BIA: Mandatory detention applies only if released from custody for allegedly removable offense after October 8, 1998

By University of Denver Sturm College of Law

Jun 28, 2010

In a published decision released last week, the BIA held that the mandatory detention provision, INA § 236(c), applies only to individuals released from non-DHS custody after October 8, 1998 and only if that custody was for an offense listed in § 236(c)(1)(A)-(D). Matter of Garcia Arreola, 25 I&N Dec. 267 (BIA 2010) (Adkins-Blanch, Guendelsberger, and King). Board member Adkins-Blanch wrote the decision; King is a temporary Board member.

This case involved an individual who was detained after being arrested and charged with assault on June 8, 2002 and June 30, 2009. Both charges were dismissed. Matter of Garcia Arreola, 25 I&N Dec. at 268. Without a conviction these charges could not serve as the basis of removal.

Instead, DHS placed Garcia Arreola in removal proceedings as a result of a March 31, 1989 conviction for possession of a controlled substance. Matter of Garcia Arreola, 25 I&N Dec. at 268. 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. TPCR refers to the Transition Period Custody Rules that expired on October 8, 1998. TPCR essentially gave the federal government two years to implement § 236(c). Under Matter of Saysana, a person was mandatorily detained even if released from custody after October 8, 1998 for something that could not serve as the basis of removable—for example, an arrest that did not turn into a conviction or a conviction for a non-removable offense—so long as there existed a removable offense at any time.

The federal courts never embraced Matter of Saysana. As the BIA acknowledged in Matter of Garcia Arreola, the federal courts nearly uniformly rejected Matter of Saysana. Matter of Garcia Arreola, 25 I&N Dec. at 268. It appears that DHS eventually came to dislike Matter of Saysana as well. According to the Matter of Garcia Arreola opinion, “DHS asks that we adopt this more narrow reading of the statutory language.” Matter of Garcia Arreola, 25 I&N Dec. at 271. I have not been able to track down the DHS brief so I have to take the Board’s word on this.

Likely influenced by overwhelming repudiation of Matter of Saysana, the BIA has now rejected that analysis too. In the Board’s words, “we now withdraw from Matter of Saysana…and now hold that section 236(c) of the Act requires mandatory detention of a criminal alien only if he or she is released from non-DHS custody after the expiration of the TPCR and only where there has been a post-TPCR release that is directly tied to the basis for detention under sections 236(c)(1)(A)-(D) of the Act.” Matter of Garcia Arreola, 25 I&N Dec. at 269.

In effect, this means that the mandatory detention provision only applies to a person who is a) released from criminal custody after October 8, 1998 and b) only if the person was in custody at this time for an offense that is listed in § 236(c). Section 236(c) in turn references any offense included in §§ 212(a)(2), 237(a)(2)(A)(ii), 237(a)(2)(A)(iii), 237(a)(2)(B), 237(a)(2)(C), 237(a)(2)(D), 237(a)(2)(A)(i) if the person received a term of imprisonment of at least one year, 212(a)(3)(B), or 237(a)(4)(B).

Since Garcia Arreola was in custody as a result of the assault charges that were dismissed and that therefore could not constitute offenses listed in § 236(c), the mandatory detention provision does not apply to him.