4. In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) , the Ninth Circuit held that an individual facing prolonged immigration detention under section 241(a)(6) of the Act, is entitled to be released on bond unless the government establishes the individual is a flight risk or a danger to the community. The
1On March 1, 2003, the Immigration and Naturalization Service ceased to exist as an agency under the U.S. Department of Justice and became a part of the newly-formed Department of Homeland Security. In this outline, the Department of Homeland Security will continue to be referred to as the DHS or, where appropriate, the INS, the Service, or alternatively, the Government.
2. The term “arriving alien” means an alien who seeks admission to or transit through the United States, as provided in 8 C.F.R. § 1235.1, at a port of entry, or an alien who is interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. 8 C.F.R. § 1001.1(q). 3. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act. 8 C.F.R. § 1001.1(q). 4. An alien who leaves the U.S. to seek refugee status in Canada, and then returns to the U.S. after the application was denied in Canada, is deemed to be seeking admission to the U.S. Therefore, such an alien is deemed to be an arriving alien. Matter of R-D-, 24 I&N Dec. 221 (BIA 2007). C. Admission or admitted 1. Section 101(a)(13)(A) of the Act, as amended by section 301 of the IIRIRA, provides that the terms “admission” and “admitted” mean the lawful entry of an alien into the U.S. after inspection and authorization by an immigration officer. 2. An alien who has not been admitted to the United States is subject to the inadmissibility grounds under section 212(a) of the Act, 8 U.S.C. § 1182(a). Pursuant to 237(a) of the Act, 8 U.S.C. § 1227(a), an alien (including an alien crew member) in and admitted to the United States is subject to the deportation grounds under that section. Under section 237(a)(1)(A) of the Act, deportable aliens includes any alien who was inadmissible at the time of entry or adjustment of status. 3. The Board held that an alien who initially entered the U.S. without inspection, but whose conviction for an aggravated felony was subsequent to her adjustment of status to that of a lawful permanent resident under section 245A of the Act, is deportable under section 237(a)(2)(A)(iii) of the Act as an alien who was convicted of an aggravated felony “after admission.” Matter of Rosas, 22 I&N Dec. 616 (BIA 1999). D. Parole and crewmen 1. An alien who is paroled under section 212(d)(5) of the Act or permitted to land temporarily as a crewman shall not be considered to have been admitted. INA § 101(a)(13)(B). E. Lawful permanent residents
The “entry doctrine” A. History lesson 1. Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the decision as to whether an alien was subject to deportation proceedings or exclusion proceedings was based on whether or not the alien had made an “entry” into the U.S. An alien who had made an entry was entitled to a deportation hearing and the greater procedural safeguards it provided. An alien who had not made an entry was placed in exclusion proceedings. Former section 101(a)(13) of the Act defined entry as “any coming of an alien into the U.S. from a foreign port or place.” The Board of Immigration Appeals (“Board”) formulated a more precise definition of entry so as to better distinguish between exclusion and deportation in Matter of Pierre, 14 I&N Dec. 467 (BIA 1973), Matter of Phelisna, 18 I&N Dec. 272 (BIA 1982), and Matter of G-, 20 I&N Dec. 764 (BIA 1993). All of this came to be known as “the entry doctrine.” 2. An exception also arose for lawful permanent residents (“LPR”s) returning to the U.S. after a brief, casual, and innocent departure. The Supreme Court held that such a departure would not constitute an “entry” within the meaning of former section 101(a)(13). Rosenberg v. Fleuti, 374 U.S. 449 (1963). This became known as the “Fleuti Doctrine.” 3. These two doctrines caused a great deal of litigation over the issue of whether certain aliens were properly placed in exclusion proceedings. They were rather time consuming and, since they dealt with the issue of whether or not the alien was in the proper proceeding, delayed the addressing of the ultimate issues in the cases, i.e. the issues of excludability and eligibility for relief. 4. In the IIRIRA, Congress sought to simplify things by creating removal proceedings which are applicable to aliens admitted to the United States, aliens applying for admission, and aliens present in the United States without being inspected and admitted. It also made the difference dependent simply on whether the alien had been admitted or not. B. Applicants for admission 1. Section 235(a)(1) of the Act provides that “An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this Act an applicant for admission.”
on this issue and, in a later decision, the Board held that section 236(c) of the Act does not apply to aliens whose most recent release from custody by an authority other than the INS occurred prior to the expiration of the TPCR on October 8, 1998. Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999). Custody determinations of aliens in removal proceedings who are not subject to the provisions of section 236(c) of the Act are governed by the general custody provisions at section 236(a) of the Act. Id. However, by virtue of 8 C.F.R. § 1236.1(c)(8), a criminal alien in a custody determination under section 236(a) of the Act must establish to the satisfaction of the IJ and the Board of Immigration Appeals that he or she does not present a danger to property or persons. Id. In Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA 2010), the Board modified its decision in Matter of Adeniji and held that section 236(c) of the Act requires mandatory detention of a criminal alien only if he or she is released from non-DHS custody after the expiration of the TPCR and only where there has been a post-TPCR release that is directly tied to the basis for detention under sections 236(c)(1)(A)–(D) of the Act. (1) The Board had previously ruled in Matter of Saysana, 24 I&N Dec. 602 (BIA 2008) that the mandatory detention provision in section 236(c)(1) “does not support limiting the non-DHS custodial setting solely to criminal custody tied to the basis for detention under that section.” The Board’s decision in Matter of Garcia-