BIA Backs down from Mandatory Detention: Matter of Garcia Arreola

One of the most brutal and punishingly tools in immigration's arsenal is being able to detain foreign nationals and specifically deeming them as Mandatory Detainees.  After years of adverse decisions, there is some relief in light of repeated Circuit Courts rejecting the Board of Immigration Appeals (BIA) draconian interpretations.

On June 23, 2010, the BIA held in Matter of Garcia Arreola, 25 I&N Dec. 267 (BIA 2010) that " 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."

What was notable is that even the Department of Homeland Security "asks that [the BIA] adopt this more narrow reading of the statutory language."

The BIA was clear: 

"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. "

"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)."