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Question: I have a friend who is in detention and I am being told he cannot get out because of mandatory detention. Can you elaborate what this is and why is he not permitted to exit?

Answer:  After 1996, the Immigration Laws were much more severe, including a very wide based mandatory detention policy. However, and finally, a case has just been issued by the BIA (Board of Immigration Appeals) which softens and narrows the mandatory detention policy.

The basic facts of the case is as follows. 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 and transferred to ICE custody, ICE sought mandatory detention pursuant to INA § 236(c) and Matter of Saysana, the case which originated the mandatory detention policy.

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 during this time, the Saysana case itself was rejected by the First Circuit Court of Appeals.  DHS then changed its position and retreated.  Finally, 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.”

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).

Thus, while there is good news in the issuance of this decision of narrowing the mandatory detention policies, there is work to do and we should continue to fight in the courts and the BIA to get other similarly bad decisions vacated or overruled.

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Mandatory Detention is not so Mandatory