for § 236(c) to apply retroactively, it could have
required custody "regardless of when the alien is released" or "at
any time after the alien is released." Alwaday, 43 F. Supp.2d
1130, 1133 (Congress did not intend for § 236(c)
to be applied retroactively).
Respondent also argues that this Court should defer to the
BIA's decision in In re Nobel which held that similar language in
the rules governing the transitional period between the enactment
of IIRIRA amendments and the effective date of § 236(c) applied to
aliens who had been convicted, released and had an initial bond
determination prior to the invocation of the "Transition Period
Custody Rules" ("TPCRs").*fn9 See Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Under Chevron, the Court is required to defer to an agency's
reasonable interpretation of its governing statute. 467 U.S. at
843. It is unclear, however, whether Chevron deference is
appropriate where the issue is the effective date of a statute.
Sandoval, 166 F.3d at 239. As the Court of Appeals for the Third
Circuit recently noted, Chevron applies where Congress delegated
rule-making power to an agency and thereby sought to rely on
agency expertise in the formulation of substantive policy and in
interpreting statutes in conformity with that policy and with the
benefits of the agency's expertise. However, "[a]n issue
concerning a statute's effective date is not one that implicates
agency expertise in any meaningful way and does not, therefore,
require Chevron deference. Rather, the question of a statute's
effective date appears to present `a pure question statutory
construction for the courts to decide.'" Id. (quoting INS v.
Cardoza-Fonseca, 480 U.S. 421, 446 (1987)).
Nevertheless, the Court need not decide whether Chevron
applies in this context or not. Assuming arguendo that it does,
Chevron directs the court to determine through the use of
"traditional tools of statutory construction" whether Congress has
expressed "an intention on the precise question at issue." 467
U.S. at 843 n. 9; Sandoval, 166 F.3d at 240. If the statute is
clear, that ends the inquiry. De Sousa, 30 F. Supp. at 850. Only
if the statute is silent or ambiguous is deference appropriate.
Chevron, 467 U.S. at 842-43; De Sousa, 30 F. Supp. at 850. Using
traditional tools of statutory construction, the Court concludes
that Congress did express an intention on the precise question at
issue, namely that § 236(c) was not to be applied to aliens who
were released from criminal custody prior to its effective date of
October 9, 1998. Thus, applying Chevron does not alter the
Finally, because I find that the statute does not apply to
Grant, I do not reach the question of whether the mandatory
detention provision contained in § 236 is unconstitutional.
See Jean v. Nelson, 472 U.S. 846, 854 (1985) (noting the
prudential rule that federal courts should avoid reaching
constitutional questions when the issue can be resolved on
narrower grounds); United States v. Clemons, 843 F.2d 741, 749-50
(3d Cir.), cert. denied, 488 U.S. 835 (1988).
For the foregoing reasons, the petition for a writ of habeas
corpus was granted by Order of this Court on June 14, 1999; the
automatic stay was lifted and the bond
redetermination decision of the Immigration Judge was reinstated
(Document No. 8).*fn10