Cite as 25 I&N Dec. 267 (BIA 2010) Interim Decision #3685
1 We acknowledge the very helpful briefs submitted by the parties and by the amicus curiae,
representing the American Immigration Lawyers Association.
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Matter of Luis Felipe GARCIA ARREOLA, Respondent
File A038 829 033 – Charlotte, North Carolina
Decided June 23, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c) (2006),
requires mandatory detention of a criminal alien only if he or she is released from non-DHS
custody after the expiration of the Transition Period Custody Rules (“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 Saysana, 24 I&N Dec. 602 (BIA 2008),
overruled; Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999), modified.
FOR RESPONDENT: Gerard M. Chapman, Esquire, Greensboro, North Carolina
AMICUS CURIAE: Stephen W. Manning, Esquire, Portland, Oregon1
FOR THE DEPARTMENT OF HOMELAND SECURITY: David A. Martin, Principal
Deputy General Counsel
BEFORE: Board Panel: ADKINS-BLANCH and GUENDELSBERGER, Board Members;
KING, Temporary Board Member.
ADKINS-BLANCH, Board Member:
In a decision dated July 8, 2009, an Immigration Judge determined that the
respondent was not subject to mandatory detention under section 236(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1226(c) (2006), granted the
respondent’s request for a change in custody status, and ordered his release
from custody of the Department of Homeland Security (“DHS”) upon posting
a bond in the amount of $3,000. The DHS has appealed from that decision.
The record will be remanded to the Immigration Judge.Cite as 25 I&N Dec. 267 (BIA 2010) Interim Decision #3685
2 The implementation of section 303(b)(2) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546,
3009-586 (“IIRIRA”), which was codified in section 236(c) of the Act, was deferred for
(continued…)
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I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Mexico, entered the United States
on November 17, 1983, as an immigrant. He is in removal proceedings,
having been charged with removability under section 237(a)(2)(B)(i) of the
Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2006), based on his March 31, 1989,
conviction for possession of a controlled substance in violation of section
11350(a) of the California Health and Safety Code, for which he was
sentenced to a term of imprisonment of 365 days. The respondent does not
contend that the DHS is substantially unlikely to prevail on the charges
of removability. See Matter of Joseph, 22 I&N Dec. 799 (BIA 1999).
The respondent was arrested and charged with the crime of assault
of a female in North Carolina on June 8, 2002, and again on June 30, 2009.
These charges were ultimately dismissed. On July 2, 2009, the DHS lodged
a detainer against the respondent based on his removability under
section 237(a)(2)(B)(i) of the Act. Upon the conclusion of the criminal
proceedings related to his State charge, the respondent was transferred into
DHS custody and was held in mandatory detention under section 236(c) of the
Act.
On appeal, the DHS initially argued that the Immigration Judge erred
by ignoring Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), in favor
of a district court decision from outside the jurisdiction in which this case
arises. In addition, the DHS argued that the Immigration Judge erred
in finding the facts of this case distinguishable from Matter of Saysana.
In supplemental briefing the DHS now requests that we revisit our holding
in Matter of Saysana in light of the Federal judiciary’s near uniform
rejection of our interpretation of the mandatory detention provision in that
decision. On this point, the parties appear to be in agreement. We review
de novo this question of law. See 8 C.F.R. § 1003.1(d)(3)(ii) (2010); see also
Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).
II. ISSUE
The principal issue presented on appeal is whether a post-Transition Period
Custody Rules (“TPCR”) release from non-DHS custody must be directly tied
to the basis for detention in sections 236(c)(1)(A)–(D) of the Act to implicate
the mandatory detention provision of the statute.2
We previously held thatCite as 25 I&N Dec. 267 (BIA 2010) Interim Decision #3685
(…continued)
2 years, during which time detention was governed by section 303(b)(3) of the IIRIRA, 110
Stat. at 3009-586, otherwise known as the Transition Period Custody Rules. The TPCR
expired on October 8, 1998, and the mandatory detention provision of section 236(c) of the
Act became effective.
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section 236(c) requires mandatory detention of a criminal alien only
if he or she is released from non-DHS custody after October 8, 1998, the last
day that the TPCR were in effect. See Matter of Adeniji, 22 I&N Dec. 1102
(BIA 1999). There is no dispute that the alien in this case was released from
non-DHS custody—that is, the alien was released from criminal custody
relating to his 2002 and 2009 criminal charges in North Carolina—after the
expiration of the TPCR.
In Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), we explained that the
mandatory detention provision of section 236(c) of the Act is implicated
by a post-TPCR release from non-DHS custody even if the alien is not
immediately taken into custody by the DHS. That holding is not in dispute
in this case. Most recently, in Matter of Saysana, we held 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. As explained below, we now withdraw from
Matter of Saysana. Further, we modify our decision in Matter of Adeniji 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.
III. ANALYSIS
The regulations provide that an Immigration Judge has no authority
to redetermine the conditions of custody of an alien in removal proceedings
subject to section 236(c)(1) of the Act. See 8 C.F.R. § 1003.19(h)(2)(i)(D)
(2010). As relevant here, the statute requires that the Attorney General must
take into custody any alien who is removable by reason of having committed
any offense covered in section 237(a)(2)(B) of the Act, when the alien
is released, without regard to whether the alien is released on parole,
supervised release, or probation, and without regard to whether the alien may
be arrested or imprisoned again for the same offense. See section 236(c)(1)(B)
of the Act. The respondent is charged with removability under section
237(a)(2)(B)(i) of the Act. Cite as 25 I&N Dec. 267 (BIA 2010) Interim Decision #3685
3 The following are representative of the district court cases cited in the DHS brief. See, e.g.,
Ortiz v. Napolitano, 667 F. Supp. 2d 1108, 1115 (D. Ariz. 2009); Garcia v. Shanahan, 615
F. Supp. 2d 175, 182 (S.D.N.Y. 2009); Oscar v. Gillen, 595 F. Supp. 2d 166, 170 (D. Mass.
2009); Duy Tho Hy v. Gillen, 588 F. Supp. 2d 122, 127 (D. Mass. 2008); Burns v. Weber,
No. Civ. 09-5119 (JLL), 2010 WL 276229, at *5 (D.N.J. Jan. 19, 2010); Hyung Woo Park
v. Hendricks, No. Civ. 09-4909 (JLL), 2009 WL 3818084, at *5-6 (D.N.J. Nov. 12, 2009);
Mitchell v. Orsino, No. 09 Civ. 7029 (PGG), 2009 WL 2474709, at *3 (S.D.N.Y. Aug. 13,
2009); see also, e.g., Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221, 1229-30 (W.D. Wash.
2004); Pastor-Camarena v. Smith, 977 F. Supp. 1415, 1417-18 (W.D. Wash. 1997);
Thomas v. Hogan, No. 1:08-CV-0417, 2008 WL 4793739, at *3 (M.D. Pa. Oct. 31, 2008);
Cox v. Monica, No. 1:07-CV-0534, 2007 WL 1804335, at *5 (M.D. Pa. June 20, 2007).
270
As noted in the DHS and amicus curiae briefs, the United States Court
of Appeals for the First Circuit and a number of United States district courts
have disagreed with our holding in Matter of Saysana. See Saysana v. Gillen,
590 F.3d 7 (1st Cir. 2009).3
Further, we acknowledge the consequent lack
of clear guidance and uniformity in the interpretation of the mandatory
detention provision and the difficulty this presents all parties, but particularly
the DHS in its duty to administer this specific provision of the Act. The DHS
now urges us to interpret the statute to regard mandatory detention under
section 236(c)(1) of the Act as arising from a post-TPCR “release” when the
release is from custody based on an underlying criminal conviction that gives
rise to the qualifying inadmissibility or deportability set out in sections
236(c)(1)(A)–(D) of the Act.
As previously noted, we held in Matter of Saysana that any post-TPCR
release from non-DHS custody is sufficient to implicate the mandatory
detention provision of section 236(c) of the Act, regardless of whether the
release was from criminal custody for a conviction that rendered the alien
inadmissible or deportable. However, our holding was challenged in the
United States District Court for the District of Massachusetts and was
ultimately rejected by the First Circuit. Saysana v. Gillen, 590 F.3d 7; Saysana
v. Gillen, No. CIV.A.08-11749-RGS, 2008 WL 5484553 (D. Mass. Dec. 1,
2008).
The First Circuit reasoned that only aliens released from non-DHS custody
subsequent to the expiration of the TPCR are subject to the mandatory
detention provision of section 236(c) of the Act. In this regard, the First
Circuit’s decision appears to be in agreement with our holding in Matter
of Adeniji, 22 I&N Dec. 1102. However, the First Circuit decision tied this
requirement—that is, the requirement that only aliens released from non-DHS
custody subsequent to the expiration of the TPCR are subject to the mandatory
detention provision of section 236(c) of the Act—to the “when . . . released”
language of section 236(c)(1) of the Act. Cite as 25 I&N Dec. 267 (BIA 2010) Interim Decision #3685
4 We therefore do not recede from Matter of Rojas, 23 I&N Dec. 117.
271
Specifically, the First Circuit held that when read in context, the “when . . .
released” language of section 236(c)(1) of the Act unambiguously mandates
detention only for aliens released from non-DHS custody after October 8,
1998, for the offenses enumerated in sections 236(c)(1)(A)–(D) of the Act.
See Saysana v. Gillen, 590 F.3d at 16, 18. However, we understand this
requirement—which can be likened to an effective date for the post-TPCR
mandatory custody regime—to derive from the “released after” language
of section 303(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.
3009-546, 3009-586 (“IIRIRA”), which does not independently appear within
the Act. On this point, we depart from the First Circuit’s analysis, but for
purposes of this decision, we nonetheless arrive at the same conclusion.4

As we discussed in Matter of Saysana, 24 I&N Dec. at 604, the “released”
language of section 236(c)(1) of the Act is not expressly tied to any other
language that would clarify whether it refers to release from criminal custody,
DHS custody, or some other form of detention. For that reason, we do not
share the view that the language in section 236(c) of the Act is clear and
unambiguous on its face. That being said, neither do we find the view that the
“released” language should be read more narrowly than we interpreted
it in Matter of Saysana to be unreasonable, particularly in light of the fact that
such interpretation has been taken by nearly all the Federal courts that have
addressed this issue, by the respondent, and by the amicus curiae. And now
the DHS asks that we adopt this more narrow reading of the statutory
language.
Accordingly, we now hold that mandatory detention under section 236(c)
of the Act is addressed to the situation of an alien who is released from custody
for one of the offenses enumerated in the Act. That is, a post-TPCR “release”
from non-DHS custody must be directly tied to the basis for detention under
sections 236(c)(1)(A)–(D) of the Act in order to implicate the mandatory
detention provision of section 236(c). As the respondent’s 2002 and 2009
releases from non-DHS custody resulting from his assault crimes were not
offenses under sections 236(c)(1)(A)–(D), the respondent is not subject
to mandatory detention under section 236(c)(1).
Contrary to the respondent’s argument in his supplemental brief, we find
that the DHS’s alternative arguments regarding whether the respondent
warrants release from custody under section 236(a) of the Act were adequately
preserved. These arguments were raised in the DHS’s Notice of Appeal and
in subsequent briefing. In this regard, we understand the Immigration Judge
to have determined that the respondent met his burden of proof and
demonstrated that he is not a danger to the community and that a $3000 bondCite as 25 I&N Dec. 267 (BIA 2010) Interim Decision #3685
272
was an amount reasonable to ensure his appearance at future hearings. See
section 236(a) of the Act; Matter of Urena, 25 I&N Dec. 140 (BIA 2009)
(holding that only if an alien has established that he would not pose a danger
to property or persons should an Immigration Judge decide the amount
of bond necessary to ensure the alien’s presence at proceedings to remove him
from the United States); Matter of Guerra, 24 I&N Dec. 37 (BIA 2006);
Matter of Adeniji, 22 I&N Dec. 1102; Matter of Drysdale, 20 I&N Dec. 815
(BIA 1994); 8 C.F.R. § 1236.1(c)(3) (2010).
However, given the evidence of the respondent’s lengthy criminal history,
which spans more than 20 years and includes three drug convictions and
multiple arrests for various criminal conduct, we appreciate the DHS’s concern
that the respondent may present a danger to the community. See
Matter of Guerra, 24 I&N Dec. at 40 (affording the Immigration Judge broad
discretion in deciding the factors that may be considered, including evidence
in the record of serious criminal conduct, even where such conduct has not
resulted in a conviction). In light of the foregoing, the record will
be remanded to the Immigration Judge to more fully address whether the
respondent has rebutted the presumption that he is a danger to the community.
See Matter of Urena, 25 I&N Dec. 140. On remand, the Immigration Judge
should conduct a new bond hearing under section 236(a) of the Act and issue
a new decision.
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new
decision.