ADENIJIi

                                              Interim Decision #3417




                In re Adewunmi ADENIJI, Respondent

                      File A41 542 131 - York

                     Decided November 3, 1999


                     U.S. Department of Justice
              Executive Office for Immigration Review
                    Board of Immigration Appeals



(1) Section 236(c) of the Immigration and Nationality Act, 

(c) (Supp. II 1996), does not apply to aliens whose most
  recent release from custody by an authority other than the
  Immigration and Naturalization Service occurred prior to the
  expiration of the Transition Period Custody Rules.

(2) Custody determinations of aliens in removal proceedings who are
  not subject to the provisions of section 236(c) of the Act are
  governed by the general custody provisions at section 236(a) of the
  Act.

(3) By virtue of 

(c)(8) (1999), a criminal alien in
  a custody determination under section 236(a) of the Act must
  establish to the satisfaction of the Immigration Judge and the
  Board of Immigration Appeals that he or she does not present a
  danger to property or persons.

(4) When an Immigration Judge bases a bond determination on
  evidence presented in the underlying merits case, it is the
  responsibility of the parties and the Immigration Judge to ensure
  that the bond record establishes the nature and substance of the
  specific factual information considered by the Immigration Judge
  in reaching the bond determination.


Michael Maggio, Esquire, Falls Church, Virginia, for respondent




                                 1
Interim Decision #3417




Brett M. Parchert, Appellate      Counsel,   for   the   Immigration   and
Naturalization Service



Before:   Board En Banc:    DUNNE, Vice Chairman; SCIALABBA, Vice
          Chairman; HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON,
          JONES, and MILLER, Board Members.         Concurring and
          Dissenting Opinion: ROSENBERG, Board Member. Dissenting
          Opinions: SCHMIDT, Chairman; joined by VACCA, VILLAGELIU,
          and GUENDELSBERGER, Board Members; GRANT, Board Member,
          joined by MOSCATO, Board Member.


FILPPU, Board Member:


  The Immigration and Naturalization Service has appealed the
Immigration Judge’s March 10, 1998, bond decision ordering the
respondent released on his own recognizance.        The Immigration
Judge’s bond decision was based on the Transition Period Custody
Rules (“Transition Rules” or “TPCR”) enacted by section 303(b)(3) of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Division C of 

 Stat. 3009-546,
3009-586 (“IIRIRA”).   See Matter of Noble, 

 (BIA
1997). The Transition Period Custody Rules have expired, however,
and a number of issues arise by virtue of that expiration.


                             I.   ISSUES

 The principal issues before us concern the following:

      1) Whether we have jurisdiction over a bond appeal when
    the underlying order was rendered during the existence of
    the Transition Rules;

      2) Whether the respondent is currently subject to
    mandatory detention under section 236(c) of the Immigration
    and Nationality Act, 

(c) (Supp. II 1996), in
    the wake of the expiration of the Transition Rules;


                                   2
                                              Interim Decision #3417




      3) Whether the respondent, if he is not subject to
    mandatory detention, must show that he is not a danger to
    property or   persons in order to obtain bond under the
    general bond provisions of section 236(a) of the Act; and

      4) Whether we may look to the record in the underlying
    merits case (that is also on appeal to the Board) to find
    support for the Immigration Judge’s bond ruling, where the
    allegedly relevant material was not introduced into the
    bond record before us.

  As we explain in detail below, we find that we have continuing
jurisdiction over this bond appeal. On the issue of whether the
respondent is subject to mandatory detention, we accept the view
currently advanced by both parties that the respondent’s custody
proceedings are governed by the general bond provisions of section
236(a) of the Act and that the criminal alien bond provisions of
section 236(c) do not apply because the respondent was released from
criminal custody prior to the expiration of the Transition Rules.

  Under our case law addressing general bond provisions of prior law,
an alien ordinarily would not be detained unless he or she presented
a threat to national security or a risk of flight. See Matter of
Patel, 

 (BIA 1976). But we agree with the parties’
conclusions that an assessment of the alien’s danger to property or
persons is a relevant consideration under section 236(a) of the Act,
even though we differ with regard to the reasons for that
conclusion. In this respect, we find the regulation at 

(c)(8) (1999) to be controlling. See Matter of Drysdale, 

 (BIA 1994). Finally, we find that a remand of this
case is necessary to develop the record further to determine whether
the respondent, a criminal alien, poses a danger to property or
persons or is a flight risk, because we consider it inappropriate to
look to portions of the record in the merits appeal that were not
referenced in or made part of the bond record.


                      II.   PROCEDURAL HISTORY

   A Notice to Appear (Form I-862) was issued on April 17, 1997,
charging the respondent with removability under section 237(a)(1)(A)


                                  3
Interim Decision #3417




of the Act, 

(a)(1)(A) (Supp. II 1996), as an alien
who was inadmissible at the time of his entry as a lawful permanent
resident.     The Service alleged two underlying grounds of
inadmissibility.    First, it charged that the respondent was
inadmissible under section 212(a)(9)(A)(i) of the Act, 

(a)(9)(A)(i) (Supp. II 1996), as an alien who had been ordered
removed and had sought admission in 1987 within 5 years of removal
without obtaining prior consent from the Attorney General to reapply
for admission.   Second, the Service charged the respondent with
inadmissibility under section 212(a)(6)(C)(i) of the Act for having
procured his immigrant visa by fraud or willful misrepresentation
because he failed to disclose that he had been arrested and
deported.

  In addition, on December 4, 1997, the Service charged the
respondent under section 237(a)(2)(A)(iii) of the Act as an alien
convicted of an aggravated felony, as defined in sections
101(a)(43)(G), (M), and (U) of the Act, 

(a)(43)(G),
(M), (U) (Supp. II 1996).       This charge was based upon the
respondent’s conviction on December 27, 1996, and sentence to
imprisonment of 1 year and 1 day, for the offense of conspiracy to
commit bank fraud through acts intended to fraudulently withdraw a
total of $18,300 from the bank accounts of two other persons.

  On March 10, 1998, the Immigration Judge found the respondent
removable as an aggravated felon under section 237(a)(2)(A)(iii) of
the Act and granted him withholding of removal under section
241(b)(3) of the Act, 

(b)(3) (Supp. II 1996). The
Immigration Judge then conducted a bond hearing and ordered the
respondent released on his own recognizance. The Service appealed
both rulings. We address the bond appeal in this decision.


                  III.   POSITIONS OF THE PARTIES

  We requested supplemental briefs and held oral argument on the
issue of the respondent’s continued eligibility for release after
the expiration of the Transition Period Custody Rules. Immediately
prior to oral argument, the Service reversed its position and argued
that section 236(c) of the Act requires mandatory detention of a



                                 4
                                             Interim Decision #3417




criminal alien only if he or she was released from criminal custody
after October 8, 1998, the last day that the Transition Period
Custody Rules were in effect.

  The Service further argued that it is appropriate to consider
whether the alien is a danger to the community, and that cases such
as Matter of Drysdale, supra, and Matter of Andrade, 

(BIA   1987),  are   relevant   to   a  criminal   alien’s   custody
determination, even under the general bond provisions set forth in
section 236(a) of the Act. Applying those factors here, the Service
requests that we uphold the district director’s decision refusing to
release the respondent on any bond condition or, alternatively, that
we set a substantial bond.

  Because of the Service’s change in position, the parties are in
agreement on the dispositive issues except the amount of bond. The
respondent agrees that section 236(a) of the Act should govern and,
at oral argument, agreed that any threat posed to the community is
a relevant consideration where the bond record contains evidence of
criminal or terrorist activity.

  In a postargument brief, the respondent asserts that we should
consider in this bond appeal the Immigration Judge’s reasons for
granting withholding of removal, as set forth in the merits decision
in the underlying removal proceedings. The respondent argues that
the Immigration Judge’s reasons for granting withholding of removal
had a bearing on the custody ruling.

  Finally, at oral argument, the respondent questioned whether we
have continuing jurisdiction over this bond appeal, suggesting that
a bond determination made under the Transition Period Custody Rules
is not a custody determination pursuant to 

.


       IV.   CONTINUING JURISDICTION OVER THE INSTANT APPEAL

  We have appellate jurisdiction over bond rulings of Immigration
Judges by virtue of 

(b)(7), 3.19(f), and
236.1(d)(3)(i) (1999).     Notwithstanding any lack of clarity
regarding appeals of Transition Rule bond orders in the current
versions of 

(c) or § 236.1(d)(1), the initial


                                 5
Interim Decision #3417




regulations to implement the IIRIRA intended, with respect to
criminal aliens who fell under the Transition Period Custody Rules,
to retain the prior structure for Immigration Judge bond
redeterminations and appeals. See 

, 450 (Jan. 3,
1997) (noting, with regard to proposed rulemaking to implement the
IIRIRA, that “the proposed rule essentially preserves the status quo
for bond determination by the Service and bond redetermination
proceedings before immigration judges”); 

, 10,323
(Mar. 6, 1997) (rejecting a commenter’s assertion that “it was not
the intention of Congress that EOIR continue to exercise bond
redetermination authority under the Transition Rules”).

  Importantly, at the time of the respondent’s bond redetermination
hearing and the Service’s appeal, 

(c)(1)(ii) (1998)
provided that “[w]hile the Transition Period Custody Rules remain in
effect, this paragraph and paragraph (d) of this section shall be
subject to those Rules.” (Emphasis added); see also 

, 15,363 (1997). We understand this provision to incorporate
the Transition Period Custody Rules into the existing regulatory
structure for district director bond determinations, Immigration
Judge bond redeterminations, and appeals to the Board. Subsequent
to the respondent’s bond hearing and the filing of this appeal, more
detailed bond regulations were promulgated. But these regulations
also envisioned some Immigration Judge bond adjudications under the
Transition Rules, as well as appeals to us. 

(1998); 

(f).     The absence of a reference to the
Transition Rules in 

(d)(1), therefore, does not
reflect an intent to completely remove jurisdiction over Transition
Rule bond cases from either Immigration Judges or the Board.

  Our appellate jurisdiction over this case has not been extinguished
by a change in the substantive bond law that was applied by the
Immigration Judge.1    We have independent authority to assess the



1  We would, however, lack jurisdiction to order the respondent
released on bond were we to find that he is subject to the mandatory
detention provisions of section 236(c) of the Act, as the
regulations do not allow Immigration Judge custody redeterminations
in such cases. 

(h)(2)(i)(D). However, we agree that
                                                      (continued...)

                                 6
                                             Interim Decision #3417




record and make our own bond determination under the current law.
Matter of Burbano, 

 (BIA 1994). A remand might be
necessary if the factors relevant to bond under the current law were
not those that were germane at the time of the hearing before the
Immigration Judge, or if, as here, there were other defects in the
way the factors were applied below. See Matter of Noble, supra, at
686.

  Furthermore, it does not appear that the dispute has become moot.
We have been informed that on July 22, 1999, the district director
issued an order (evidently pursuant to the Service’s new
interpretation of the statute) requiring that the respondent
continue to be detained without bond.       On July 26, 1999, the
Immigration Judge entered an order declaring that the Service’s new
determination did not provide a reason for the Immigration Judge to
alter his earlier decision releasing the respondent on his own
recognizance. Under these circumstances, the dispute between the
parties persists. Although some of the issues have changed, neither
party asserts that this appeal is moot by virtue of the Service’s
new legal position or by virtue of its subsequent review and
reaffirmation of its ultimate conclusion that the respondent should
be detained without bond. Matter of Valles, 

 (BIA
1997).


     V.   APPLICABILITY OF SECTION 236(c) FOLLOWING EXPIRATION
                       OF THE TRANSITION RULES

  The Transition Period Custody Rules were invoked by the Attorney
General pursuant to section 303(b)(2) of the IIRIRA, 110 Stat. at
3009-586, which provides:

      NOTIFICATION REGARDING CUSTODY.—If the Attorney General,
      not later than 10 days after the date of the enactment
      of this Act, notifies in writing the Committees on the
      Judiciary of the House of Representatives and the Senate
      that there is insufficient detention space and


1(...continued)
the respondent is not subject to mandatory detention.

                                 7
Interim Decision #3417




      Immigration   and   Naturalization   Service   personnel
      available to carry out section 236(c) of the Immigration
      and Nationality Act, as amended by subsection (a), or
      the amendments made by section 440(c) of Public Law 104-
      132, the provisions in paragraph (3) shall be in effect
      for a 1-year period beginning on the date of such
      notification,   instead   of   such   section   or  such
      amendments. The Attorney General may extend such 1-year
      period for an additional year if the Attorney General
      provides the same notice not later than 10 days before
      the end of the first 1-year period. After the end of
      such 1-year or 2-year periods, the provisions of such
      section 236(c) shall apply to individuals released after
      such periods.

  The IIRIRA was enacted on September 30, 1996. On October 9, 1996,
within the 10-day period specified by section 303(b)(2) of the
IIRIRA, the Attorney General, through the Commissioner of the
Service, made the necessary notifications.     The Attorney General
subsequently invoked the additional 1-year extension allowed under
section 303(b)(2) of the IIRIRA. The additional 1-year extension
expired at the end of the day on October 8, 1998. The Transition
Rules themselves specified that they would only control criminal
alien custody determinations “[d]uring the period in which this
paragraph is in effect pursuant to paragraph (2),” as quoted above.
IIRIRA § 303(b)(3)(A). The statute contains no explicit savings
clause pertaining to the Transition Period Custody Rules, and we
agree with the parties that those rules expired at the end of their
second year.

  Section 236(c) of the Act would have become effective on April 1,
1997, had the Attorney General not invoked the Transition Rules, and
thus would have governed the release of covered criminal aliens
during the course of removal proceedings on or after April 1, 1997.
Section 236(c) provides in relevant part as follows:

         (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 212(a)(2)[1182],


                                 8
                                             Interim Decision #3417




            (B) is deportable by reason of having committed any
         offense covered in section 237(a)(2)(A)(ii), (A)(iii),
         (B), (C), or (D)[1227],

            (C) is deportable under section 237(a)(2)(A)(i) on
         the basis of an offense for which the alien has been
         sentence[d] to a term of imprisonment of at least 1
         year, or

            (D) is inadmissible under section 212(a)(3)(B) or
            deportable under section 237(a)(4)(B),

      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 . . . that release of the alien from custody is
      necessary [for certain witness protection matters], 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.

  The respondent makes two interrelated arguments opposing the
application of section 236(c) to his current situation. He attacks
our decision in Matter of Noble, supra, contending that the literal
language of section 236(c) provides for its application to an alien
only if the Service immediately takes custody of the alien “when the
alien is released” from criminal incarceration (the “when released”
language).    Additionally, the respondent, now supported by the
Service, contends that the last sentence of section 303(b)(2) of the
IIRIRA makes section 236(c) applicable only to individuals released
from criminal custody after the expiration of the 2-year period
during which the Transition Rules were in effect (the “released
after” language). We need not address at this time the respondent’s
arguments respecting Matter of Noble and the “when released” clause,



                                 9
Interim Decision #3417




as we accept the parties’ construction of the “released after”
clause in the last sentence of section 303(b)(2).2

  Proper statutory construction must begin with the words used by
Congress. INS v. Cardoza-Fonseca, 

 (1987). As
previously noted, the last sentence of section 303(b)(2) of the
IIRIRA provides that after the end of the transition period, “the
provisions of such section 236(c) shall apply to individuals
released after such periods.”

  We confronted the meaning of this sentence in Matter of Noble
without coming to any resolution on how it should be construed. We
do not believe that this last sentence of section 303(b)(2),
standing alone, is free from uncertainty. The natural sense of the
words, at first glance, would seem to point in the direction
presently advanced by the parties. But the term “released” is not
expressly tied to any other language that would clarify whether it
refers to release from criminal custody, Service custody, or some
other form of detention.

  In our judgment, additional language is needed to clarify the
sentence. The parties now propose that this sentence should be read
to say that “the provisions of such section 236(c) shall apply to
individuals released [from criminal custody] after such periods.”
The reading previously given this sentence, by a three-member panel
of the Board in a series of unpublished cases, is not the one now
advanced. Those unpublished cases construed the sentence to say
that “the provisions of such section 236(c) shall apply to
individuals [seeking to be] released after such periods.”

  The difference is profound. The reading in our unpublished cases
extends the mandatory detention provisions of section 236(c) to any
covered criminal or terrorist alien in Service detention after the



2  Given the construction of the “released after” sentence that we
adopt today, the effect of the “when released” clause would appear
to be of concern principally in the case of an alien who was
released from criminal custody after the expiration of the
Transition Rules, but who was not promptly taken into Service
custody.

                                10
                                             Interim Decision #3417




expiration of the Transition Rules. The parties’ proposed reading,
on the other hand, extends mandatory detention only to aliens who
have been released from criminal (and perhaps psychiatric and other
nonService) confinement after the expiration of those rules. This
would permit bond for all aliens released from nonService custody
before the Transition Rules expired, even if those aliens were not
eligible for bond during the life of the Transition Rules
themselves.3

  The meaning assigned to the last sentence of section 303(b)(2)
should be the one that emerges from a reading of the statute as a
whole, taking into account its object and policy. John Hancock Mut.
Ins. Co. v. Harris Trust & Sav. Bank, 

 (1993).
Minor gaps in a statute should be filled by extrapolating from the
statute’s general design. See United States v. Jackson, 

 (1968).

  In Matter of Noble, supra, we expressed a reluctance to adopt the
meaning of this “released after”sentence that the parties propose
today.   We saw it as providing criminal and terrorist aliens a
“springing” opportunity for release from Service custody under
lenient standards not applicable to some of those aliens for
approximately a decade. For example, an aggravated felon who has
not been lawfully admitted has never been eligible for release,
under the permanent provisions of the statute and during the
pendency of proceedings, since mandatory detention was first
introduced in the Anti-Drug Abuse Act of 1988, 

 Stat. 4181 (“ADAA”). See ADAA § 7343, 102 Stat. at 4470; see
also Immigration Act of 1990, 

, 

 As indicated earlier, we accept the reading of the statute
advanced by the parties. This change from the approach taken in our
unpublished panel rulings could very well alter the results in some
of those earlier panel decisions. Under our decision in Matter of
Valles, supra, aliens affected by those panel dispositions are not
required to seek reopening from the Board before seeking a new bond
redetermination from an Immigration Judge. In this respect, our
ruling today amounts to a material change in circumstances under

(e), such that a reexamination of bond by Immigration
Judges may be warranted.

                                11
Interim Decision #3417




4978, 5049 (“1990 Act”); Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991, 

, 

, 1751 (effective as if included in the 1990 Act).

  Even under the temporary Transition Period Custody Rules, an
aggravated felon who was not lawfully admitted remained barred from
release unless it was established that he or she was not a danger to
persons or property, was not a flight risk, and would not be
accepted   by   the   country  designated    for   removal.   IIRIRA
§ 303(b)(3)(B)(ii). Under the position advanced by the parties,
such an aggravated felon would now suddenly be eligible for bond so
long as the alien’s release from criminal custody occurred prior to
the expiration of the Transition Rules. And this would be true even
if that same felon already had been in Service custody for many
months because bond was not available under the Transition Rules.

  If this were the end of the analysis, we would have substantial
difficulty accepting the proffered construction in view of the
overall structure of the IIRIRA’s custody provisions, as well as the
historical context of the similar provisions that were being
replaced.    In Matter of Noble, supra, at 682, we found it
incomprehensible that Congress could have intended that such an
alien be released after the expiration of the Transition Rules,
without any consideration of his or her dangerousness, at the same
time that Congress was mandating the detention of criminal aliens.
The Transition Rules were not intended as a benefit to criminal or
terrorist aliens, but rather as a temporary postponement of
stringent custody requirements if the Service was not immediately
able to carry out its obligations under the permanent law. It would
be anomalous to deem the expiration of the Transition Rules and the
concomitant conversion to the stringent permanent law to be the
occasion upon which Congress relaxed the rigors of the bond
provisions through increased generosity toward all criminal aliens
in Service custody on the date of that expiration.

  There is, however, a scenario under which the parties’ proposed
reading of the last sentence of section 303(b)(2) makes sense in
view of the legislation as a whole, notwithstanding the various
unexpected results flowing from that reading. See Matter of Noble,
supra, at 681-83. Congress enacted the Transition Rules knowing
that the Service might lack the capacity to enforce the permanent


                                12
                                              Interim Decision #3417




rules. That lack of capacity might not be fully rectified during
the 2-year Transition Period.     It therefore would make sense to
apply the permanent rules to persons coming into Service custody
after the Transition Period ended, and to continue to apply the
Transition Rules to persons who had been subject to them during
their existence.    This would lead to no anomalous “springing”
opportunities to obtain bond for criminal aliens, such as aggravated
felons who never were lawfully admitted and whose detention had been
required under the Transition Rules.

  The problem is that Congress did not enact a savings clause for the
Transition Rules. And we consider it beyond our authority to treat
the IIRIRA, even implicitly, as containing one.       We have doubts
whether Congress intended one at all, let alone what its precise
terms might have been. That doubt is reinforced to the extent that
sudden bond eligibility arises for certain categories of aliens
under the parties’ reading of the statute.

  We consequently perceive tension between the language of the last
sentence of section 303(b)(2) and the overall thrust of the IIRIRA.
Nevertheless, the parties’ reading of the statute is not
unreasonable, in light of its exact terms and the uncertainty we
experience in discerning how Congress expected this provision to
operate. Further, the district courts around the country have not
agreed with the construction of the statute contained in our
unpublished panel rulings. In response to these court decisions,
the Service has changed its own view of the statute and has
implemented that change in its own bond adjudications.      At oral
argument, the Service indicated that there were no plans to
challenge these federal district court decisions in the courts of
appeals.   See Matter of Silva, 

 (BIA 1976)
(acceding to a construction of section 212(c) of the Act, 

(c) (1976), under generally similar circumstances); see also

 (Appleman, concurring).

  In this case, the natural sense of the language in question points
to the construction jointly supported by the parties.           That
interpretation of the “released after” language in the last sentence
of section 303(b)(2) of the IIRIRA would not be inconsistent with
the legislation as a whole if Congress intended, but neglected, to
include a savings clause pertaining to persons who were subject to


                                 13
Interim Decision #3417




the Transition Period Custody Rules during their existence. In such
circumstances, any unexpected results would arise from the absence
of the savings clause. In the end, we have found little that helps
us determine what Congress actually intended when it adopted the
language in that last sentence.

  In sum, we are uncertain of the intent behind the “released after”
language and agree that its natural sense supports the parties’
reading. While the statute as a whole raises questions about that
reading, we cannot rule out the possibility that the answer lies in
a failure to enact a savings clause for persons subject to the
Transition Rules. Consequently, we are able to accept the parties’
reading when we factor in the district court rulings rejecting our
prior construction, the Service’s reversal of its own position, and
the Service’s decision not to pursue the litigation in the court
cases. Given this overall set of circumstances, we find that the
respondent is not subject to mandatory detention under section
236(c) of the Act because he was released from his nonService
custodial setting (i.e., from criminal custody) prior to the
expiration of the Transition Rules.


                   VI.   STANDARDS GOVERNING BOND

  We agree with the parties that the general bond provisions of
section 236(a) govern bond for the respondent at present.        The
parties further agree that the respondent must show that he is not
likely to abscond, is not a threat to the national security, and is
not a threat to the community, in keeping with our decision in
Matter of Drysdale, supra. The “threat to the community” test in
Drysdale followed the then-existing statutory language applicable to
bond for criminal aliens.     Some similar test would seem to be
warranted for criminal aliens who were previously covered by the
Transition Rules, particularly if their eligibility for release
under the general bond provisions of section 236(a) stems, in part,
from the absence of a savings clause that continues the Transition
Rules for persons once subject to those rules.

  There is, moreover, a regulation that we deem applicable to this
situation, 

(c)(8) (1999), which provides, in
relevant part, as follows:


                                 14
                                             Interim Decision #3417




    Any officer authorized to issue a warrant of arrest may, in
    the officer’s discretion, release an alien not described in
    section 236(c)(1) of the Act, under the conditions at
    section 236(a)(2) and (3) of the Act; provided that the
    alien must demonstrate to the satisfaction of the officer
    that such release would not pose a danger to property or
    persons, and that the alien is likely to appear for any
    future proceeding.

An Immigration Judge is not authorized to issue a warrant of arrest.
Nevertheless, 

(a) incorporates substantive aspects of
the bond regulations governing the Service, and provides that
“[c]ustody and bond determinations made by the service [sic]
pursuant to 8 C.F.R. part 236 may be reviewed by an Immigration
Judge pursuant to 8 C.F.R. part 236.”

   At oral argument, the Service expressed the view that 

(c)(8) became inapplicable, along with all the provisions of
§ 236.1(c)(2) through (8), upon expiration of the Transition Rules.
The Service’s view was based on the first sentence of 

(c)(1)(ii), which provides that “[p]aragraph (c)(2) through
(c)(8) of this section shall govern custody determinations for
aliens subject to the TPCR while they remain in effect.”

  At first blush, the regulatory language would suggest that
paragraph (c)(8) died with the Transition Rules.       But 

(c)(1)(ii) does not actually say that paragraph (c)(8) loses
all force upon expiration of the Transition Rules.       Rather, it
simply states that it governs Transition Rule cases during the
existence of the Transition Rules.      It says nothing about how
paragraph (c)(8) is to apply if the alien in question is not subject
to the Transition Rules, either because those rules never applied to
the alien or because they have now expired.

  Importantly, the text of paragraph (c)(8) itself is not in any way
restricted to Transition Rule aliens. Indeed, the text suggests
just the opposite, as it applies to aliens “not described in section
236(c)(1) of the Act,” many of whom will simply be aliens described
in section 236(a), the general bond provision.       The regulatory
history confirms that paragraph (c)(8) was intended to have broader



                                15
Interim Decision #3417




application than merely being applicable during the existence of the
Transition Rules.

  The substance of paragraph (c)(8) was promulgated as 

(c)(2) at the time that regulations implementing the IIRIRA
were first adopted in 1997.     62 Fed. Reg. at 10,360; 

(c)(2) (1998).    That this was intended to be part of the
permanent regulations is suggested not only by the text of the
paragraph, but also by the commentary that accompanied its
promulgation. See 62 Fed. Reg. at 10,323 (“The Department intends
to issue a separate proposed rule in the near future establishing
both substantive limitations and procedural safeguards concerning
the release of criminal aliens eligible to be considered for release
under the Transition Rules.”).     Proposed and final rulemaking,
focusing principally on the Transition Period Custody Rules, did
follow. 

-87 (Sept. 15, 1997) (proposed rules);

-50 (May 18, 1998) (final rules). It was the
May 19, 1998, final rules that redesignated paragraph (c)(2) as
(c)(8), where it now appears. 63 Fed. Reg. at 27,449.

  It was also that May 19, 1998, regulatory package that added

(c)(1)(ii), providing that “[p]aragraph (c)(2)
through (c)(8) . . . shall govern custody determinations for aliens
subject to the TPCR while they remain in effect.” 63 Fed. Reg. at
27,449. The addition of this language, however, does not alter the
fact that the pertinent portion of paragraph (c)(8) was part of the
original rulemaking package to implement the permanent provisions of
the IIRIRA.

  From the outset, therefore, the regulations under the IIRIRA have
added as a requirement for ordinary bond determinations under
section 236(a) of the Act that the alien must demonstrate that
“release would not pose a danger to property or persons,” even
though section 236(a) does not explicitly contain such a
requirement.   This test is certainly akin to the “threat to the
community” test contained in Matter of Drysdale, supra, which the
parties agree should apply in the case of this respondent. We deem
the regulatory provision at 

(c)(8) (1999) to contain
the appropriate test, as it is binding on us and pertains directly
to removal proceedings under the IIRIRA.       Consequently, to be
eligible for bond, the respondent must demonstrate that his “release


                                16
                                            Interim Decision #3417




would not pose a danger to property or persons, and that [he] is
likely to appear for any future proceeding.” 

       VII.   RESPONDENT’S REQUEST FOR RELEASE FROM CUSTODY

  In a memorandum of decision dated April 21, 1998, the Immigration
Judge set forth the reasons for his March 10, 1998, order releasing
the respondent on his own recognizance.      The Immigration Judge
considered the respondent’s dangerousness and risk of flight. Those
same factors are relevant considerations in assessing the
respondent’s request for release from custody today under section
236(a) of the Act.

  The bond record reflects that the respondent was ordered deported
in 1983.    In 1984, the respondent filed a nonimmigrant visa
application while residing in Nigeria. Later that year, he entered
the United States as a nonimmigrant.        After overstaying his
authorized admission, the respondent married a United States
citizen. The respondent returned to Nigeria in 1985. In 1986, he
applied for an immigrant visa.         During the course of the
respondent’s interview, it was discovered that the respondent
obtained his 1984 nonimmigrant visa by willfully misrepresenting
material facts unrelated to his prior deportation.          He was
nevertheless granted a waiver. At that time, it had not yet been
discovered that the respondent was the same individual who had been
ordered deported in 1983, and the respondent did not seek or obtain
permission to reenter the United States after deportation.

  In 1990, after he had immigrated, the conditional basis of his
permanent resident status was removed. The respondent was later
divorced from his petitioning spouse.     In 1993, he married his
present spouse, a native of Nigeria. The respondent and his current
spouse have two United States citizen children. The respondent’s
current spouse has been granted asylum.

  On December 27, 1996, the respondent was convicted of the offense
of conspiracy to commit bank fraud. The bond record also indicates
that the respondent was convicted of making false statements to the
Service. The respondent previously alleged that both convictions



                                17
Interim Decision #3417




were on appeal, but does not now contest removability based on the
bank fraud conspiracy conviction.

  The Immigration Judge’s memorandum of decision contains little
analysis on the issue of the respondent’s danger to property or
persons. The Immigration Judge ruled that the respondent had the
burden of proof on this issue, but that the Service would be
required to rebut an otherwise satisfactory showing by the
respondent.     Nevertheless, the Immigration Judge immediately
proceeded to state that “[t]here is no showing that the respondent
is a danger to persons or property which would necessitate holding
the respondent in Service custody at this point.” This would appear
to place the burden on the Service to show that the respondent posed
such a danger, as the Immigration Judge recounted no evidence that
led him to conclude that the respondent had made a satisfactory
showing requiring rebuttal. The only additional point discussed by
the Immigration Judge involved an observation that the Service did
not consider the respondent’s bank fraud crime to be a “particularly
serious crime” that would bar withholding of removal.

  With respect to the risk of flight, the Immigration Judge merely
noted that he had granted the respondent withholding of removal,
reducing the likelihood that the respondent would fail to appear for
any future hearings.

  There is little to suggest that the respondent would pose a
physical danger to persons if released. His bank fraud conviction
and history of deceitful behavior, however, make the determination
whether he presents a danger to property a difficult one. In view
of his criminal record and history of other questionable or
deceitful behavior, we do consider him to present a risk of flight
should he lose his case on the merits.

  Evidently in an effort to overcome some of the deficiencies in the
record, the respondent asks that we consider the information
presented to the Immigration Judge during the underlying removal
proceeding in connection with this bond appeal.      The respondent
asserts that an Immigration Judge may base a custody determination
on any information that is available, which in this case included
the information presented during the removal hearing.        Custody
proceedings must be kept separate and apart from, and must form no


                                18
                                              Interim Decision #3417




part of, removal proceedings. See 

(d). Information
adduced during a removal hearing, however, may be considered during
a custody hearing so long as it is made part of the bond record.

  The parties and the Immigration Judge are responsible for creating
a full and complete record of the custody proceeding. In this case,
the Immigration Judge did reference his conclusion in the underlying
removal hearing. But a grant of withholding of removal by itself
would not prevent the Service from attempting to effect removal to
a third country, and the Immigration Judge’s discussion seems to
reflect an incomplete assessment of the risk of flight. Moreover,
we have no way of ascertaining exactly what evidence or other
aspects of the removal hearing may have been deemed pertinent.
Reliance on the removal record, even though it is also pending on
appeal, would require our speculation regarding what, if any,
information from this record may have played a part in the custody
determination. Thus, we will not consider the evidence presented
during the respondent’s removal proceedings, except to the extent
that it is already part of this bond record. In any bond case in
which the parties or the Immigration Judge rely on evidence from the
merits case, it is necessary that such evidence be introduced or
otherwise reflected in the bond record (such as through a summary of
merits hearing testimony that is reflected in the Immigration
Judge’s bond memorandum). Otherwise, it will not be part of the
bond record available for our review on appeal.

  As indicated earlier, we have significant concerns regarding the
respondent’s danger to property and his risk of flight.         The
Immigration Judge’s bond assessment is exceptionally sketchy as it
pertains to the evidence in this case.        In fairness to the
respondent, however, the Immigration Judge may well have relied on
undisclosed evidence from the merits hearing in making the bond
determination. Accordingly, we will vacate the Immigration Judge’s
March 10, 1998, bond order, but we will remand the record for
further proceedings to give the respondent an opportunity to make a
more complete record and to allow the Immigration Judge to better
explain the basis for his bond ruling, regardless of the outcome on
remand.


                         VIII.   CONCLUSION


                                 19
Interim Decision #3417




  Although he has been convicted of an aggravated felony, the
respondent is eligible for consideration for bond under the general
bond provisions of section 236(a)(1) of the Act because he was
released from his criminal custody on or before October 8, 1998.
Pursuant to 

(c)(8), the respondent must demonstrate
that his release would not pose a danger to property or persons, and
that he is likely to appear for any future proceedings.4 A remand
is appropriate because of the manner in which these tests were
applied below. In view of the length of time this bond appeal has
been pending, the Immigration Judge should hold the new bond hearing
promptly.


  ORDER: The appeal of the Immigration and Naturalization Service
is sustained.

  FURTHER ORDER: The Immigration Judge’s March 10, 1998, bond order
is vacated, and the record is remanded to the Immigration Court for
further proceedings consistent with this decision.



CONCURRING AND DISSENTING OPINION: Lory Diana Rosenberg, Board
Member

    I respectfully concur in part and dissent in part.

  I agree with the majority’s conclusion that the respondent is not
subject to mandatory detention under section 236(c) of the
Immigration and Nationality Act, 

(c) (Supp. II 1996),
because he was not released from criminal incarceration1 “after the


4  The “threat to national security” test, while still pertinent in
cases under section 236(a) of the Act, is not at issue here.

1   For clarity's sake, I refer to the time spent in a penal
institution pursuant to the incarceration portion of a criminal
sentence levied under state or federal criminal laws as
“incarceration” or “imprisonment,” and the time spent in a jail or
                                                         (continued...)

                                  20
                                             Interim Decision #3417




expiration of the 2-year period” during which the Transition Period
Custody Rules (“TPCR”) were in force. Matter of Adeniji, Interim
Decision 3417, at 8 (BIA 1999); see also Matter of Noble, 

 (BIA 1997) (criticizing the concurring and
dissenting opinion for its interpretation of the “released after”
effective date language in section 303(b)(2) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
Division C of 

 Stat. 3009-546, 3009-586
(“IIRIRA”), relating to section 236(c) of the Act). I also agree
that whether the respondent poses any danger to persons or property
is a relevant consideration in determining the terms of release from
detention by the Immigration and Naturalization Service under
section 236(a) of the Act. See Matter of Andrade, 

 (BIA 1987).    I part ways with the majority, however, with
respect to its analysis of the two principal statutory provisions at
issue, and with respect to its decision to remand this case to the
Immigration Judge.

  As I discussed in my concurring and dissenting opinion in Matter
of Noble, supra, our interpretation of the statutory phrases
“released after” in section 303(b)(2) of the IIRIRA and “when the
alien is released” in section 236(c) of the Act go hand in hand,
referring, as did earlier statutory language, to the detention of a
noncitizen by immigration authorities once he or she has completed
a period of imprisonment for a criminal conviction. Id. at 695-97
(Rosenberg, concurring and dissenting).     Moreover, while I agree
with the dissenting opinion of Chairman Schmidt that the Immigration
Judge’s decision to release the respondent was based on a proper
evaluation of the relevant bond factors and that “a remand is
pointless,” I find no reason in the “concerns expressed by the
majority,” to increase the amount of bond that must be posted to
secure the respondent’s release beyond the minimum of $1,500
required by the statute. Matter of Adeniji, supra, at 32 (Schmidt,
dissenting); see also section 236(a) of the Act.



(...continued)
detention facility pursuant to the Attorney General's civil
authority under the Immigration and Nationality Act to arrest and
detain aliens believed to be inadmissible or deportable as
“detention” or “custody.”

                                21
Interim Decision #3417




  I agree with Chairman Schmidt that it is time to decide the
respondent’s bond appeal—which has been pending for well over a
year—and to move on. Nevertheless, for jurisprudential reasons, I
am compelled to address portions of the majority opinion, which I
find to accede so grudgingly to the joint position asserted by the
parties and to give no more than a passing mention to the virtually
unanimous body of federal district court law rejecting our analysis
in Matter of Noble, supra. I also find the dissenting opinion of
Board Member Grant, which appears to challenge the result reached by
the majority and seems to suggest that we should look to some
abstract indicia of congressional intent apart from the plain
language, or a reasonable agency interpretation, of the statute, to
warrant discussion.


     I.   DETENTION OF THE RESPONDENT UNDER SECTION 303(b)(2)
            OF THE IIRIRA AND SECTION 236(c) OF THE ACT

  The Immigration Judge’s redetermination of the respondent’s
detention by the Service originally was subject to the Transition
Period Custody Rules enacted by Congress and activated by the
Attorney General under section 303(b)(3) of the IIRIRA. Applying
this then-controlling statutory authority, the Immigration Judge
ordered the respondent released on his own recognizance, because
“the Service admitted that the respondent’s criminal conviction was
not a ‘particularly serious crime,’” and because of the respondent’s
extensive family ties to the United States (including his wife, who
was granted asylum by the Service, and his two United States citizen
children).   On March 11, 1998, the Board granted the Service’s
motion for a stay of the Immigration Judge’s order resulting from
the bond redetermination, pending our adjudication of the Service’s
appeal from that order.

  While the Service’s appeal was pending, the applicable law changed.
The period during which the TPCR were allowed to substitute for the
detention provisions enacted as section 236(c) of the Act expired.
According to the specific language of section 303(b)(2) of the
IIRIRA, Congress provided that section 236(c) of the Act “shall
apply to individuals released after [the expiration of the TPCR on
October 9, 1998].”    Section 236(c) of the Act provides that the
Attorney General shall take into custody any alien who has committed


                                 22
                                              Interim Decision #3417




or been convicted of certain enumerated crimes “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.”

  It is undisputed that the respondent was released from criminal
incarceration well before October 9, 1998. Owing to the passage of
time, the TPCR have expired and our determination of the Service’s
appeal of the Immigration Judge’s bond order is governed by section
236(c) of the Act. The questions before us are whether the terms of
section 236(c) mandate that the respondent remain detained, and if
not, under what standard he may be released from custody.

     A.   Plain Language: “Released After” and “When the Alien
                            Is Released”

  A statute’s legislative purpose is expressed by its plain language.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

 (1984); INS v. Phinpathya, 

(1984); United States v. American Trucking Ass’ns, 

(1940) (ruling that “[t]here is, of course, no more persuasive
evidence of the purpose of a statute than the words by which the
legislature undertook to give expression to its wishes”). We too
recognize that “it is assumed that the legislative purpose is
expressed by the ordinary meaning of the words . . . [and that]
[t]he language of the statute must ordinarily be regarded as
conclusive . . . .” Matter of Noble, supra, at 677 (citing INS v.
Cardoza-Fonseca, 

 (1987)); see also Matter of M/V
Signeborg, 

 (BIA 1960) (holding that “the language
of the law cannot be enlarged beyond the ordinary meaning of its
terms”).

  Notably, in Matter of Noble, supra, at 678, the Board ruled that
“[o]ur reading [of the transition rule statute] comports with a
‘plain meaning’ statutory construction and is wholly consistent with
congressional intent.” See also id. at 694 (Rosenberg, concurring
and dissenting) (agreeing that the language is plain, but
challenging the majority’s interpretation of the language in the
TPCR and section 236(c) of the Act as not comporting with the plain
meaning of the terms in the statute). Given that we unanimously
determined the language of the TPCR to be plain in Noble, I cannot


                                 23
Interim Decision #3417




now agree with the majority’s assertion that the “last sentence of
section 303(b)(2) . . . is [not] free from uncertainty.” Matter of
Adeniji, supra, at 9.

  First, the provisions that we are addressing here are, in effect,
effective date provisions.      See, e.g., Rivera v. Demore, No.
C-99-3042 THE, 

, at *5 (N.D. Cal. July 13, 1999)
(citing Landgraf v. USI Film Products, 

 (1994));
Grant v. Zemski, 

 (E.D. Pa. 1999); Velasquez
v. Reno, 

, 671 n.8 (D.N.J. 1999); see also
Matter of Noble, supra, at 689-92, 694-95 (Rosenberg, concurring and
dissenting); Matter of Valdez, 

 (BIA 1997)
(Rosenberg, dissenting) (noting that over 10 federal courts had
found, contrary to the thesis advanced by the majority, that
applying the amended rules to an alien previously released from
incarceration not only offended constitutional considerations, but
resulted in an impermissibly retroactive application of the TPCR).
Section 303(b)(2) of the IIRIRA states that “[a]fter the end of such
1-year or 2-year periods [during which the TPCR are effective], the
provisions of such section 236(c) shall apply to individuals
released after such periods.”      (Emphasis added.)   The operative
words, “released after such period,” clearly refer to the period
after the expiration of the TPCR. The temporal limitations in the
statute attached to the use of the word “released” make clear that
the release contemplated by Congress to trigger mandatory custody
under section 236(c) of the Act is prospective; it may only occur
after October 8, 1998, the date on which the provisions of the TPCR
expire.

  Second, while the majority concedes that “the natural sense of the
words” in section 303(b)(2) of the IIRIRA supports the construction
proposed by the parties, the majority inexplicably persists in
questioning the use of those words on the basis that “the term
‘released’ is not expressly tied to any other language [that would
clarify whether Congress was referring to a release from criminal
custody or from Service custody].” Matter of Adeniji, supra, at 9.
To the contrary, the context in which this language appears supports
the conclusion that the plain meaning of the words refers to release
from criminal incarceration rather than release from Service
custody.   See K Mart Corp. v. Cartier Inc., 

(1988); see also Rivera v. Demore, supra, at *5; Velasquez v. Reno,


                                24
                                             Interim Decision #3417




supra, at 670; Pastor Camarena v. Smith, 

(W.D. Wash. 1997).     In particular, Congress’ use of the term
“released” in section 236(c) further illuminates its use of the term
“released” in section 303(b)(2) of the IIRIRA, the provision at
issue here.    See Matter of Noble, supra, at 695-97 (Rosenberg,
concurring and dissenting).

  The specific terms of section 236(c) of the Act expressly go on to
broadly construe “when the alien is released” to encompass releases
on “parole, supervised release, or probation, and without regard to
. . . arrest or imprison[ment] again for the same offense.” Section
236(c)(1) of the Act. These types of “release” involve restrictions
that exclusively relate to individuals in the criminal justice
system who have completed a period normally following actual
criminal incarceration. See Cuomo v. Barr, 

 (2d Cir.
1993) (finding that although “the term ‘release’ is not defined
except as to include ‘parole,’ ‘supervised release,’ and
‘probation,’ . . . [t]he term ‘supervised release’ . . . replaced
the ‘special parole’ which was ‘“a period of supervision served upon
completion of a prison term.”’ Gozlon-Peretz v. United States, 

 (1991) (quoting Bifulco v. United States, 

 (1980))” (citations omitted)). What Congress is indicating
by using this limiting language is that a noncitizen is subject to
detention by the Service once his period of incarceration ends and
he is released from actual imprisonment, notwithstanding that he
still may be satisfying the terms of a sentence imposed by a
criminal court.

  By contrast, nothing in the Act authorizes such parole, supervised
release, probation, or subsequent arrest or imprisonment as a civil
penalty related to charges of removability. Thus, the clause in
section 236(c) of the Act referring to an alien who is “released”
clarifies that Congress intended the term “released” to refer to
release from criminal incarceration. It follows that in enacting
the TPCR section in the IIRIRA, Congress intended that noncitizens
released from criminal incarceration while the TPCR were in force
would be taken into custody by the Service and detained subject to
the terms of the TPCR, and that those who were released from
criminal incarceration after the TPCR expired would be subject to
being taken into custody by the Service according to the mandatory
detention provisions set forth in section 236(c) of the Act.


                                25
Interim Decision #3417




  I find mind boggling the majority’s unwillingness to accept the
statutory references to an alien who is taken into custody by the
Attorney General “when released [from criminal incarceration]” under
section 236(c) of the Act, and an alien who is “released [from
criminal incarceration custody] after” the end of the TPCR period,
to whom section 236(c) then would become applicable, as referring to
the same type of “release.”     See Matter of Adeniji, supra, at 8
(emphasis added); Matter of Noble, supra, at 679-80. We have every
reason to presume that Congress intended the same term, “released,”
to be understood similarly in each provision, as “[i]t is axiomatic
that ‘identical words used in different parts of the same act are
intended to have the same meaning.’”       Sale v. Haitian Centers
Council, Inc., 

, 203 n.12 (1993) (quoting Atlantic
Cleaners & Dyers, Inc. v. United States, 

 (1932)).

  In his dissenting opinion, Board Member Grant charges that the
majority makes the one choice that he believes to be manifestly
contrary to the clear intent of Congress, to require detention of
criminal aliens such as the respondent. Board Member Grant contends
that even the majority views its decision as militating “against the
clear design of the statute: to constrain or even eliminate the
capacity of aliens who have committed crimes to remain at liberty.”
Matter of Adeniji, supra, at 34 (Grant, dissenting). He finds this
position inexplicable because he concludes that “[h]ere, there is no
reasonable ground to disagree that, from the enactment of the AEDPA
forward, Congress intended that mandatory detention of criminal
aliens be a new and fundamental directive in immigration policy.”
Id. at 35.

  However, we are neither legislators nor mind readers, but
adjudicators.   The Board has emphasized that in the absence of
“clearly expressed legislative intention, . . . inferences . . . are
insufficient to override the literal language of the statute . . . .
[W]e are not at liberty to rewrite the literal language . . . [and]
any changes to the express language must be left to Congress.”
Matter of Noble, supra, at 685-86. Nowhere in Board Member Grant’s
dissent does he attempt to account for the plain language that
Congress used in the statute, or to rationalize his concerns as
being consistent either with applicable principles of statutory
construction or with the considerable federal court authority,
discussed below, to the contrary.


                                26
                                             Interim Decision #3417




  With all due respect, Board Member Grant has it backwards: we
discern congressional intent from the explicit language Congress
uses in the statute. We do not imbue the statutory language with
whatever meaning we feel certain that Congress intended.          In
discerning the intent of Congress, “[o]ur compass is not to read a
statute to reach what we perceive—or even what we think a reasonable
person should perceive—is a ‘sensible result.’” Bifulco v. United
States, 

 (1980) (Burger, C.J., concurring)
(“The temptation to exceed our limited judicial role . . . takes us
on a slippery slope. Our duty . . . [is to] apply the law and hope
that justice is done.” (citing The Spirit of Liberty: Papers and
addresses of Learned Hand 306-07 (Dilliard ed. 1960))).

  Finally, employing a literal interpretation of section 303(b)(2)
of the IIRIRA in concluding that section 236(a) controls the bond
redeterminations of aliens who are not subject to section 236(c) of
the Act does not yield absurd or anomalous results. See Chapman v.
United States, 

 (1991) (ruling that “[a]
straightforward reading of [the federal statute] does not produce a
result ‘so “absurd or glaringly unjust,”’ United States v. Rodgers,

 (1984)” (citation omitted)); see also Matter of
Fuentes-Campos, 

 (BIA 1997). As discussed below,
custody determinations made under such a standard may include
consideration of dangerousness. Furthermore, as the Supreme Court
concluded in Bifulco v. United States, supra, at 400-01:

    If our construction . . . clashes with present legislative
    expectations, there is a simple remedy—the insertion of a
    brief appropriate phrase, by amendment, into the present
    language . . . . But it is for Congress, and not this
    Court, to enact the words that will produce the result the
    Government seeks in this case.

             B.   Federal Court Review of the Statute

  Virtually every federal court that has addressed the issue has
ruled that section 236(c) of the Act applies only to aliens
“released” from criminal incarceration on October 9, 1998, and has
found the statutory language to be plain, not “uncertain.”     Cf.
Matter of Adeniji, supra, at 12. Similarly, each of these federal



                                27
Interim Decision #3417




courts has understood the “release” in question to be release from
criminal incarceration.

  In so ruling, each of these federal courts has considered the issue
of whether section 236(c) of the Act applies to persons released
from criminal incarceration prior to October 9, 1998, and has struck
down the interpretation of the term “released” suggested by our
decision in Matter of Noble, supra, and adopted by the Service under
the current regulations. See, e.g., Miranda-Arteaga v. Reno, No.
CV-99-0949 (M.D. Pa. July 1, 1999); Velasquez v. 

 Abdel-
Fattah v. Reno, No. 99-CV-0947 (M.D. Pa. June 28, 1999); Grant v.

 Aguilar v. Lewis, 

 (E.D. Va. 1999);
Alvarado-Ochoa v. Reno, No. 99-0470-IEG (AJB) (S.D. Cal. May 28,
1999); Baltazar v. Fasano, No. 99-CV-380 BTM (S.D. Cal. Mar. 25,
1999); Reyes-Rodriguez v. Fasano, No. 99-CV-0023 (S.D. Cal. Feb. 26,
1999); Alves-Curras v. Fasano, No. 98-CV-2295 (S.D. Cal. Feb. 22,
1999); Alwaday v. Beebe, 

 (D. Ore. 1999).

  These cases all hold that the plain language “released” in both
section 236(c) of the Act and section 303(b)(2) of the IIRIRA makes
clear that only aliens who are released from criminal incarceration
on or after October 9, 1998, are subject to mandatory detention.
Specifically, “IIRIRA § 303(b)(2) clearly sets forth the express
command of Congress that the permanent mandatory detention
provisions are to be applied to aliens who were released after the
transitional rules expired.”    Velasquez v. 

(emphasis added). As the district court in Miranda-Arteaga v. 

 the district wherein the respondent’s case arises, stated
succinctly,

    Section 236(c) states that “[t]he Attorney General shall
    take into custody any alien who . . . is deportable by
    reason of having committed [a deportable offense] . . .
    when the alien is released . . .”      

(c).
    Congress further provided that section 236(c) “shall apply
    to individuals released after [the expiration of the
    transitional rules].”    Illegal Immigration Reform and
    Immigrant   Responsibility   Act    of    1996  (“IIRIRA”)
    § 303(b)(2); Velasquez v. Reno, 37 F. Supp.2d. at 671-73;
    Alwaday v. Beebe, 

 (D. Or., Jan. 29, 1999).
    IIRIRA § 303(b)(2) clearly sets forth the express command


                                 28
                                             Interim Decision #3417




    of Congress that the permanent mandatory detention
    provisions are to be applied to aliens who were released
    after the transitional rules expired.    Velasquez, 37 F.
    Supp.2d. 671 (emphasis in original).        The mandatory
    detention rule of § 236(c) thus does not apply to aliens
    released before the expiration of the Transition Period
    Custody Rules on October 9, 1998. Two district courts in
    this Circuit have reached the same conclusion on factual
    circumstances   very  similar   to   the  recent   action.
    

    I find their reasoning
    compelling and for the sake of expedition, adopt their
    analysis.

Id. at 6.

  These courts have universally rejected the majority’s reading of
the statutory language of the TPCR, which was set forth in Matter of
Noble, supra, as a “deviation from the plain language of section
303(b)(3)(A).” See Rivera v. Demore, supra, at *5 (remarking on the
Board’s dismissal of the phrase “when the alien is released” as
having no purpose other than serving as a modifier to alert the
Attorney General when to take an alien into custody as “[t]his
curious interpretation”).    In addition, at least one court has
rejected as “unconvincing” the Board’s original interpretation of
the term “released,” which was based on its “disbelief that Congress
meant to narrow the class of criminal aliens subject to mandatory
detention.” Id.

                 C.   Constitutional Considerations

  Notably, no court that has addressed the propriety of a
petitioner’s detention on the merits under these rules as they were
previously interpreted has upheld a determination that the mandatory
detention of the petitioner without access to a hearing before an
impartial adjudicator is warranted. In part, this is due to the
fact that the significant liberty interests implicated in the
context of the current detention provisions militate in favor of the
most restrictive interpretation of the statute that is permissible.
See generally United States v. Himler, 

 (3d Cir.
1986) (interpreting language narrowly where 1984 Bail Reform Act
marked a “radical departure” from former federal bail policy).


                                 29
Interim Decision #3417




  The encroachment on the liberty interests of an alien deemed to be
subject to mandatory detention raises questions of constitutional
magnitude concerning the reach of the TPCR and section 236(c) of the
Act. See Cabreja-Rojas v. Reno, 

 (S.D.N.Y.
1998); St. John v. McElroy, 

 (S.D.N.Y. 1996)
(finding the interest in freedom from confinement to be “of the
highest constitutional import”).      As I noted in my dissenting
opinion in Matter of Valdez, supra, at 718 (Rosenberg, dissenting),
the canons of statutory construction militate in favor of a
restrictive interpretation of a statutory provision “if a broader
meaning would generate constitutional doubts.”      See also United
States v. Witkovich, 

 (1957); Lyng v. Northwest
Indian Cemetery Protective Ass’n, 

 (1988).

  While the Board may not decide the constitutionality of a statute,
we do have the duty to render our decisions in a manner that will
avoid constitutional questions. Matter of Cenatice, 

(BIA 1977). Certainly, it is beyond dispute that constructions that
cast doubt on a statute's constitutionality should be avoided.
Public Citizen v. Department of Justice, 

(1989); cf. Matter of Joseph, Interim Decision 3387 (BIA 1999)
(contending that the Justice Department’s regulations took into
account a detained alien’s “constitutional and liberty interests”).
Taken together, the statutory issues and the constitutional
questions that follow close behind warrant rejecting the objections
voiced by Board Member Grant and adhering to the result reached by
the majority.

  The overwhelming majority of district courts that have considered
mandatory immigration detention statutes, prior to this most recent
enactment, have found them unconstitutional. See, e.g., Kellman v.
District Director, United States INS, supra; Paxton v. United States
INS, 

 (E.D. Mich. 1990), aff'd on other grounds,

 (6th Cir. 1992); Agunobi v. Thornburgh, 

 (N.D. Ill. 1990); Leader v. Blackman, 

 (S.D.N.Y.
1990).   In particular, such statutes were found to violate the
constitutional guarantees of substantive and procedural due process,
and the prohibition against excessive bail. See, e.g., St. John v.

 (finding mandatory detention of lawful permanent
residents under former section 236(e) of the Act unconstitutional).



                                30
                                             Interim Decision #3417




The principles upheld in these cases apply with equal force to the
issue now before us.


    II. FACTORS WARRANTING CHANGE IN CONDITIONS OF DETENTION
                 AND RELEASE ON IMMIGRATION BOND

  Custody redetermination for aliens released from criminal
incarceration prior to the expiration date of the TPCR (after which
time section 236(c) of the Act governs), still are subject to
discretionary standards.    Looking to section 303(b)(3)(B) of the
IIRIRA, a criminal alien who was eligible for release under the TPCR
had to demonstrate that he would not pose a danger to the safety of
others if released and that he would be likely to appear in court.
Furthermore, he either had to have been lawfully admitted to the
United States or, if not, his country of removal had to be unwilling
to accept him. Therefore, nonviolent criminal aliens could obtain
a bond, whereas dangerous criminals could be held in detention.

  As I read the majority opinion, the Board now requires a respondent
who has been convicted of a criminal offense or other prohibited
activity contrary to national security interests, but who is not
subject to mandatory detention, to establish that he or she does not
pose a danger to persons or property and is not likely to abscond.
These    factors   are   those   that   controlled    under   section
303(b)(3)(B)(i) of the IIRIRA.          Similarly, former section
242(a)(2)(B) of the Act, 

(a)(2)(B) (1994), provided
that the Attorney General may not release an alien convicted of an
aggravated felony unless the alien demonstrates that he or she has
been lawfully admitted to the United States, does not present a
threat to the community, and is likely to appear for any scheduled
hearing. See Matter of Ellis, 

 (BIA 1993).

  Thus, I find a fairly clear declaration by the majority that the
standard to be imposed is the one articulated under the TPCR and our
precedents interpreting the immediately preceding versions of the
detention statute authorizing immigration detention in which the
respondent bears the burden of proof. Matter of Ellis, supra. That
said, however, I do not find it necessary to conclude that 

(c)(8) (1999) controls our adjudication of the terms of the
respondent’s bond under section 236(a) of the Act. Cf. Matter of


                                 31
Interim Decision #3417




Drysdale, 

 (BIA 1994).   Nor do I agree that
section 236(a) of the Act or 

(c)(8) creates a
presumption of dangerousness.

  Moreover, I cannot agree with the spectre raised by Board Member
Grant that “that class of aliens ‘released’ during the Transition
Period defined in section 303(b)(2) of the IIRIRA (and, perhaps, for
that class released before the Transition Period, the class at issue
in Noble), . . . can have their custody status determined under the
most minimal standard now existing in the statute.”       Matter of
Adeniji, supra, at 34 (Grant, dissenting). There is nothing in the
majority opinion that relieves a convicted alien who has been
released from criminal incarceration before the effective date of
section 236(c) (occurring upon the expiration of the TPCR) from
demonstrating that he or she is not a danger to persons or property
and will not abscond.

  Specifically, as I documented in Matter of Noble, supra, we have
been perfectly capable of ordering criminal aliens who pose a threat
to our communities to be held in or returned to Service detention,
or to be released only under a significant bond. For example, in
Matter of Shaw, 

 (BIA 1976), decided 20 years ago, we
cited the complete lack of information regarding community ties,
coupled with an undocumented entry and pending criminal possession
of firearms charges, as warranting dismissal of an appeal of a
$10,000 bond. In Matter of Andrade, supra, decided in 1987, we
recognized that despite a record of long residence and family ties
for much of the 12-year period prior to his arrest by the Service,
the respondent had been involved in criminal activity involving
attempted robbery and other theft of property, and we imposed a
$10,000 bond. More recently, in Matter of Kalifah, 

(BIA 1995), where no conviction or incarceration of any sort was
involved, we readily invoked the flight risk factor under section
242(a)(1) of the Act to agree with the Immigration Judge in
concluding that an alien, who was charged with a serious crime
involving terrorism abroad, was best held without any bond at all.

  I also disagree with the position taken by the majority that we may
not consider portions of the record made before the Immigration
Judge in a hearing on the merits that already has been resolved in



                                 32
                                              Interim Decision #3417




the respondent’s favor, for purposes of resolving bond issues in the
case of an alien whom the Service continues to hold in detention.

  The language of the regulation, which instructs that bond
redetermination hearings shall be held separate and apart from the
removal hearing, makes it plain that evidence considered by an
Immigration Judge during a removal hearing may be considered in
redetermining bond, notwithstanding the rule that evidence presented
at a bond hearing cannot be used to establish removability. The
regulation at 

(d) provides as follows:

    Consideration by the Immigration Judge of an application or
    request of a respondent regarding custody or bond under
    this section shall be separate and apart from, and shall
    form no part of, any deportation or removal hearing or
    proceeding. The determination of the Immigration Judge as
    to custody status or bond may be based upon any information
    that is available to the Immigration Judge or that is
    presented to him or her by the alien or the Service.

  It is clear from this language that evidence presented in a removal
hearing may be considered for purposes of bond redetermination. The
underlying purpose of the regulation is not to limit the information
an Immigration Judge may consider in redetermining bond, but to
ensure that evidence presented in the far more informal bond hearing
does not taint the ultimate adjudication of the charges of
removability, in which the Service often carries the burden of
proof. Matter of Chirinos, 

 (BIA 1977) (holding that
absent a showing of prejudice to the alien, a bond decision
resulting from a joint bond redetermination and deportation hearing
will not be reversed).

  Certainly, what transpires and is decided during a removal hearing
may have a major impact on the alien’s eligibility for bond. See,
e.g., Matter of Joseph, Interim Decision 3398 (BIA 1999); Matter of
Joseph, Interim Decision 3387. In the instant case, consideration
of the Immigration Judge’s determination in the removal hearing is
to the respondent’s advantage, and there would be no prejudice to
the respondent if the Board were to review the removal and bond
records simultaneously in the course of considering the instant
appeal. Although the Board ordinarily does not consider evidence


                                 33
Interim Decision #3417




offered on appeal, see Matter of Soriano, 

 (BIA
1988); Matter of Obaigbena, 

 (BIA 1988), the Board
has issued its decisions after taking administrative notice of facts
upon appeal. Matter of H-M-, 

 (BIA 1993) (affirming
the Board’s authority to take administrative notice).

  Furthermore, based on the record now before us, we know that after
a hearing on the respondent’s application for withholding of
removal, the Immigration Judge granted that application and
thereafter redetermined that the respondent should be released on
his own recognizance. Even if we do not look to the record of the
merits hearing or consider the Immigration Judge’s decision granting
the respondent withholding of removal, as the respondent requests,
the undisputed fact that the Immigration Judge granted withholding
establishes that the Immigration Judge did not find the respondent
to be convicted of a “particularly serious crime.”

  Consequently, I would grant relief on the same basis that the
Immigration Judge ordered the respondent’s release on his own
recognizance.    Unlike Chairman Schmidt, I see no basis in the
majority opinion that warrants altering the bond order originally
entered by the Immigration Judge and no reason to alter the decision
of the Immigration Judge other than to render an order in conformity
with the statute as it currently exists.      Therefore, I favor an
order finding the respondent eligible for release and setting his
bond at the minimum required by statute.



DISSENTING OPINION: Paul W. Schmidt, Chairman; in which Fred W.
Vacca, Gustavo D. Villageliu, and John Guendelsberger, Board
Members, joined

  I respectfully dissent. We should decide this case and release the
respondent on bond.

  I agree with the majority that the respondent is not subject to
mandatory detention.    I also agree that, to be released, the
respondent must show that he will appear when required to do so and
will not present a danger to persons or property.



                                34
                                              Interim Decision #3417




  Applying that standard to the respondent’s situation, I agree with
the Immigration Judge that the respondent should be released.
Unlike the Immigration Judge, however, I would impose a bond of
$3,000.

  I disagree with the majority’s decision to remand for four reasons.
First, the Immigration Judge applied the proper legal standard. In
concluding that release was warranted, he properly evaluated the
following relevant factors.

  He pointed out that the respondent had been granted withholding of
removal, thus giving him a reasonable expectation of success on the
merits and reducing the incentive to abscond. He noted the absence
of any suggestion in the record that the respondent is, or ever has
been, a physical danger to persons.        He also noted that the
particular aggravated felony of which the respondent was convicted,
bank fraud, does not qualify as a “particularly serious crime” for
withholding of removal purposes.     That determination necessarily
includes a balancing of various factors relating to the level of
danger to society, including the danger to property. See, e.g.,
Matter of S-S-, Interim Decision 3374 (BIA 1999). He further noted
that the Immigration and Naturalization Service, the party with
every incentive to do so, had not asserted that the respondent’s
crime was “particularly serious.”

  Second, the uncontested information available to us on appeal
supports the Immigration Judge’s decision to release.           The
respondent is married to an individual who has herself been granted
asylum in the United States, and he is the father of two United
States citizen children.    These significant ties to the United
States give the respondent additional reasons to comply with the
terms of release and to refrain from fraudulent or criminal conduct
while his immigration case is pending.

   Third, at this point, the duration of the respondent’s release on
our order will be so brief that fraudulent harm to property is
highly unlikely before his case is resolved. We have the merits of
the respondent’s withholding of removal case before us. Assuming
that we act promptly, one of two things will occur shortly. If we
dismiss the Service’s appeal, the respondent will be granted the
relief of withholding of removal and his ultimate, long-term release


                                 35
Interim Decision #3417




from custody is highly likely. If we sustain the Service’s appeal,
the respondent’s circumstances will thereby change and his custody
status could be reexamined by the appropriate authorities at that
time.

  Fourth, and finally, a remand is pointless. The Immigration Judge
has already ordered the respondent released under the standard we
are adopting and, as recently as July 26, 1999, he declined to alter
that decision. We can reasonably anticipate that the same result
will occur on remand.     Assuming that the Immigration Judge once
again orders release, the Service undoubtedly will appeal and the
case will be returned to us. We should resolve it now, rather than
later.

  This remand is wrong. This appeal has been pending before us for
more than a year, and it should be decided now. I would affirm the
Immigration Judge’s decision to release the respondent. However, in
light of some of the concerns expressed by the majority, I would
impose a bond in the amount of $3,000.

  Therefore, I respectfully dissent from the decision to remand this
case.



DISSENTING OPINION: Edward R. Grant, Board Member, in which Anthony
C. Moscato, Board Member, joined

 I respectfully dissent.

  The majority opinion capably presents the options that face this
Board in determining what standard ought to be applied in deciding
whether the respondent shall be subject to custody by the
Immigration and Naturalization Service or released on bond. These
options are to apply:

    (1) the permanent detention provisions of section 236(c) of
    the Immigration and Nationality Act, 

(c)
    (Supp. II 1996), as enacted by section 303(a) of the
    Illegal Immigration Reform and Immigrant Responsibility Act



                                36
                                             Interim Decision #3417




    of 1996, Division C of 

 Stat. 3009-
    546, 3009-585 (“IIRIRA”);

    (2) the Transition Period Custody Rules, as enacted by
    section 303(b)(3) of the IIRIRA, 110 Stat. at 3009-586; or

    (3) the general “arrest, detention, and release” provisions
    of section 236(a) of the Act, also enacted by section
    303(a) of the IIRIRA.

The majority has selected the third option, which allows the release
on bond of an alien pending deportation proceedings, but with no
specific mandate to detain if the alien is a criminal. In so doing,
the majority makes the one choice that is manifestly contrary to the
clear intent of Congress, expressed in the major immigration
legislation of 1996, to require detention of criminal aliens such as
the respondent.

  Prior to 1996, subparagraph (A) of former section 242(a)(2) of the
Act, 

(a)(2) (1994), mandated the detention only of an
alien convicted of an aggravated felony, and subparagraph (B)
prohibited release of such an alien unless the alien demonstrated
that he or she was not a threat to the community and was likely to
appear at future hearings.

  The Antiterrorism and Effective Death Penalty Act of 1996, 

 Stat. 1214 (“AEDPA”), significantly expanded the
scope of the requirement to detain criminal aliens, while at the
same time limiting the ability of this larger category of criminal
aliens to be released.    First, section 440(c) of the AEDPA, 110
Stat. at 1277, amended section 242(a)(2) of the Act to mandate
detention of aliens convicted under a wide range of offenses listed
as grounds for deportation under former section 241(a)(2) of the
Act, 

(a)(2) (1994).      Second, section 435 of the
AEDPA, 110 Stat. at 1274-75, expanded the deportation grounds under
section 241(a)(2)(A)(i)(II) of the Act (crimes involving moral
turpitude), and section 440(e) of the AEDPA, 110 Stat. at 1277,
expanded the definition of aggravated felony, both having the effect
of increasing the numbers of criminal aliens subject to mandatory
detention. Finally, Congress repealed subparagraph (B) of section



                                37
Interim Decision #3417




242(a)(2) of the Act, thus terminating the ability of aliens under
the detention mandate to obtain release.

  Congress did not significantly retreat from this position in the
IIRIRA. In fact, by extending the definitional and temporal scope
of the term “aggravated felony,” Congress further expanded the ranks
of criminal aliens who would be subject to mandatory detention.
Congress did, however, temporarily ameliorate the “no-release”
policy of the AEDPA by enacting the Transition Period Custody Rules
(“TPCR”). As the Board recognized in Matter of Noble, 

 (BIA 1997), Congress included the TPCR in the IIRIRA to
allow time for this new detention mandate to be fully implemented.
The impact of our ruling today is the opposite: for that class of
aliens “released” during the Transition Period defined in section
303(b)(2) of the IIRIRA (and, perhaps, for that class released
before the Transition Period, the class at issue in Noble), the end
of the Transition Period means that they can have their custody
status determined under the most minimal standard now existing in
the statute—even if, as the majority concedes, they would have been
ineligible for release under the TPCR. Rather than leading to full
implementation of the detention mandate, the Board’s interpretation
allows criminal aliens released during the Transition Period to
revert back, after its expiration, to a more favorable position, and
to avoid any scheme of mandatory detention, even the modified one in
place under the TPCR.

  At the core of the majority’s evident conundrum in resolving the
standard under which bond and custody matters will be decided for
those released during the TPCR are two provisions, one present in
the IIRIRA as enacted and the other one absent from it. The first
is the last sentence of section 303(b)(2) of the IIRIRA, which
states that the mandatory detention scheme set forth at section
236(c) of the Act will apply only to those released after the end of
the TPCR. The second, and absent, provision is a “savings” clause
for the TPCR. In considering these factors, the majority reasons
that, because Congress included no savings clause for the TPCR (thus
causing its complete termination on October 8, 1999), and because
those released during the TPCR cannot be subject to mandatory
detention owing to the last sentence of section 303(b)(2), the only
standard available for consideration of bond/custody matters
relating to criminal aliens released during the TPCR is section


                                38
                                             Interim Decision #3417




236(a), the general provision of the Act governing such matters for
all aliens in proceedings, criminal and noncriminal alike.

  Thus, the majority concludes that the presence of the last sentence
of section 303(b)(2), coupled with the absence of a saving clause,
compels a result that even it admits militates against the clear
design of the statute: to constrain or even eliminate the capacity
of aliens who have committed crimes to remain at liberty. It is
true that the TPCR contain no explicit savings clause. Congress did
not include one, in all likelihood, because it expected that upon
the termination of the TPCR, the mandatory detention scheme of
section 236(c) would come into effect. The last sentence of section
303(b)(2), which appears to preclude the application of the
mandatory detention scheme to those released during the TPCR, is
sufficient to serve as an implicit savings clause for those who had
already been subject to the TPCR.        It states that only those
released after such periods would be subject to detention under
section 236(c). The words “such periods” refer to the 1- or 2-year
TPCR periods provided in the statute. The clear inference to be
drawn from that sentence is that those released during the TPCR
would remain subject to the terms of the rules during the pendency
of their proceedings.

  Had Congress intended this group to be adjudicated under section
236(a), it would presumably have said so, given the profound shift
from a policy of mandatory detention that this would have entailed.
In the absence of such clear direction, our only reasonable choice
is to infer from both the overall purpose of the statute and the
words of section 303(b)(2) that Congress intended this class of
aliens to have their bond and custody status determined under the
TPCR, and not under the standard bond/custody provision available to
noncriminal aliens in proceedings.

  Our ruling today could have far-reaching impact.     Potentially,
thousands of criminal aliens who were released from federal or state
custody before or during the Transition Period could see their
prospects for release from Service custody improve. As can be seen
in the split decision issued here, it is uncertain to what extent
the application of 

(c)(8) (1999) will result in
release of such aliens. However, it is likely that one of the key
purposes of Congress in mandating detention—that criminal aliens do


                                 39
Interim Decision #3417




not abscond and actually are removed from the United States if they
are found deportable—will be undermined.      As Congress noted in
enacting the AEDPA and the IIRIRA, the standard of “low flight risk”
incorporated in immigration bond determinations has proved to be a
weak assurance that aliens will actually show up for their hearings.

  Our responsibility to interpret ambiguous statutory terms does not
arise in a vacuum. The plenary authority to regulate immigration
vested in the Congress by the Constitution has been delegated for
purposes of implementation to the Attorney General, who has in turn
delegated the adjudicatory portion of that authority to us and to
the Immigration Judges. Thus, our responsibility to give precise
meaning to legislative terms must always be at the service of
implementing the will and intent of Congress. Here, there is no
reasonable ground to disagree that, from the enactment of the AEDPA
forward, Congress intended that mandatory detention of criminal
aliens be a new and fundamental directive in immigration policy.
The majority appears to acknowledge that clear intent, yet, for
reasons that I find inexplicable, refuses to implement it.

  I fear that this exercise of statutory deconstruction will ill-
serve the Board and frustrate the very purposes for which the
parties have advanced it. The mandatory detention provisions of the
AEDPA and the IIRIRA are controversial and have imposed burdens on
criminal aliens and their families, as well as on the resources of
the Service. We must assume, however, that these are burdens that
Congress felt ought to be imposed because of the risks inherent in
previous, more generous policies of release. It is for Congress,
not the Service, and not the Board, to alleviate those burdens. The
risk of today’s decision is that Congress’s first priority in
revisiting the issue of criminal alien detention may be to address
the “gap” that we have needlessly created in our decision today.




                                40