Alien Is "Released from Imprisonment," for Supervised Release Purposes, When He Is Transferred from BOP to ICE Custody to Await Removal

United States v. Garcia-Rodriguez, Nos. 09-20406 & 09-40635 (5th Cir. May 2, 2011) (per curiam) (Smith, DeMoss, Owen)

Title 18 U.S.C. § 3624(e) instructs that a "term of supervised release commences on the day the person is released from imprisonment."  Seems straightforward enough.  But what if the person is an alien, completes his sentence, and is transferred from BOP to ICE custody and remains in administrative detention pending his removal from the country?  When is he released from imprisonment?

The court holds that "a straightforward reading of the applicable statute [§ 3624] shows that administrative detention by ICE is not the same as imprisonment by the BOP."

The statutory language of subsections (a) and (e) makes several things clear. First, imprisonment ends upon a prisoner’s release from the custody of “the Bureau of Prisons.” See id. § 3624(a), (e). Second, any other term of imprisonment must be “in connection with a[separate] conviction” for a “crime” if such imprisonment is to toll the term of supervised release. Id. § 3624(e). Third, the release shall be made “to the supervision of a probation officer.” Id. And finally, only the specific terms “imprisonment” or “imprisoned” are used, not the term administrative detention or other specific types of custody. Id. § 3624(a), (e).

"Moreover," the court added, "it is clear under federal immigration law that administrative detention of an alien is not the same as imprisonment for a crime."  Consequently, "administrative detention by ICE does not qualify as imprisonment and that, for purposes of § 3624(e), Garcia was 'released from imprisonment' the moment he was transferred from BOP custody to ICE custody to await deportation."

Why does this matter?  Because of the tolling provision found in § 3583(i), which permits a court to revoke a term of supervised release within a reasonably necessary period after the term expires, if a warrant or summons issued before the expiration of the term.  In this case, Garcia's 3-year term of supervsised release was revoked after it expired.  The question was whether the revocation warrant issued before the term expired, a question which turned on when he was released from imprisonment.  As it happens, it wasn't clear from the record exactly when Garcia was transferred from BOP to ICE custody, so the court remanded for findings on that point.