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Musings on R.E.M and Mandatory Detention

I have long been a fan of the band R.E.M. Their “Out of Time” album is one of my favorites by the band. The title and feel of the album suggest a certain timelessness, a freedom from temporal limitations. As I learned from reading a later interview with the band, the title for the album was chosen in response to the record company’s impatience with the recording process. The band slapped the “Out of Time” title on the album because the time for completing the record was up.

A recent federal case decision I read involving mandatory detention of deportable aliens who have been convicted of various crimes also invokes the concept of time, or timing to be more precise. The case comes out of the United States Court of Appeals for the Third Circuit. The appellee in the case was Michel Sylvain, a lawful permanent resident who had a history of convictions for drug-related offenses. The last conviction was for drug possession in 2007, for which Sylvain received a conditional discharge and performed community service. He had been previously incarcerated for a week in 2003.

In 2011 Immigration and Customs Enforcement (ICE) determined that Sylvain was an aggravated felon with a history of drug crimes and placed him in removal proceedings. Sylvain was subject to mandatory detention under INA section 236(c), meaning he could not get a bond hearing before an Immigration Judge to decide whether or not there would be any flight risk or danger to the community if Sylvain were released from custody before he was next due to be in immigration court. The problem from Sylvain’s point of view was that the law states that persons like Sylvain must be taken into custody when they are released. Sylvain was “released” in 2007 and ICE detained him 4 years later. The District Court, apparently in agreement with Sylvain’s position that he should be given a bond hearing because ICE did not detain him at the moment of his release, granted Sylvain’s petition for writ of habeas corpus. The government appealed that decision.

The Third Circuit reversed the order of the District Court. The question framed by the Third Circuit was, “Do immigration officials lose authority to impose mandatory detention if they fail to do so ‘when the alien is released’”? In answering that question in the negative, the Third Circuit concluded that the government can wait years before detaining a deportable person like Sylvain and then deny him a bond hearing to assess his eligibility for release pending further removal proceedings. The Third Circuit excused the government’s delay in terms of validating the public interest in keeping dangerous persons in custody and off the streets.

The Third Circuit’s reasoning and conclusion do not feel right to me. To my mind, the term “when the alien is released” means at the time of release and not later. Instead of taking a position on the meaning of that term, however, the Third Circuit reasoned that section 236(c) does not limiy the government’s authority to impose mandatory detention when somebody is not taken into custody immediately upon release. The Third Circuit’s analysis seems, to me, to be remote from the facts of the controversy. Sylvain did not appear to represent such a threat to the public or to pose such a flight risk that his ability to seek discretionary release under section 236(a) should be canceled. His offenses were for drug possession after all. It also makes no sense to me that someone who was released from custody years ago can remain a threat to public safety or be deemed a flight risk by virtue of their old conviction. Moreover, the Third Circuit seemed overly willing to excuse the government’s delay in getting around to detaining Sylvain, but its opinion contains scant discussion of actual neglect by ICE in detaining Sylvain.

The Third Circuit’s opinion is not controlling in the jurisdiction (Ninth Circuit) where I practice. In fact, a footnote to the opinion contains a reference to a U.S. District Court, Southern District of California, opinion that apparently reached a different conclusion from the Third Circuit. Nonetheless, it will be interesting to see how the Ninth Circuit interprets Section 236(c), if and when the right case comes before it. But I still feel uncomfortable with the notion of giving the government unfettered authority to detain people and deny them a bond hearing years after they have been released from custody for a prior transgression.

I will take another listen to R.E.M.’s classic 1991 album this weekend and wonder why the government should also not be “Out of Time” when it comes to applying mandatory detention to deportable persons released long long ago.

If you would like a consultation to discuss your immigration situation, then please call the San Jose Immigration Attorney at the Law Office of Timothy D. Widman today.

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