Mandatory detention was ushered into being by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA").1 IIRIRA added sections to the Immigration
and Nationality Act ("INA") requiring the detention of certain
non-U.S. citizens who meet particular criteria - mainly certain
types of convictions or persons who have engaged in terrorist
activities - during the pendancy of their immigration deportation
court proceedings without release or access to a bond hearing
before an immigration judge.2
Following the passage of this law, mandatory detention as a
concept was challenged, but upheld as constitutional by the Supreme
Court in Demore v. Kim.3 Nonetheless, the
actual application of the mandatory detention provision by
Immigration and Customs Enforcement ("ICE") continues to be
challenged on various grounds and under various theories.
Saysana v. Gillen4 was the culmination of a
major challenge to ICE's over-broad interpretation of the mandatory
detention statute when the government's interpretation of part of
the mandatory detention statute was struck down.
In 1996, IIRIRA §303(b)(2) established the effective date for
mandatory detention and created the Transitional Period Custody
Rules ("TPCR") to govern in the interim.5 The TPCR
expired Oct. 8, 1998. Therefore, anyone released from custody prior
to the expiration date would be unaffected by the new mandatory
detention law, regardless of the type of conviction they had or the
criminal behavior they had engaged in.6 The Board of
Immigration Appeals ("BIA") generally upheld the non-retroactive
nature of the mandatory detention statute regarding the TPCR in two
published cases in 1999 and 2000.7 Additionally, a
memorandum from legacy-Immigration and Naturalization Service
("INS") from July 1999, known as the "Pearson Memo," established
the immigration service's policy on mandatory detention under the
newly passed law and clearly defined the new statute as
Despite the BIA's and the then-INS' pronouncement that the new
mandatory detention law was non-retroactive, a few years later, ICE
started applying mandatory detention to a broader group of people
in contradiction to the earlier INS Pearson Memo. By 2005 or 2006,
immigration court after immigration court across the country saw
the government arguing that persons who had a conviction that would
have subjected them to mandatory detention under the new INA
§§236(c)(1)(A)-(D),9 but for the fact that he
or she had been released prior to the expiration of the
TCPR on Oct. 8, 1998, could nonetheless be subjected to
mandatory detention if they had another arrest and release from
custody unrelated to the enumerated offense after Oct. 8,
1998. The government began eagerly arguing for mandatory detention
for persons in this group, even if the post-Oct. 8, 1998, arrest
and release did not result in a conviction, or even if it was a
mistaken or unconstitutional arrest. In other words, ICE began
bootstrapping the pre-Oct. 8, 1998, criminal conviction on to any
post-TPCR detention or arrest and release in order to enforce
mandatory detention against a broader group of persons.
Ironically, this very group ICE wanted to keep in mandatory
detention had some of the strongest claims for relief and release
on bond, because by definition, by 2005 or 2006, they would have
been in the United States more than 12 years in order to have a
pre-October 1998 conviction and a post-1998 arrest and release, and
therefore, be before the immigration court during the change of
policy by the government. In fact, one of the two plaintiffs from
the first habeas corpus case filed in the Massachusetts
District Court challenging the government's broader interpretation
of mandatory detention in March 2007 not only won his case for
relief in the immigration court, but is now a U.S.
citizen.10 The other plaintiff was granted withholding
of removal as a person who would more likely than not face
persecution upon return to his home country before the federal
judge could rule on the case, thus causing the case to moot
out.11 This was another challenge we faced with this
group - many of them won their cases in immigration court before we
could get rulings from the federal district court.
What followed from that first case in 2007 was a long line of
successful individual habeas corpus filings in
Massachusetts as well as Southern District of New York, Middle
District of Pennsylvania, and districts of New Jersey and
Pennsylvania.12 In the midst of this, Houng Saysana was
arrested and placed in removal or deportation proceedings with an
immigration judge. During a bond reconsideration hearing, he was
granted bond by the immigration judge over the government's
The government appealed the immigration judge's decision, but
meanwhile, Saysana was released from custody. On Aug. 27, 2008, the
Board of Immigration Appeals overturned the immigration judge's
bond decision, and in a precedent case binding on all immigration
courts nationwide, found that the government's interpretation
should be adopted and that a pre-1998 offense enumerated in INA
§§236(c)(A)-(D) combined with a post-October 1998 release from
criminal custody, even on an unrelated matter, could be the basis
for mandatory detention.14
In Saysana's case, he had a pre-1998 conviction for indecent
assault and battery with a five-year suspended sentence. With this
conviction and sentence, pursuant to INA §236(c)(B), he would be
subject to mandatory detention as an aggravated felon,15
except that he was released from custody prior to the expiration of
the TPCR and therefore should have been exempt. He was arrested
again after October 1998 and charged with failure to register as a
sex offender in 2005. This charge was dismissed, but his "release"
from that arrest arguably triggered mandatory detention because he
was "released" from custody after 1998 and also had an enumerated
A little more than a month later, in early October 2008, Saysana
was arrested by ICE and detained once again. A habeas
corpus action was filed on his behalf in the Massachusetts
District Court. Following a hearing with District Judge Stearns in
November 2009, the judge issued a decision ordering an
individualized bond hearing for Saysana and rejecting the
government's arguments and findings in Matter of
Saysana.16 Saysana was granted bond again by the
immigration judge and released.
Meanwhile, the government appealed Stearn's decision to the
First Circuit Court of Appeals, the first court of appeals to
review the Saysana issue. On Dec. 22, 2009, the First
Circuit issued its decision overturning Matter of Saysana
in the circuit and finding that the statute was clear on its face
and that a person must be released after October 1998 as a result
of an arrest for an offense enumerated in INA §§236(c)(1)(A)-(D) in
order for a person to be subjected to mandatory
detention.17 The court also found that even if the
statute were not clear on its face that the release from custody
must relate to the enumerated offense, the impact of the
government's interpretation of the statute in a manner to link
pre-TPCR convictions with post-TPCR releases from custody was
In light of the success overturning the government's position
and the BIA's precedent in the First Circuit Court of Appeals,
combined with numerous district court wins throughout the country,
ICE now appears poised to reverse its legal position outside the
First Circuit as well. Unfortunately, because district court
habeas corpus decisions apply only in individual cases,
the BIA's decision in Matter of Saysana is still in effect outside
the First Circuit. Uniform national policy will require a reversal
by ICE itself in applying the law, or more likely, a new precedent
decision by the BIA overturning Matter of Saysana.
Recently, it appears that both have occurred. A case currently
pending at the BIA, which raises the Saysana issues, has
given the board a chance to reconsider its position and
re-establish uniform law that properly narrows the mandatory
detention statute, rather than impermissibly expanding it. The
Amicus Committee of The American Immigration Lawyers Association
(AILA) recently contributed an amicus brief in the pending case of
Luis Felipe Garcia-Arreola. Garcia-Arreola was granted a bond by
the immigration judge, but the government appealed the decision,
stating that his bond was granted in violation of Matter of
After the First Circuit's decision, in a very unusual step, the
government appears to have recognized its untenable argument in
attempting to uphold Matter of Saysana. David Martin,
principal deputy general counsel of the Department of Homeland
Security, sent a letter to the board in Garcia-Arreola's case
asking the immigration appeal court to reconsider Matter of
Saysana. AILA's amicus brief applauded the government's new
position, but urged the board to reconsider its approach to
mandatory detention in general, not just in Matter of
Saysana.19 The board was asked to narrow its
interpretation of the mandatory detention statute in additional
It is a hopeful time that the success in the First Circuit and
the various district courts has forced the government to take a
narrower approach to mandatory detention. The government did not do
it willingly, however; they were forced into the position. These
types of challenges to mandatory detention are particularly
important at a time in which the number of persons detained by ICE
continues to rise and the number of stories regarding people being
lost or mistreated in the immigration detention maze
Unfortunately, immigration detention policies and practices have
existed in a dark corner of our society, invisible to all but a few
who practice law on behalf of detained immigrants regularly. Even
then, unpleasant surprises can lurk in the vast network of
immigration detention centers nationwide. The best approach to
avoid abuses in detention is to keep people out of detention in the
first place. Saysana v. Gillen has gone a little way in
reducing the immigration prison population, but the fight
1. Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat.
3009, 3009-546 (1996).
2. 8 U.S.C. § 1226(a), (c) (2006).
3. 538 U.S. 510 (2003).
4. Saysana v. Gillen, 590 F.3d 7 (1st Cir.
5. Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, §303(b)(2)
6. 8 U.S.C. §1226(c).
7. Matter of Adeniji, 22 I&N Dec. 1102,
1111 (BIA 1999); Matter of West, 22 I&N Dec. 1405, 1407 (BIA
8. Michael Pearson, Field Guidelines for
Applying Revised Interpretation of Mandatory Custody Provisions,
U.S. Department of Justice, Immigration and Naturalization Service
(July 12, 1999) [hereinafter Pearson Memo]).
9. 8 U.S.C. §§1226(c)(1)(A)-(D).
10. Parinejad v. Chadbourne, 501 F. Supp. 2d
280, 283 (D.Mass. 2007) (dismissing case as moot).
12. See Park v. Hendricks, 2009 WL
3818084 at *5 (D.N.J. Nov. 12, 2009); Ortiz v. Napolitano, 2009 WL
3353029 at *3-4 (D. Ariz. Oct 19, 2009); Mitchell v. Orsino, 2009
U.S. Dist. LEXIS 71908 at *9 (S.D.N.Y. Aug. 13, 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); Saysana v.
Gillen, 2008 U.S. Dist. LEXIS 106633 at *2 (D. Mass. Dec. 1, 2008);
Thomas v. Hogan, 2008 U.S. Dist. LEXIS 88169 at *5 (M.D. Pa. Oct.
13. See Saysana v. Gillen, 590 F.3d
7, 9 (1st Cir. 2009).
14. Matter of Saysana, 24 I.&N. Dec. 602,
607 (BIA 2008).
15. 8 U.S.C., §1226(c) (2006).
16. Saysana v. Gillen, 2008 U.S. Dist. LEXIS
106633 at *2 (D. Mass. Dec. 1, 2008) (citing Matter of Saysana, 24
I.&N. Dec. 602 (BIA 2008)).
17. Saysana v. Gillen, 590 F.3d 7, 18 (1st
18. Id. at 14-15.
19. Jeremy McKinney, Matter of Saysana
Revisited: AILA Amicus Committee Files Brief to BIA, Immigration Slip
Opinion, (Mar. 17, 2010)
20. See e.g., Elliot Spagat &
Robert Jablon, Two Mentally Disabled Immigrants Held for Years
in California Detention Centers are Freed, Star Tribune (Minn.),
March 31, 2010 available at http://www.startribune.com/nation/89621107.html;
Anil Kalhan, Rethinking Immigration Detention, Colum. L. Rev. Sidebar,
Vol. 110, (forthcoming 2010) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1556867.
Kerry E. Doyle is a partner with Graves and
Doyle in Boston and has practiced immigration law for 17 years. She
is a past chair of the American Immigration Lawyers Association's
New England chapter, and an adjunct professor at Suffolk University
School of Law. She led the small group of attorneys who brought
the Saysana challenges into federal court.