JOSEPH
22 I. & N. Dec. 799 (1999)
Rule of Law:
A lawful permanent resident will not be considered "properly included" in a mandatory detention category when an Immigration Judge or the Board of Immigration Appeals finds it "substantially unlikely" that the Immigration and Naturalization Service will prevail on a charge of removability that would otherwise mandate detention, thereby allowing for a redetermination of custody conditions.
Facts:
- Samuel Joseph, a native and citizen of Haiti, was admitted to the U.S. as a lawful permanent resident in 1989.
- Joseph was convicted of the common law offense of "obstructing and hindering" in Maryland, for which he received a 1-year sentence.
- The criminal charge alleged Joseph intentionally and knowingly obstructed a police officer in the performance of duties, following a vehicle chase and Joseph jumping from his moving car.
- Joseph's conviction related to actions to obstruct or hinder his own arrest, rather than obstructing the arrest of another or influencing judicial proceedings.
Procedural Posture:
- The Immigration and Naturalization Service (INS) commenced removal proceedings against Samuel Joseph in November 1998, charging him as removable for having been convicted of an aggravated felony (obstruction of justice).
- On January 20, 1999, an Immigration Judge (IJ) terminated the underlying removal proceedings, finding that Joseph's conviction did not qualify as an aggravated felony.
- On the same day, the IJ issued an oral order in bond proceedings releasing Joseph from custody, followed by a written release order on January 22, 1999.
- The INS timely appealed both the IJ's decision terminating Joseph’s removal proceedings and the IJ's order releasing Joseph on his own recognizance to the Board of Immigration Appeals.
- The INS obtained an automatic stay of the IJ's release order during the pendency of its bond appeal, in accordance with the Board's earlier ruling in `Matter of Joseph` (22 I&N Dec. 3387).
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Issue:
Does an Immigration Judge or the Board of Immigration Appeals have jurisdiction to redetermine custody conditions for a lawful permanent resident charged with a mandatory detention ground, and what standard applies when determining if the resident is "properly included" in such a category for bond purposes when an appeal of the underlying removability charge is pending?
Opinions:
Majority - FILPPU, Board Member
Yes, an Immigration Judge (IJ) or the Board of Immigration Appeals (Board) has jurisdiction to redetermine custody conditions for a lawful permanent resident (LPR) charged with a mandatory detention ground, and the LPR will not be considered "properly included" in a mandatory detention category when the IJ or Board finds it substantially unlikely that the Service will prevail on the charge of removability. The Board clarified that while a conviction document may provide the Service with an initial "reason to believe" an alien is removable for charging and initial custody purposes, neither the IJ nor the Board is bound by the Service's decision when determining bond jurisdiction. Regulations at 8 C.F.R. § 3.19(h)(2)(ii) allow an alien to seek a determination that they are not properly included in a mandatory detention category. An IJ may rely on a prior merits decision in the removal case to make this bond determination, or, if deciding before the merits hearing, must have "very substantial grounds" to conclude the Service is "substantially unlikely" to establish the charge. The Board agreed with the IJ that Joseph's Maryland conviction for "obstructing and hindering" his own arrest was substantially unlikely to qualify as an aggravated felony of "obstruction of justice" under section 101(a)(43)(S) of the Act, citing `United States v. Aguilar` for the proposition that "obstruction of justice" typically requires an intent to influence judicial proceedings. The mere fact that the Service appealed the underlying removal case does not preclude the IJ's independent bond determination. The automatic stay of a release order is extinguished by the Board's decision on the Service's bond appeal.
Concurring and dissenting - SCHMIDT, Chairman; joined by VACCA, VILLAGELIU, ROSENBERG, and GUENDELSBERGER, Board Members
Yes, an Immigration Judge (IJ) or the Board has jurisdiction to redetermine custody conditions for a lawful permanent resident charged with a mandatory detention ground, and the Board correctly found Joseph not properly included in mandatory detention. However, the standard for determining "properly included" should be whether the Service has demonstrated a "likelihood of success" on the merits of its charge, rather than the majority's "substantially unlikely to prevail" standard. Chairman Schmidt concurred with the dismissal of the Service's appeal and the release of Joseph, agreeing that the Service was "substantially unlikely to prevail" on the aggravated felony charge in this specific case. However, he dissented on the standard articulated by the majority for future cases, arguing that mandatory detention of LPRs implicates constitutionally-protected liberty interests. He contended that if an LPR makes a "colorable showing" they are not subject to mandatory detention, the Service should be required to show a "likelihood of success on the merits" of its charge to continue detention. This more stringent standard would provide greater protection for liberty interests and give more "genuine life" to the regulation allowing IJ reexamination, without necessarily releasing dangerous aliens who could still be detained under discretionary criteria.
Analysis:
This case significantly clarifies the authority of Immigration Judges and the Board of Immigration Appeals to review mandatory detention determinations for lawful permanent residents. By establishing a "substantially unlikely to prevail" standard, the Board signals that IJs and the Board are not merely rubber stamps for Service charges but have an independent role in protecting liberty interests. This ruling places a higher burden on the Service to clearly establish the factual basis for removability grounds that mandate detention early in the process, especially when an LPR challenges their proper inclusion in such a category. This decision could lead to more LPRs successfully challenging mandatory detention and gaining release while their underlying removability cases are litigated.
