1st Circuit: Mandatory detention provision applies only when released from custody for an offense that is itself listed in INA § 236(c)

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. The First Circuit’s holding is much narrower than the Board’s meaning that fewer people will be subject to mandatory detention within the First Circuit.

Saysana was convicted in 1990 of indecent assault and battery in Massachusetts. He was released in 1991. In 2005, he was again arrested, but this charge was dismissed he was released from state custody. Saysana, No. 09-1179, slip op. at 2-3. In 2007, ICE took Saysana into custody pursuant to INA § 236(c) and initiated removal proceedings based on the 1990 conviction. Saysana, No. 09-1179, slip op. at 3.

After the IJ granted Saysana a bond, the DHS appealed. Saysana, No. 09-1179, slip op. at 3. The Board sided with DHS in Matter of Saysana.

The First Circuit was required to determine

whether the mandatory detention provision applies only when an alien is released from a criminal custody the basis for which is one of the offenses listed in § 1226(c)(1)(A)-(D); or, alternatively, whether it applies whenever an alien, previously convicted of an offense that falls within (c)(1)(A)-(D), is released from any criminal custody regardless of the reason for that detention. Saysana, No. 09-1179, slip op. at 7.

Under Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984), the First Circuit must defer to the BIA’s interpretation of INA § 236(c) if the statutory provision is ambiguous and the BIA’s interpretation of that ambiguous provision is reasonable. Saysana, No. 09-1179, slip op. at 9-10.

The First Circuit determined that INA § 236(c) is unambiguous. “In our view, a natural reading of the statutory provision from top to bottom makes clear that the congressional requirement of mandatory detention is addressed to the situation of an alien who is released from custody for one of the enumerated offenses.” Saysana, No. 09-1179, slip op. at 11-12. That is, “the statute contemplates mandatory detention following release from non-DHS custody for an offense specified in the statute, not merely any release from any non-DHS custody.” Saysana, No. 09-1179, slip op. at 22.

Though the First Circuit did not need to address the reasonableness of the Board’s interpretation, it nonetheless did so. Saysana, No. 09-1179, slip op. at 18. The First Circuit determined that the BIA’s interpretation is not reasonable. Saysana, No. 09-1179, slip op. at 18.

Federal district courts laid the groundwork for this decision. Let’s hope that other circuits adopt the First Circuit’s reasoning instead of the BIA’s position.