Cite as 24 I&N Dec. 124 (BIA 2007) Interim Decision #3558 

In re Roman KOTLIAR, Respondent 

File A79 525 391 - Lancaster 

Decided March 21, 2007 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

(1) An alien who has been apprehended at home while on probation for criminal convictions 

is subject to mandatory detention under section 236(c)(1) of the Immigration and 

Nationality Act, 8 U.S.C. § 1226(c)(1) (2000), regardless of the reason for the most 

recent criminal custody, provided it can be ascertained from the facts that he was released 

from criminal custody after October 8, 1998, the expiration date of the Transition Period 

Custody Rules. 

(2) An alien need not be charged with the ground that provides the basis for mandatory 

detention under section 236(c)(1) of the Act in order to be considered an alien who “is 

deportable” on that ground. 

FOR RESPONDENT: Leon B. Hazany, Esquire, Beverly Hills, California 

BEFORE: Board Panel: PAULEY and HESS, Board Members; ROMIG, Temporary 

Board Member. 

PAULEY, Board Member: 

In a bond redetermination decision dated October 5, 2006, an Immigration 

Judge denied the respondent’s request for a change in custody status, 

concluding that there was no jurisdiction to set a bond. The respondent has 

appealed from that decision. The appeal will be dismissed. 

In a November 14, 2006, memorandum decision, the Immigration Judge 

considered the following facts, which are not in dispute. The respondent is 

a 33-year-old native and citizen of Russia who last entered the United States 

on or about April 6, 2001, as a nonimmigrant visitor with authorization to 

remain until October 5, 2001. Following his failure to depart, he was charged 

in a Notice to Appear (Form I-862) with having remained in the United States 

for a time longer than permitted in violation of section 237(a)(1)(B) of the 

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B) (2000). The 

respondent admitted that he has been convicted of the following offenses in 

violation of the California Penal Code: false identification to a police officer 

on June 1, 2006; petty theft with a prior on November 5, 2005; burglary on 

May 18, 2004; and cable TV theft on November 11, 2002. 

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Cite as 24 I&N Dec. 124 (BIA 2007) Interim Decision #3558 

The Immigration Judge concluded that the respondent is subject to 

mandatory detention pursuant to Section 236(c)(1)(B) of the Act, 8 U.S.C. 

§ 1226(c)(1)(B) (2000), because of his multiple convictions for crimes 

involving moral turpitude. The theft offenses of which the respondent was 

convicted are clearly crimes involving moral turpitude, so there is no question 

in that regard before us. United States v. Esparza-Ponce, 193 F.3d 1133 (9th 

Cir. 1999); Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992); Matter of 

Adetiba, 20 I&N Dec. 506 (BIA 1992); see also Rashtabadi v. INS, 23 F.3d 

1562 (9th Cir. 1994). 

The respondent makes two arguments on appeal. First, he contends that he 

is not subject to mandatory detention because he did not serve a jail term and 

was apprehended from his home while on probation, rather than when he was 

released from criminal custody. However, section 236(c)(1) of the Act 

expressly states that an alien is subject to mandatory detention and shall be 

taken into custody when the alien is released, without regard to whether he 

was released “on parole, supervised release, or probation.”1

 Moreover, we 

have held that an alien who is released from criminal custody (including from 

an arrest preceding a conviction, as the respondent implicitly conceded took 

place here) after the expiration of the Transition Period Custody Rules, which 

occurred on October 8, 1998, is subject to mandatory detention pursuant to 

section 236(c) of the Act, even if the alien is not immediately taken into 

custody by immigration officials when released from incarceration. Matter of 

Rojas, 23 I&N Dec. 117 (BIA 2001); Matter of West, 22 I&N Dec. 1405 (BIA 

2000). Although the Immigration Judge did not discuss when the respondent 

came into custody, it is obvious from the record that he must have been 

detained at some time after his conviction in 2002. Therefore, the record 

reflects that the respondent was released from criminal custody after the 

expiration of the Transition Period Custody Rules. Illegal Immigration 

Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 

Section 236(c)(1) of the Act provides as follows: 

The Attorney General shall take into custody any alien who— 

(A) is inadmissible by reason of having committed any offense covered in 

section 212(a)(2), 

(B) is deportable by reason of having committed any offense covered in section 

237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D), 

(C) is deportable under section 237(a)(2)(A)(i) on the basis of an offense for 

which the alien has been sentence to a term of imprisonment of at least 1 year, or 

(D) is inadmissible under section 212(a)(3)(B) or deportable under section 

237(a)(4)(B), 

when the alien is released, without regard to whether the alien is released on parole, 

supervised release, or probation, and without regard to whether the alien may be 

arrested or imprisoned again for the same offense. 

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Cite as 24 I&N Dec. 124 (BIA 2007) Interim Decision #3558 

104-208, § 303(b)(3), 110 Stat. 3009-546, 3009-586. Consequently, the 

respondent’s first argument must fail. 

In his second argument, the respondent asserts that because the Notice to 

Appear did not charge that he is removable on the basis of his convictions, he 

should not be subject to mandatory detention pursuant to section 236(c)(1)(B)

of the Act as one who “is deportable” under section 237(a)(2)(A)(ii) by reason 

of having committed two crimes involving moral turpitude. We disagree. 

Where the record reflects that an alien has committed any of the offenses 

covered in sections 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of the Act, the 

alien is subject to mandatory detention pursuant to section 236(c)(1)(B) as one 

who “is deportable” for the offense, without regard to whether the Department 

of Homeland Security (“DHS”) has exercised its prosecutorial discretion to 

lodge a charge based on the offense. 

We have previously held that the “is deportable” language in the Transition 

Period Custody Rules does not require that an alien be charged with and found 

deportable on the ground that provides the basis for mandatory detention. 

Matter of Melo, 21 I&N Dec. 883, 885 n.2 (BIA 1997) (noting that “bond 

determinations . . . are normally rendered before any finding of 

deportability”); see also Matter of Fortiz, 21 I&N Dec. 1199, 1201 n.3 (BIA 

1998) (distinguishing Matter of Melo in the context of establishing eligibility 

for a waiver). For similar reasons, we now hold that the “is deportable” 

language in the current mandatory custody statute does not require that the 

alien be charged with or found deportable on the particular ground on which 

detention is based. 

In Matter of Joseph, 22 I&N Dec. 799, 806 (BIA 1999), we held that 

subject to an automatic stay provision, a lawful permanent resident is not 

considered “properly included” in a mandatory detention category when an 

Immigration Judge or the Board finds, on the basis of the bond record as a 

whole, that it is substantially unlikely that the Immigration and Naturalization 

Service (now the DHS) will establish at the merits hearing, or on appeal, the 

charge or charges of removability that would otherwise subject the alien to 

mandatory detention under section 236(c)(1) of the Act. The alien in that case 

was charged with being removable as an aggravated felon under section 

237(a)(2)(A)(iii) of the Act, which would have rendered him subject to 

mandatory detention under section 236(c)(1)(B). There was no other charge 

of removability. We concluded that it was substantially unlikely that the 

respondent’s offense would be viewed as an aggravated felony and therefore 

that he was not “properly included” in a mandatory detention category. Id. at 

808.

 The facts in this matter are distinguishable, in that the ground for removal 

is unrelated to the convictions subjecting the respondent to mandatory 

detention. In order to determine whether the respondent is properly included 

in a mandatory custody category where there is no charge that he is removable 

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on the basis of an offense enumerated in section 236(c)(1)(B), we look at the 

record to determine whether it establishes that he has committed an offense 

and whether the offense would give rise to a charge of removability included 

in that provision. In this case, where the respondent admitted that he was 

convicted of several crimes involving moral turpitude, we do not find that the 

DHS is substantially unlikely to establish that the respondent’s convictions 

would support a charge of removability under section 237(a)(2)(A)(ii) of the 

Act. We therefore conclude that the Immigration Judge properly found him 

to be subject to mandatory detention. 

Our conclusion is consistent with the congressional concern that criminal 

aliens would continue to commit crimes and would fail to appear for removal 

hearings if they were not detained, a concern that was noted by the United 

States Supreme Court in Demore v. Kim, 538 U.S. 510 (2003) (holding that 

the detention of a lawful permanent resident during removal proceedings 

pursuant to the mandatory detention provisions of the Act does not violate 

constitutional due process rights). Not only is the mechanism of mandatory 

detention required by the Act itself when the DHS has met its burden of 

showing that an alien has been convicted of, or committed, one of the offenses 

enumerated in section 236(c)(1) of the Act, but it is also a rational method of 

ensuring that criminal aliens appear at their hearings and are prevented from 

committing more crimes in the interim. The respondent is a repeat offender 

who continues to violate both our immigration and criminal laws. His 

detention will not only ensure his appearance at his removal proceedings, but 

it will also prevent him from engaging in further criminal activity. 

Where the ground for removal subjects an alien to mandatory detention, the 

charging document serves as notice to the alien of the circumstances relied on 

by the DHS to detain him. However, where the basis for detention is not 

included in the charging document, the alien must be given notice of the 

circumstances or convictions that provide the basis for mandatory detention 

and an opportunity to challenge the detention before the Immigration Judge 

during the bond redetermination hearing. The Immigration Judge’s decision, 

which found the respondent’s admissions to his convictions to be the basis for 

mandatory detention, reflects that the respondent had notice and an 

opportunity to be heard in this matter. 

On appeal, the respondent has presented additional evidence of 

discretionary factors and a claim for relief from removal. In light of the 

mandatory detention ruling, this evidence is not relevant to the bond 

redetermination. Accordingly, the respondent’s appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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