An interpretation of section 236(c) that would exempt certain criminal aliens from mandatory detention simply because they were not taken into custody quickly enough would “run[] counter to this congressional intent.” Gomez, 2011 WL 2224768, at *3; see also Matter of Noble, 21 I. & N. Dec. at 681 (it would be incongruous to construe IIRIRA’s stricter mandatory detention rules “in a way that permits the release of a subgroup of criminal aliens (based on the wholly fortuitous date of release from incarceration) under a more lenient standard”). Moreover, retaining authority to detain such aliens as a matter of discretion under section 236(a) does not resolve this concern; ICE always had discretion to detain criminal aliens or release them on bond, but Congress enacted section 236(c) precisely because aliens released on bond continued to abscond and reoffend despite that screening mechanism.

The BIA reviewed the language in both the TPCR and 8 U.S.C. § 1226(c), and in both cases concluded that the Government’s authority to detain criminal aliens did not depend on how soon they were taken into custody. See Matter of Noble, 21 I. & N. Dec. 672, 677-81 (BIA 1997) (construing TPCR); Matter of Rojas, 23 I. & N. Dec. at 121-26 (construing 8 U.S.C. § 1226(c)). In Matter of Rojas, the BIA considered whether an alien, whose conviction would otherwise subject him to 8 U.S.C. § 1226(c), was exempt because he was not taken into immigration custody until two days after his release from state custody, and concluded that he was not.