Written by: JMcKinney

For years, practitioners in North and South Carolina have been the victims of a forced marriage with the Atlanta Immigration Court and the 11th Circuit Court of Appeals.  In late 2008, we finally got our own Immigration Court in Charlotte, NC.  Yesterday, the BIA issued its first precedent decision originating from the Charlotte Immigration Court.  And it was a big one…

Luis Felipe Garcia-Arreola is a long-time permanent resident with a drug conviction.  This conviction makes Mr. Garcia-Arreola deportable but eligible for 212(c) relief.  After getting arrested on a domestic assault (which was dismissed by the State of NC) and transferred to ICE custody, ICE sought mandatory detention pursuant to INA § 236(c) and Matter of Saysana.  

In a brave decision, Immigration Judge Teresa Holmes-Simmons distinguished Saysana with the facts of Mr. Garcia Arreola’s case and recognized that Saysana had been universally rejected by Federal District Courts.  DHS appealed and AILA Amicus Committee stepped in to provide amicus support.  During this time, the Saysana case itself was rejected by the First Circuit Court of Appeals.  DHS then changed its position and retreated.  Yesterday, the BIA overruled Saysana!

The good news:  the holding specifically states that mandatory detention applies where there has been a (a) release (b) from non-DHS custody (c) after October 8, 1998, (d) that is “directly tied” to the basis for detention under INA §§ 236(c)(1)(A)–(D). 

The bad news:  Primarily because it was unaddressed by the parties, the Board left standing another horrible mandatory detention decision – Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), a deeply-divided Board decision which concluded mandatory detention applies even if ICE fails to assume custody of an alien “when released.”  Our work is not done.  The AILA Amicus Committee believes returning to the plain language of the statute means not only overruling Matter of Saysana, but also Rojas.  Like Saysana, Rojas has led to a mountain of litigation and the inconsistent application of our mandatory detention statute nationwide. 

The Board’s “resort to contortions” in Rojas and Saysana has only resulted in creating more chaos in our immigration detention system and wasted hours and resources on needless litigation, all in an effort to prevent an Immigration Judge from exercising discretion in bond redetermination decisions.  See Rojas, 23 I&N Dec. at 130 (dissent).   Our committee celebrates the Board’s decision yesterday in Garcia-Arreola, but also looks forward to fully restoring the exercise of discretion in Immigration Court.