U.S. District Court: Mandatory detention provision does not apply if released from custody for removable offense before October 9, 1998

By University of Denver Sturm College of Law

Oct 26, 2009

In an order released earlier this week, a judge in the U.S. District Court for the District of Arizona held that the INA’s mandatory detention provision, INA § 236(c), does not apply to offenses committed before October 1, 1998. Cal. Penal Code § 211, and attempted robbery in the second degree, Cal Penal Code §§ 211, 664. Both of these offense were enhanced for use of a firearm. The LPR served 2.5 years of a five year sentence. He was released from custody for these offenses well before INA § 236(c) became effective on October 1, 1998. Ortiz, No. CV 009-0045-PHX-MHM, slip op. at 2.

In August 2008, he was arrested by the Maricopa County Sheriff’s Department for driving under the influence of alcohol. He was later convicted of driving under the extreme influence of alcohol, Ariz. Rev. Statute § 28-1382A, and sentenced to ten days in the county jail. He was released from the county jail on August 31, 2008 and taken into the custody of ICE. DHS charged that he was removable as a result of his 1991 second degree robbery conviction and the use of a firearm. Ortiz, No. CV 009-0045-PHX-MHM, slip op. at 2-3.

After Ortiz sought a bond, the IJ determined that the Immigration Court lacked jurisdiction to issue a bond because Ortiz fell within the mandatory detention provision. Ortiz, No. CV 009-0045-PHX-MHM, slip op. at 3. The BIA affirmed the IJ’s bond decision.

According to the district court, DHS “argues that Mr. Ortiz’s unrelated 2008 DUI offense (which would not qualify for mandatory detention) somehow qualifies Mr. Ortiz for mandatory detention because the after the 2008 DUI offense, he was ‘released from custody.’” Ortiz, No. CV 009-0045-PHX-MHM, slip op. at 5.

The district court clearly rejected this argument. “[T]he statute clearly requires a nexus between the deportable offense and the release from custody,” the district court announced. Ortiz, No. CV 009-0045-PHX-MHM, slip op. at 6. That is, “’the mandatory detention provision of 8 U.S.C. § 1226(c) [INA § 236(c)] does not apply to Petitioner because he was released from custody for the removable offense well before the effective date of the mandatory detention provision.” Ortiz, No. CV 009-0045-PHX-MHM, slip op. at 4. The district court cited to a decision of the U.S. District Court for the District of Washington which held that the mandatory detention provision “applies immediately after release from incarceration, not to aliens released year[s] earlier.” Pastor-Camarena v. Smith, 977 F. Supp. 1415, 1417 (W.D. Wash. 1997).

In addition, the district court explicitly rejected the BIA’s holding in Matter of Saysana that INA § 236(c) applies even when released from custody for a non-removable offense. 24 I&N Dec. 609 (BIA 2008). DHS argued that the district court was required to defer to the BIA’s interpretation under Chevron USA, Inc. v. Natural Resources Defense Council, Inc., the Supreme Court decision that requires courts to defer to agency interpretations of a statutory provision that falls within the agency’s area of expertise (as the BIA has over the INA) when that statutory provision is unclear and the agency’s interpretation is reasonable. 467 U.S. 837, 842-43 (1984). The district court disagreed with DHS’s argument because it found that the mandatory detention provision of the INA is clear. Ortiz, No. CV 009-0045-PHX-MHM, slip op. at 5. Therefore, under Chevron it is not required to defer to the BIA’s interpretation.

This is not the first time that a federal court interprets § 236(c) more narrowly than the BIA (read my discussion of a Pennsylvania district court’s decision issued in August 2009). Still, every time that another court follows this path helps keep DHS’s practice of mass detention slightly more in check so this decision is very welcomed news.