Proposing a One-Year Time Bar for 8 U.S.C. § 1226(c)

Authors

Jenna Neumann, University of Michigan Law School

Abstract

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires federal detention of certain deportable noncitizens when those noncitizens leave criminal custody. This section applies only to noncitizens with a criminal record (“criminal noncitizens”). Under section 1226(c), the Attorney General must detain for the entire course of his or her removal proceedings any noncitizen who has committed a qualifying offense “when the alien is released” from criminal custody. Courts construe this phrase in vastly different ways when determining whether a criminal noncitizen will be detained. The Board of Immigration Appeals (BIA) and the Fourth Circuit read “when the alien is released” to mean “any time after the alien is released,” allowing the government to detain and deport criminal noncitizens years or decades after their release from criminal custody. A majority of district courts as well as the First Circuit, however, have interpreted the clause to mean “immediately upon the alien’s release.” Under this construction, immigration enforcement can detain a criminal noncitizen for deportation and detention only shortly after her release from criminal custody. This Note argues that in light of recent legal and policy changes, the latter interpretation of section 1226(c) offers the correct understanding of the statute. It further contends that a universal one-year time bar should be implemented for detentions occurring under section 1226(c) to respect due process concerns.

Recommended Citation

Jenna Neumann, Proposing a One-Year Time Bar for 8 U.S.C. § 1226(c), 115 Mich. L. Rev. 707 (2017).
Available at: https://repository.law.umich.edu/mlr/vol115/iss5/3