The history and impact of Saysana v. Gillen on mandatory detention in immigration cases

Issue Vol. 12 No. 2 January 2010 By Kerry E. Doyle

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 non-retroactive.8

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 objection.13

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 offense.

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 unreasonable.18

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 Saysana.

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 ways.

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 grow.20

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 continues.


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. 2009).

5.    Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, §303(b)(2) (1996).

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 2000).

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).

11.    Id.

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. 31, 2008).

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 Cir. 2009).

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; Anil Kalhan, Rethinking Immigration Detention, Colum. L. Rev. Sidebar, Vol. 110, (forthcoming 2010) available at

The Author

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.