Saysana v. Gillen

Filing 920091222

Opinion

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var WPFootnote1 = '  Of the Seventh Circuit, sitting by designation.\
'

var WPFootnote2 = '  8 U.S.C. § 1227(a)(2)(A)(iii) provides: “Any alien who is\
convicted of an aggravated felony at any time after admission is\
deportable.”\
'

var WPFootnote3 = '  In 1996, Congress passed IIRIRA. Pub. L. No. 104-28, 110\
Stat. 3009-546. IIRIRA contains a mandatory detention provision,\
§ 236(c) of the Immigration and Nationality Act (“INA”), codified\
at 8 U.S.C. § 1226(c). Implementation of Section 1226(c) was\
deferred for two years, during which time detention was governed by\
§ 303(b)(3), otherwise known as the Transition Period Custody Rules\
(“TPCR”). The TPCR provided for individualized bond hearings for\
some aliens deportable for having committed certain crimes; the\
immigration judge could set bond after finding that the alien was\
not a danger to the community and was likely to appear for future\
proceedings. The TPCR expired on October 8, 1998, and the\
mandatory detention provision of 8 U.S.C. § 1226(c) became\
effective. \
'

var WPFootnote4 = '  See supra note 2.\
'

var WPFootnote5 = '  See Bailey v. United States, 516 U.S. 137, 146 (1995)\
(noting that the term “‘using a firearm’ should not have a\
different meaning in” two adjacent subsections of the same statute\
(citation omitted)); Gustafson v. Alloyd Co., 513 U.S. 561, 570\
(1995) (“[T]he normal rule of statutory construction [is] that\
identical words used in different parts of the same act are\
intended to have the same meaning.” (internal quotation marks\
omitted)). \
'

var WPFootnote6 = '  As a corollary to this point, the Government questions “how\
an alien convicted of and incarcerated for a removable offense\
could ever be ‘arrested or imprisoned again for the same offense,’\
given the legal concept of double jeopardy under the Constitution.” \
Appellant’s Br. at 20. An alien, however, could be out on bond\
pending sentencing or could be out of prison on supervised release\
or probation and, therefore, be subject to re-arrest and re-imprisonment for violation of the conditions of his release. \
Indeed, the statute itself specifically contemplates these\
situations. 8 U.S.C. § 1226(c)(1) (noting that the “release[]” as\
a trigger is unaffected by any conditions such as “parole,\
supervised release, or probation”).\
'

var WPFootnote7 = '  We note that, in crafting the new provisions, Congress not\
only made explicit that only releases after the effective date\
would trigger mandatory detention, but it further provided the\
Attorney General (then responsible for the Immigration and\
Naturalization Service) with the authority to request extensions of\
the effective date. See IIRIRA § 303(b)(2). As a result, the\
system operated with less strident mandatory detention standards in\
place for two years following enactment under the transition rules. \
Although Congress clearly expressed concern about aliens who had\
committed qualifying offenses, it declined to begin immediately\
prospective application of the detention provisions to aliens with\
releases after enactment, let alone retrospective application to\
aliens with prior releases. Our reading attributes to the text the\
same sensible acknowledgment of the important practical\
governmental interests in the administration of the immigration\
enforcement program that justified the initial delay. It is fully\
consistent with the purposes and the application of the limited\
system of mandatory detention created by Congress.\
'

var WPFootnote8 = '  The history of the particular proceedings now before us\
further draws the validity of the conclusions themselves into\
question. As this case initially came before this court, it was\
consolidated with another case of a similarly situated alien. Hy\
v. Gillen, No. 09-1182. The companion case was dismissed as moot\
upon notice to the court by the parties that the alien was granted\
relief from removal. Id., Notice of Petitioner-Appellee, Attach.\
1 (Order the BIA (May 21, 2009)).\
'

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