DHS alleged that this conviction rendered Garcia Arreola removable under INA § 237(a)(2)(B)(i) for having been convicted of a controlled substance offense. Only two years ago, the BIA held in Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), “that the language of section 236(c)(1) of the Act does not support limiting the non-DHS custodial setting to post-TPCR criminal custody tied to the offenses enumerated in the statute.” Matter of Garcia Arreola, 25 I&N Dec. at 269.

In a published decision released last week, the First Circuit Court of Appeals held that the mandatory detention provision, INA § 236(c), 8 U.S.C. § 1226(c), applies only when a person is released from custody for a removable offense enumerated in § 236(c). 24 I&N Dec. 602 (BIA 2008). In Matter of Saysana, the Board held that the mandatory detention provision applied to any non-citizen with a qualifying conviction who was released from any criminal custody after October 8, 1998.