Earlier this week, the U.S. Court of Appeals for the Tenth Circuit expanded the broad powers that immigration officials have to force migrants into mandatory immigration detention. Olmos v. Holder, No. 14-1085, slip op. (10th Cir. March 24, 2015). The court both endorsed and independently validated the Board of Immigration Appeals’ position that mandatory detention under INA § 236(c) is required even if the migrant is taken into ICE custody days after being released from criminal custody.
This case involved a migrant convicted of state identity theft and two related crimes. After completing his state prison sentence for those offenses, Olmos was released. Six days later, ICE agents arrested him. ICE claims Olmos is subject to mandatory detention. No one disputes that he would have been subject to mandatory detention under INA § 236(c) had ICE arrested him immediately upon release from criminal custody. But that’s not what happened. The key question, consequently, was whether that six-day gap pushed him out of the mandatory detention provision’s reach. The government claimed no; Olmos claimed it did. Id. at 7.
First some background on mandatory immigration detention powers. As I explain in my forthcoming book, Crimmigration Law (ABA 2015),
Added to the INA in 1996, § 236(c) requires immigration judges to order into custody any migrant whom there is reason to believe is removable for almost every crime-based reason, including crimes involving moral turpitude, controlled substance offenses, and aggravated felonies. No matter how many equities the migrant can point to, an immigration judge cannot consider releasing someone subject to mandatory detention. Such a procedure, the Supreme Court held in Demore v. Kim, is constitutionally permissible. There is no question that this is an expansive obligation.
Though § 236(c) is broad, there is plenty of room for strategic representation. Perhaps because it imposes a deprivation of liberty without individualized assessments of risk, much of § 236(c)’s nuances are hotly contested. The Board, for example, 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.
This week’s Tenth Circuit decision raises the number of courts of appeals that side with the BIA to two. The court wasn’t convinced by the Board’s claim that Congress wanted to incarcerate all migrants with convictions. “Congress could conceivably have been less concerned about the appearance of aliens who had been released and had not taken the opportunity to flee,” the court noted. Id. at 11. It was not clear to the court that § 236(c) led to that outcome either, though. In fact, the court agreed with the BIA that it’s not clear what § 236(c) actually commands. Id. at 7.
Because the court concluded that the statutory language is ambiguous, it turned to deciding whether the Board’s interpretation of § 236(c) was permissible under rather deferential standards. The Board’s interpretation is permissible, the court explained “unless it is ‘arbitrary, capricious, or manifestly contrary to’” the statutory text. Id. at 17 (quoting Berneike v. Citimortgage, Inc., 708 F.3d 1141, 1148 (10th Cir. 2013)). It took several pages, but the court’s analysis never wavered: the Board’s view of § 236(c) is permissible. In the court’s words: “Deferring to this interpretation, we draw the same conclusion: In § 1226(c)(2) [INA § 236(c)(2)], Congress limited the Attorney General’s power to allow release of aliens identified…even when there had been a six-day gap in custody. Thus, Mr. Olmos was not entitled to a bond hearing….” Id. at 22-23.
Though that would’ve been enough to decide the case, the court didn’t stop there. It went on to articulate a separate basis for concluding that ICE was obligated to detain Olmos. In effect, the court explained that it was simply irrelevant that ICE arrested Olmos days after he was released from criminal custody. “The Supreme Court has repeatedly held,” the court wrote, “that when a statute requires a governmental actor (like the Attorney General) to do something within a deadline and he fails to do it, the requirement continues.” Id. at 24. “Thus,” the court went on, “the delay here by the governmental actor (the Attorney General) would not have vitiated his statutory duty to impose detention without a bond hearing….” Id. at 25.
Olmos was subject to mandatory detention, the Tenth Circuit concluded—no question about it.
 See IIRIRA, Pub. L. 104-208, Div. C, Title III, Subtitle A, § 303(a), 110 Stat. 3009-585; 63 Fed. Reg. 27444 (explaining the “reason to believe” threshold inquiry).
 See Demore v. Kim, 538 U.S. 510, 524-25, 531 (2003).
 See Matter of Rojas, 23 I&N Dec. 117, 122, 124, 127 (BIA 2001).
 Matter of Rojas, 23 I&N Dec. 117, 122 (BIA 2001).
 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).
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