adjustments citing to § 245(c)(4)’s language barring adjustment applications for individuals “other than an immediate relative”.  Scope challenges fall into three categories.

The first category involves a blanket challenge to the no contest provision as inapplicable to immediate relative adjustment of status applications no matter when filed.  Under this theory, the no contest provision’s scope is limited by § 245(c)(4)’s language and does not preclude a defensive adjustment application.  For example, in Zine, the petitioner sought to have his immediate relative adjustment application considered in removal proceedings.  He had sought asylum affirmatively, his asylum application was denied, and asylum-only removal proceedings were commenced.  While in asylum-only proceedings, he married and sought to reopen his removal proceedings to seek adjustment before the Immigration Court.  The IJ and Board denied his motion.  He was in asylum-only proceedings and the IJ and Board refused to consider his adjustment application.

The second category rests on the claim that an adjustment of status application filed after the 90-day VW period expired but prior to any § 217(b) action is taken to remove the VWP entrant entitles the applicant to an adjudication of the application, and if the application is denied, a hearing before an IJ to renew the application.  Only the cases of Momeni and Schmitt involved applicants who had already been ordered removed under § 217 at the time they applied for adjustment of status.  Additionally, most courts have specifically ruled that precluding an application for adjustment of status that is filed after the 90-day VW period avoids a conflict between § 217(b)’s no contest provision and § 245(c)(4)’s immediate relative exception to the bar on adjustment of status applications following VWP entry.

A third category, also based on the “no conflict argument,” is that § 217(b)’s no contest provision is limited in scope and does not apply to VWP entrants who file for adjustment prior to the expiration of the 90-day VW period.  Under this theory, such applicants are entitled to renew or defend an adjustment application in conventional removal proceedings.  Several of the cases discuss the possibility, e.g., Lacey, 499 F.3d at 519 n6, but only the Ninth Circuit and Tenth Circuits have held so directly.  Freeman, 444 F.3d at 1033-34;  Momeni, 521 F.3d at 1097; Schmitt, 451 F.3d at 1097.

Notably, no court has ever explicitly discussed the effect of § 245(c)(2)’s immediate relative exception to the bar on being in unlawful immigration status on the date of filing the adjustment of status application.  This challenge would involve arguing that § 245(c)(2) and (c)(4) combine to create an immediate relative exception to § 217(b)’s no contest provision where the adjustment of status application is filed after an overstay but prior to a § 217 removal order being entered, because (c)(2) does not create a conflict but rather a specific exception to § 217(b).  The absence of an explicit discussion might not mean much for litigants in the circuits with published decisions, but for others, it remains an open question.

Challenges to Adequacy of the Record

There are different ways of challenging the record, though none of the litigants to date have been successful.  In Bradley, the petitioner argued that the record did not contain contain his signed waiver of rights and that this is an element of the removal ground that must be proven by clear, convincing evidence.  In the Bayo litigation, the authority of the officer to order Mr. Bayo deported was at issue but had not been exhausted by the petitioner and not decided by the Seventh Circuit. The record contained at least three different removal orders in different formats entered at different times by different individuals.  In practice, officers such as a “Deportation Officer” or “Supervisory Detention and Deportation Officer” may enter a removal order under § 217.  The regulations limit the power to order a § 217 removal to only a district director. 8 C.F.R. § 217.4(b).  It was unclear in the record if any of these officers had the authority to issue the removal order. See 8 C.F.R. § 1.1(o) (defining district director).  The record assembled by the agency in unconventional removal proceedings such as § 217 (or reinstatement under § 241(a)(5)) may also be subject to challenge as incomplete or inadequate. See Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (CA9 1989) (“The whole administrative record, however, is not necessarily those documents that the agency has compiled and submitted as ‘the’ administrative record.”).

The cases seem to be chasing after a moving legal regime as CBP has just announced the elimination of the form I-94W.  Every traveler from a VWP country seeking admission to the United States must now seek pre-travel authorization through ESTA – the Electronic System for Travel Authorization. See AILA Doc. No. 09031863.  The implementation of ESTA raises a whole set of legal questions that we will set aside for another post – including some very interesting constitutional questions and questions involving victims of human trafficking.

In Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), the Board of Immigration Appeals concluded that mandatory detention was triggered when an alien (1) is removable due to one of the triggering offenses listed at INA § 236(c)(1) and (2) the alien is “released” from any non-DHS custodial setting, whether the release is related to the triggering offense or not. To date, the BIA has had a hard time finding one federal judge that agrees with this legal conclusion. Last December, the 1^st Circuit directly rejected the BIA’s decision and agreed that Mr. Saysana was entitled to a bond hearing. Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009). However, the Board’s precedential Saysana decision continues to control in the remainder of the country’s Immigration Courts, a position the AILA Amicus Committee believes is untenable. Why? Because this particular brand of mandatory detention typically preys upon noncitizens who have long put their criminal history behind them and stand the best chance of winning relief before an Immigration Court.

A classic example of this came to the Committee’s attention recently. Luis Felipe Garcia-Arreola was convicted of a drug offense prior to 1996, which made him removable but eligible for INA § 212(c) relief. He was also not subject to mandatory detention because his release from the drug offense pre-dated the effective date of the mandatory detention statute. However, Mr. Garcia-Arreola was arrested last year for misdemeanor assault. The charge was dismissed by the State of North Carolina, but ICE used this “non-DHS custodial encounter” to make an immigration arrest and hold him pursuant to mandatory detention. AILA member Gerry Chapman represented Garcia-Arreola before the Charlotte Immigration Court. In a courageous decision, Immigration Judge Teresa Holmes-Simmons granted bond to Garcia-Arreola and distinguished Saysana. The government appealed the judge’s decision and, for a few days, attempted to enforce an automatic stay of Garcia-Arreola’s detention. The prompt filing of a habeas petition by a member of the AILA Amicus Committee resulted in ICE dropping the automatic stay. Mr. Garcia-Arreola is currently out of ICE custody but his bond appeal remains pending.

In its brief filed in late 2009, the government rehashed their standard mandatory detention arguments. However, earlier this year, in light of the First Circuit’s decision, Immigration and Customs Enforcement sent a letter to the BIA asking for the court to reconsider Matter of Saysana in the context of Mr. Garcia Arreola’s bond appeal. Due to the importance of this issue and the distinct possibility of a positive change of national mandatory detention policy, AILA’s Amicus Committee notified the BIA that an amicus brief in support of Mr. Garcia Arreola and the Immigration Judge’s decision would be filed.

Today, the AILA Amicus Committee filed a brief in support of Mr. Garcia Arreola’s bond with the Board of Immigration Appeals (BIA).

The brief outlines the Board’s losing streak in the District Court via habeas corpus filings challenging the government’s mandatory detention statutory interpretations under Matter of Saysana and culminating with the First Circuit overturning Matter of Saysana for Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island. While encouraging the Board to overturn Saysana, concomitantly AILA Amicus Committee asked the tribunal to reconsider its overall approach to mandatory detention. The Board’s on-going support for the broad interpretations of INA § 236(c), even beyond Saysana, has resulted in large numbers of additional detainees filing the nation’s detention centers, not to mention untold emotional, financial and psychological hardship and suffering imposed on both detainees and their families. The Amicus Committee urged the BIA to reconsider its heretofore strict and frequently overturned interpretations of INA § 236(c) in favor of a narrower and more tightly applied mandatory detention policy.

In short, the Amicus team is asking the BIA to follow the plain language of the law: mandatory detention applies when ICE detains a noncitizen removable for one of the INA § 236(c)(1) offenses “when released” from criminal custody. The statute (and anyone’s simple notion of justice) requires a nexus between the triggering offense and the criminal custody. It is our hope that the BIA will see the writing on the wall and do the right thing.

—Co-written by AILA Amicus Committee Members Kerry Doyle and Jeremy McKinney