A proposal submitted in the U.S. Senate last week would expand the INA’s mandatory detention provision by decoupling detention with release from criminal confinement. Republican Senators spent some time last week debating amendments to the Justice for Victims of Trafficking Act of 2015, S. 178, a provision introduced by Republican Senator John Cornyn (Texas) that would amend federal laws prohibiting human trafficking and providing support for trafficked individuals.
One of the many amendments to S. 178 proposed, one by Oklahoma’s Senator James Inhofe would alter existing caselaw that limits the breadth of INA § 236, the so-called mandatory “detention” provision. As it currently stands, anyone subject to the broad list of criteria listed in § 236(c)(1) is subject to mandatory detention. The statute itself says that the person must be kept in “custody,” but the BIA has interpreted that to mean “detention.” Matter of Aguilar-Aquino, 24 I&N Dec. 747, 751-53 (BIA 2009).
Given that foundation, let me explain how Inhofe’s amendment, Senate Amendment 275 titled the “Keep Our Communities Safe Act of 2015,” would expand mandatory detention. First, many federal courts currently take the position that a person is subject to § 236(c) only if taken into ICE custody immediately upon release from criminal custody; the BIA, in contrast, says that link is not required. As I explain this disagreement in my forthcoming book Crimmigration Law:
The Board [of Immigration Appeals]…takes the position that § 236(c) applies if a migrant is removable for one of the reasons listed in the statute even if she was not taken into ICE custody immediately upon release from criminal custody. According to the Board, this position helps fulfill Congress’s intent in enacting § 236(c). “Congress,” the Board explained, “was not simply concerned with detaining and removing aliens coming directly out of criminal custody; it was concerned with detaining and removing all criminal aliens.” One court of appeals agrees with the BIA’s position, but a constantly growing number of federal district courts have taken issue with the Board’s conclusion.
Inhofe’s amendment would add the BIA’s position into the INA explicitly. His proposal would provide: “If the activity described in this paragraph does not result in the alien being taken into custody by any person other than the Secretary, then when the alien is brought to the attention of the Secretary or when the Secretary determines it is practical to take such alien into custody, the Secretary shall take such alien into custody.” That is, a person who meets the criteria listed in § 236(c)(1) would be subject to mandatory detention at any time that DHS caught up with them.
Second, Inhofe’s amendment would consider a migrant to be subject to mandatory detention regardless of the reason she was in criminal custody so long as she has at some point done something that fits into § 236(c)(1)’s criteria. This, as it turns out, actually disagrees with the BIA’s current position. Again to quote my book, “the BIA takes the position that the criminal custody must be ‘directly tied to the basis for detention under sections 236(c)(l)(A)-(D) of the Act.’ Release from criminal arrest for activity that would not result in removal under one of the reasons enumerated in § 236(c) thus cannot lead to mandatory detention.”
Inhofe’s amendment provides that a migrant may be taken into ICE’s hands “any time after the alien is released, without regard to whether an alien is released related to any activity, offense, or conviction described in this paragraph.” In other words, the reason for being in criminal custody is irrelevant.
I really have no sense whether Inhofe’s amendment will be adopted. It’ll be interesting to see what develops.
 See Matter of Rojas, 23 I&N Dec. 117, 122, 124, 127 (BIA 2001).
 Id. at 122.
 See Sylvain v. Atty. Gen., 714 F.3d 150, 157 (3d Cir. 2013).
 See Valdez v. Terry, 874 F. Supp. 2d 1262, 1274-75 (D.N.M. 2012) (collecting cases).
 Matter of García Arreola, 25 I&N Dec. 267, 269 (BIA 2010).
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