SAYSANA v. Gillen

United States Court of Appeals
For the First Circuit

No. 09-1179

HOUNG SAYSANA,

Petitioner, Appellee,

v.

BRIAN H. GILLEN, IN HIS CAPACITY AS SUPERINTENDENT OF
PLYMOUTH COUNTY CORRECTIONAL FACILITY,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard Stearns, U.S. District Judge]

Before
Howard, Ripple,* and Selya, Circuit Judges.

Theodore W. Atkinson, Trial Attorney, Office of Immigration
Litigation, with whom Michael F. Hertz, Acting Assistant Attorney
General, Civil Division, David J. Kline, Director, District Court
Section, Office of Immigration Litigation and Gjon Juncaj, Senior
Litigation Counsel, United States Justice Department, were on
brief, for appellant.
Kerry E. Doyle, with whom Graves & Doyle, Jeanette Kain, and
Kaplan, O'Sullivan & Friedman, were on brief, for appellee.

December 22, 2009

*
Of the Seventh Circuit, sitting by designation.
 RIPPLE, Circuit Judge. In 2007, Houng Saysana was taken

into custody by Immigration and Customs Enforcement (“ICE”) and

held without bond. After agency proceedings in which bond was

again denied, he filed this petition for habeas corpus in the

district court, challenging the conclusion of the Board of

Immigration Appeals (“BIA” or “Board”) that he is subject to the

mandatory detention provision in 8 U.S.C. § 1226(c). The district

court concluded that the Board had misinterpreted the statute, and

it granted the writ. The Government timely appealed. Because we

conclude that the Government has adopted an interpretation contrary

to the plain meaning of the statute, we affirm the judgment of the

district court. We also hold, in the alternative, that, even if

the statute were ambiguous, the position of the Government is not

a reasonable one.

I. BACKGROUND

A. Facts and Agency Proceedings

Mr. Saysana is a native and citizen of Laos who entered

the United States as a refugee in 1980. In 1990, he was convicted

of indecent assault and battery in Massachusetts state court. He

was sentenced to five years’ imprisonment, three months of which

were served. He was released in 1991.

In 2005, Mr. Saysana again was arrested, this time for

failing to register as a sex offender as required by Massachusetts

law because of his 1990 offense. The charge later was dismissed,

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and Mr. Saysana was released from state custody.

In 2007, ICE took Mr. Saysana into custody pursuant to 8

U.S.C. § 1226(c), and held him without bond. On the same day, the

Department of Homeland Security (“DHS”) initiated removal

proceedings, contending that Mr. Saysana’s 1990 conviction

qualified as an aggravated felony crime of violence, see 8 U.S.C.

§ 1101(a)(43)(F), and rendered him removable, see id. §

1227(a)(2)(A)(iii).1 The IJ held a bond redetermination hearing

and ordered Mr. Saysana released on $3500 bond. Mr. Saysana posted

the bond.

The DHS appealed the bond decision to the BIA. In its

precedent decision, Matter of Saysana, 24 I & N Dec. 602 (BIA

2008), the Board concluded that the mandatory detention provision

of 8 U.S.C. § 1226(c) applied to any alien with a qualifying

conviction who was “released” from any criminal custody after the

effective date of the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009,

3009-546 (codified as amended in scattered sections of 8 U.S.C.),

here October 8, 1998. See infra note 2. In the Board’s view,

because Mr. Saysana had been released from state custody in 2005,

he was subject to the mandatory detention requirement, even though

the charge that formed the basis for his 2005 arrest, failure to

1
8 U.S.C. § 1227(a)(2)(A)(iii) provides: “Any alien who is
convicted of an aggravated felony at any time after admission is
deportable.”

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register as a sex offender, was not the crime that formed the basis

for his removal proceedings. After the BIA reversed the IJ’s bond

decision, ICE took Mr. Saysana back into custody. Mr. Saysana then

filed a petition for a writ of habeas corpus.

B. Opinion of the District Court

The district court concluded that the Board’s

interpretation of § 1226(c) was erroneous:

This court does not agree with the Board of
Immigration Appeals’ (BIA) interpretation of §
1226(c), as applied to petitioner’s case. I
find Chief Judge Kane’s decision in Thomas v.
Hogan, [No. 1:08-CV-0417,] 2008 WL 4793739
(M.D. Pa. Oct. 31, 2008), factually analogous
and persuasive. I adopt her reasoning as to
why the mandatory detention provision of
IIRIRA does not apply to aliens released from
custody in circumstances similar to those of
petitioner.

Order of Dec. 1, 2008 at 1-2 (internal citation omitted). The

Thomas decision cited by the court had relied on “a significant

body of case law” holding that the Board’s position is contrary to

the plain meaning of the statute. 2008 WL 4793739, at *4. The

district court in this case therefore granted the writ and remanded

to ICE with instructions to hold an individualized bond hearing

within ten days. The Government now appeals, urging us to accept

the agency construction of the statute.

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II. DISCUSSION

At the heart of this appeal is an interpretation of the

mandatory detention provision set forth at 8 U.S.C. § 1226(c).2

Section 1226(c), which is not retroactive, see IIRIRA § 303(b)(2)

(stating that the 1996 amendments to the detention provisions apply

to aliens “released after” the effective date, subject to statutory

extensions of time), is part of a provision that addresses the

apprehension and detention of aliens. It states, in relevant

part:

§ 1226. Apprehension and detention of aliens

(a) Arrest, detention, and release

On a warrant issued by the Attorney General,
an alien may be arrested and detained pending
a decision on whether the alien is to be
removed from the United States. Except as
provided in subsection (c) of this section and
pending such decision, the Attorney General--

(1) may continue to detain the arrested alien;
and

(2) may release the alien on--

2
In 1996, Congress passed IIRIRA. Pub. L. No. 104-28, 110
Stat. 3009-546. IIRIRA contains a mandatory detention provision,
§ 236(c) of the Immigration and Nationality Act (“INA”), codified
at 8 U.S.C. § 1226(c). Implementation of Section 1226(c) was
deferred for two years, during which time detention was governed by
§ 303(b)(3), otherwise known as the Transition Period Custody Rules
(“TPCR”). The TPCR provided for individualized bond hearings for
some aliens deportable for having committed certain crimes; the
immigration judge could set bond after finding that the alien was
not a danger to the community and was likely to appear for future
proceedings. The TPCR expired on October 8, 1998, and the
mandatory detention provision of 8 U.S.C. § 1226(c) became
effective.

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 (A) bond of at least $1,500 with security
approved by, and containing conditions
prescribed by, the Attorney General; or

(B) conditional parole; but

(3) may not provide the alien with work
authorization (including an “employment
authorized” endorsement or other appropriate
work permit), unless the alien is lawfully
admitted for permanent residence or otherwise
would (without regard to removal proceedings)
be provided such authorization.

. . .

(c) Detention of criminal aliens

(1) Custody

The Attorney General shall take into custody
any alien who--

(A) is inadmissible by reason of having
committed any offense covered in section
1182(a)(2) of this title,

(B) is deportable by reason of having
committed any offense covered in section
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or
(D) of this title,

(C) is deportable under section
1227(a)(2)(A)(i) of this title on the
basis of an offense for which the alien
has been sentence[d] to a term of
imprisonment of at least 1 year, or

(D) is inadmissible under section
1182(a)(3)(B) of this title or deportable
under section 1227(a)(4)(B) of this
title,

when the alien is released, without regard to
whether the alien is released on parole,
supervised release, or probation, and without
regard to whether the alien may be arrested or
imprisoned again for the same offense.

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 (2) Release

The Attorney General may release an alien
described in paragraph (1) only if the
Attorney General decides pursuant to section
3521 of Title 18 that release of the alien
from custody is necessary to provide
protection to a witness, a potential witness,
a person cooperating with an investigation
into major criminal activity, or an immediate
family member or close associate of a witness,
potential witness, or person cooperating with
such an investigation, and the alien satisfies
the Attorney General that the alien will not
pose a danger to the safety of other persons
or of property and is likely to appear for any
scheduled proceeding. A decision relating to
such release shall take place in accordance
with a procedure that considers the severity
of the offense committed by the alien.

8 U.S.C. § 1226 (emphasis added).

We must decide whether the mandatory detention provision

applies only when an alien is released from a criminal custody the

basis for which is one of the offenses listed in § 1226(c)(1)(A)-

(D); or, alternatively, whether it applies whenever an alien,

previously convicted of an offense that falls within (c)(1)(A)-(D),

is released from any criminal custody regardless of the reason for

that detention. Resolution of this issue centers on the “when

released” language in § 1226(c).

The BIA adopted the latter interpretation. It reasoned:

[T]he language of the last sentence of
[subsection (c)(1)] does not identify the form
of detention from which an alien must be
released. Rather, we have interpreted the
statute to require that the release be from a
non-DHS custodial setting. A reading of the
statute as a whole does not suggest that

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 Congress intended to further limit the non-DHS
custodial setting to criminal custody pursuant
to a conviction for a crime rendering an alien
removable. Indeed, as we have observed
before, under sections [1226(c)(1)(A) and
(D)], an alien need not be convicted of any
offense in order to be removable as charged
and subject to mandatory detention. Requiring
that an alien’s release from criminal custody
be directly tied to the basis for detention
under section [1226](c)(1) would therefore be
inconsistent with Congress’s mandate to take
into custody those aliens who are released
. . ., yet who may never have been in non-DHS
custody because they are inadmissible under
the covered grounds set forth in sections
[1226](c)(1)(A) and (D). Thus, we find that
the language and scope of section [1226(c)(1)]
do not support limiting the non-DHS custodial
setting solely to criminal custody that is
related to, or that arises from, the basis for
detention under that section.

Saysana, 24 I & N Dec. at 605-06 (footnote omitted). In the BIA’s

view, “the purpose of the section is to impose a duty on the DHS to

continue to detain criminal and terrorist aliens pending the

completion of proceedings to remove such aliens from the United

States once they are no longer in the custody of another entity.”

Id. at 606. The BIA observed that “Congress was presumably aware

that aliens may commit multiple offenses and may come into non-DHS

custodial authority in a variety of ways.” Id. The BIA concluded

that it was “illogical to suppose that Congress would not have

wanted to require the DHS to detain a criminal or terrorist alien

as set forth in sections [1226(c)(1)(A)-(D)] pending completion of

proceedings to remove the alien from the United States solely

because the alien had been released from non-DHS custody for an

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additional offense.” Id. (emphasis in original). The BIA also

believed that the history of the provision supported its

interpretation:

Thus, for well over a decade Congress has
expressed through legislation its intent that
criminal and terrorist aliens should
generally, if not always, be detained until
the completion of their immigration
proceedings. The legislation indicates that
Congress views criminal and terrorist aliens
as threats to persons and property in the
United States who should be segregated from
society until a decision can be made regarding
whether they will be allowed to remain in this
country. It further reflects that Congress
views them as poor bail risks who have little
likelihood of relief from removal and who
therefore have little incentive to appear for
their hearings if they are released from
custody, regardless of family and community
ties. While the “released” language of the
IIRIRA limits to manageable proportions the
numbers of such aliens that come into contact
with the DHS, it should not be construed--in
light of the predominant statutory purpose--to
confer any additional substantive restriction
on the categories of aliens that Congress
considered subject to mandatory detention,
beyond the requirement that they have been
released . . . from non-DHS custody.

Id. at 607 (footnote omitted). Thus, the BIA held, “[w]e find that

the language of section [1226(c)(1)] does not support limiting the

non-DHS custodial setting solely to criminal custody tied to the

basis for detention under that section.” Id. at 608.

The ruling of the BIA implicates the holding of the

Supreme Court of the United States in Chevron USA, Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Chevron

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requires us to conduct a two-part inquiry. As we have explained in

Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005):

We first ask whether “Congress has
directly spoken to the precise question at
issue.” Chevron USA, Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842 (1984).
If so, courts, as well as the agency, “must
give effect to the unambiguously expressed
intent of Congress.” Id. at 842-43. As the
Supreme Court has said in the immigration
context:
The judiciary is the final authority on
issues of statutory construction and must
reject administrative constructions which
are contrary to clear congressional
intent. If a court, employing
traditional tools of statutory
construction, ascertains that Congress
had an intention on the precise question
at issue, that intention is the law and
must be given effect.
INS v. Cardoza-Fonseca, 480 U.S. [421,] 447-48
[(1987)] (quoting Chevron USA[,] Inc., 467
U.S. at 843 n.9) (internal quotation marks
omitted). “Chevron [ ] deference to [an
agency’s] statutory interpretation is called
for only when the devices of judicial
construction have been tried and found to
yield no clear sense of congressional intent.”
Gen. Dynamics Land Sys., Inc. v. Cline, 540
U.S. 581, 124 S.Ct. 1236, 1248 (2004).
In determining whether a statute exhibits
Chevron-type ambiguity, and hence warrants
deference to the Attorney General’s
interpretation of the statute, courts look at
both the most natural reading of the language
and the consistency of the “interpretive
clues” Congress provided. Gen. Dynamics Land
Sys., Inc., 124 S. Ct. at 1240, 1248. In
determining the meaning of a statute, our
analysis begins with the language of the
statute. See Leocal v. Ashcroft, 543 U.S. 1,
125 S.Ct. 377, 382 (2004) . . . . “[W]e
construe language in its context and in light
of the terms surrounding it.” Id. Another
“regular interpretive method” is reference to

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 statutory history to see if any “serious
question . . . even about purely textual
ambiguity” is left. Gen. Dynamics Land Sys.,
Inc., 124 S.Ct. at 1248.

Succar, 394 F.3d at 22-23 (parallel citations omitted; alterations

to text in original; emphasis added). If, after applying these

interpretive tools, we conclude that the statute is ambiguous, we

turn to the second question, id. at 23, specifically, “whether the

agency’s answer is based on a permissible construction of the

statute,” Chevron, 467 U.S. at 843. In applying the second step,

we must defer to an agency’s interpretive regulation unless it is

“arbitrary, capricious, or manifestly contrary to the statute.”

Id. at 844.

A. Clarity of Statute

The first step of Chevron requires that we focus on the

statutory language. Following the counsel of Succar, we give the

words of the statute their ordinary meaning unless the context of

the statute suggests otherwise. McCarthy v. Bronson, 500 U.S. 136,

139 (1991). When the plain wording of the statute is clear, that

is the end of the matter. BedRoc Ltd., LLC v. United States, 541

U.S. 176, 183 (2004). We must remember, however, that the “plain

meaning” of a statutory provision is often made clear not only by

the words of the statute but by its structure as well. Alexander

v. Sandoval, 532 U.S. 275, 288 (2001).

In our view, a natural reading of the statutory provision

from top to bottom makes clear that the congressional requirement

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of mandatory detention is addressed to the situation of an alien

who is released from custody for one of the enumerated offenses.

The statutory language embodies the judgment of Congress that such

an individual should not be returned to the community pending

disposition of his removal proceedings. Both the language and the

structure of the statutory provision state this mandate in a clear

and straightforward manner. As explained by one of our colleagues

in the district court in Oscar v. Gillen, 595 F. Supp. 2d 166 (D.

Mass. 2009) (Tauro, J.):

The “when released” provision immediately
follows the list of enumerated offenses,
indicating that the former modifies the
latter. Additionally, § 1226(c) provides that
the alien shall be detained upon release
regardless of whether he is subsequently
arrested for the “same offense,” reinforcing
the notion that the entire clause applies to
the list of enumerated offenses immediately
preceding it.

Id. at 170.

The Government submits, however, that “when released” is

susceptible to another interpretation. The Government believes

that the “released” language must embrace a broader meaning than a

release from custody for an enumerated offense because the statute

requires mandatory detention for individuals who are removable or

inadmissible based on the commission of certain offenses, whether

or not they were convicted of those offenses. See § 1226(c)(1)(A)

& (D) (referring to other portions of the Immigration and

Nationality Act (“INA”) not requiring a conviction); Saysana, 24 I

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& N Dec. at 605 n.3. It elaborates that there are a variety of

“offenses” for which an alien may be inadmissible under 8 U.S.C. §

1182 (and, therefore, subject to mandatory detention under 8 U.S.C.

§ 1226(c)(1)(A)), but “that may never give rise to a formal charge,

let alone an indictment, trial or conviction” (emphasis added).

Appellant’s Br. at 18; see also Saysana, 24 I & N Dec. at 605 &

n.3. “Under these circumstances,” the Government continues,

“aliens who committed these ‘offenses’ would not necessarily be

subject to criminal or other non-DHS custody.” Appellant’s Br. at

18-19. Thus, the Government concludes, because § 1226(c)(1)(A)-(D)

includes “offenses” for which aliens might not be incarcerated,

“when released” must have a broader meaning than the offenses

enumerated in the statute.

We believe that this reading of the statutory language is

a strained one. While it is true that a conviction is not always

a necessary predicate to inadmissibility or removability, see §

1226(c)(1)(A) & (D) (cross-referencing other sections of the

Immigration and Nationality Act not requiring a conviction), the

plain language of the statute does not render the term “when

released” meaningless as applied to these subsections. Individuals

may be “released” in connection with the offenses listed without

any resulting conviction and be subject, therefore, to mandatory

detention, consistent with the statute. For example, an alien

could be arrested and released without charges. That an alien

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might have committed a listed offense but never come into any form

of custody from which “release” triggers mandatory detention does

not justify a reading that attaches the serious consequences of the

statute to a subsequent, otherwise wholly inconsequential, incident

of criminal custody.

A far more natural reading is that the “when released”

language applies to an alien who has been detained criminally for

one of the listed activities. This reading not only relates the

“when released” to the prior language in the subsection, but it

also explains the later use of terms related to criminal detention

and the use of the term “same offense” at the end of subsection

(c)(1).

Indeed, if the reference to “when the alien is released”

is read to encompass any release from any non-DHS custodial setting

after the expiration of the TPCR,3 that phrase is completely

disjointed from the text that precedes and follows it. As we have

noted, the preceding text specifically enumerates offenses relating

to removability; the subsequent reference to the “same offense” is

only sensibly read to relate back to the aforementioned statutorily

listed “offense[s].” Absent a clear direction in the text to read

multiple uses of the same term to carry different meanings, we

3
See supra note 2.

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shall not do so.4 Rather, we shall read the term uniformly

throughout the provision.

The Government acknowledges that it is “certainly

possible to interpret Congress’[s] use of the term ‘for the same

offense’ as referring to the qualifying offense,” but submits that

“it is equally plausible that the term refers simply to the

‘offense’ from whose custody the criminal alien is ‘released.’”

Appellant’s Br. at 20 (emphasis in original). Under the

Government’s reading, the term “same offense” can refer back to any

offense resulting in a “release.” There are two infirmities in

this approach. First, the term “offense,” used in this way, does

not appear in the statute. In essence, the Government’s proposed

reading untethers not only the “when released” language itself, but

also the entire “when released” clause, including its reference to

the “same offense,” from the remainder of the subsection. Second,

the Government must read a separate, intervening event--post-TPCR

non-DHS custody unrelated to the enumerated offenses--into the

statute without any direct language to support such a reading.

This reading transforms an otherwise straightforward statutory

4
See Bailey v. United States, 516 U.S. 137, 146 (1995)
(noting that the term “‘using a firearm’ should not have a
different meaning in” two adjacent subsections of the same statute
(citation omitted)); Gustafson v. Alloyd Co., 513 U.S. 561, 570
(1995) (“[T]he normal rule of statutory construction [is] that
identical words used in different parts of the same act are
intended to have the same meaning.” (internal quotation marks
omitted)).

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command, relating to specific offenses that Congress itself has

identified as warranting special attention, into a mere temporal

triggering mechanism. We see no justification in the language or

structure of the statute for such a transformation.

In sum, we cannot conclude that the Government’s reading

is “equally plausible.” The structure of the section makes the

natural reading of this term refer to the offenses set forth in

detail in subsection (c)(1)(A)-(D).5

Leaving behind textual and structural arguments, the

Government acknowledges that there is no legislative history that

“speaks directly to the issue” of whether “‘when released’ . . .

means only release from criminal incarceration for the underlying

removable offense.” Appellant’s Br. at 21. It nevertheless notes

that one prior version of the mandatory detention provision

required the Attorney General to take the alien into custody “upon

completion of the alien’s sentence for such conviction.” Id.

(quoting the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102

5
As a corollary to this point, the Government questions “how
an alien convicted of and incarcerated for a removable offense
could ever be ‘arrested or imprisoned again for the same offense,’
given the legal concept of double jeopardy under the Constitution.”
Appellant’s Br. at 20. An alien, however, could be out on bond
pending sentencing or could be out of prison on supervised release
or probation and, therefore, be subject to re-arrest and re-
imprisonment for violation of the conditions of his release.
Indeed, the statute itself specifically contemplates these
situations. 8 U.S.C. § 1226(c)(1) (noting that the “release[]” as
a trigger is unaffected by any conditions such as “parole,
supervised release, or probation”).

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Stat. 4181, 4470). The Government suggests that, because Congress

replaced this language, it meant to divorce the custody from the

specific conviction.

We approach all arguments based on legislative history

with significant caution. Strickland v. Comm’r, Maine Dept. of

Human Servs., 48 F.3d 12, 17 (1st Cir. 1995) (noting that, if plain

meaning does not answer an interpretive question, “we next examine

the legislative history, albeit skeptically, in search of an

unmistakable expression of congressional intent” (emphasis added)).

Without citation to any relevant explanation for the change in the

legislative language, we are reluctant to presume that Congress had

such a singular purpose, particularly when other, perhaps more

plausible, explanations for the change are also evident. As one

district court has noted,

In explaining the various passages of IIRIRA,
the legislature stated that mandatory
detention was meant to apply “whenever such an
alien is released from imprisonment,
regardless of the circumstances of the
release.” House Conf. Rpt. No. 104-828 at
210-11 (Sept. 24, 1996). Presumably, with
that comment, the legislature was seeking to
thwart arguments by aliens that because they
were subject to parole or other community
supervision they could not be taken into
immediate immigration detention because that
would result in a violation of their imposed
conditions. The Court is not persuaded that
the legislature was seeking to justify
mandatory immigration custody many months or
even years after an alien had been released
from state custody.

Caseate-Bucco v. Ridge, 317 F. Supp. 2d 1221, 1230 (W.D. Wash.

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2004) (adopting the magistrate judge’s recommendation). In short,

the speculative argument based on legislative history pales in the

face of a very strong argument based on text and structure.

In sum, the Government’s effort to make § 1226(c)(1)

“ambiguous” is strained. Reading the provision as a whole, we

think it is clear that the “when released” language relates to the

listed offenses in subsection (c)(1)(A)-(D).

B. Reasonableness of the BIA’s Interpretation

If we were to conclude that the statute is ambiguous,

Chevron would direct us to defer to the agency’s interpretation,

provided that it is based on a permissible construction of the

statute. 467 U.S. at 843-44; see also Bryson v. Shumway, 308 F.3d

79, 86-87 (1st Cir. 2002) (“If Congress has not spoken on the

precise question at issue, we respect the statutory interpretation

of the federal administrative agency given that interpretative

task, unless the interpretation is unreasonable.”).

We have concluded that the text of the statute is clear.

Consequently, because the “when released” language is unambiguous,

there is nothing for the agency to interpret--no gap for it to

fill--and there is no justification for resorting to agency

interpretation to address an ambiguity. However, even if we were

to conclude that the statute were ambiguous, we could not agree

that the BIA’s interpretation is a reasonable one.

In addition to the grammatical and logical lapses that we

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have discussed earlier, we have additional difficulties with the

agency position. First, the agency’s interpretation would treat

similarly situated individuals differently on the basis of a factor

not logically connected to the mandatory detention provision. An

alien with a conviction identical to Mr. Saysana’s who has not

experienced a post-TPCR release from custody would not, the

Government admits, be subject to mandatory detention. The

Government’s defense of this anomalous result is that it is

“consistent with Congress’[s] longstanding intent to detain certain

criminal aliens.” Appellant’s Br. at 27. This explanation paints

with far too broad a brush. The mandatory detention provision does

not reflect a general policy in favor of detention; instead, it

outlines specific, serious circumstances under which the ordinary

procedures for release on bond at the discretion of the immigration

judge should not apply. The non-retroactivity of the provision

hardly undercuts the purposes of mandatory detention; instead, it

serves important practical governmental interests in the

administration of the enforcement program.6 More importantly,

6
We note that, in crafting the new provisions, Congress not
only made explicit that only releases after the effective date
would trigger mandatory detention, but it further provided the
Attorney General (then responsible for the Immigration and
Naturalization Service) with the authority to request extensions of
the effective date. See IIRIRA § 303(b)(2). As a result, the
system operated with less strident mandatory detention standards in
place for two years following enactment under the transition rules.
Although Congress clearly expressed concern about aliens who had
committed qualifying offenses, it declined to begin immediately
prospective application of the detention provisions to aliens with

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finding that the “when released” language serves this more limited

but focused purpose of preventing the return to the community of

those released in connection with the enumerated offenses, as

opposed to the amorphous purpose the Government advances, avoids

attributing to Congress the sanctioning of the arbitrary and

inconsequential factor of any post-TPCR custodial release becoming

the controlling factor for mandatory detention.

Even more significantly, the Board’s reasoning in

adopting its interpretation rests on a series of speculative

conclusions. Specifically, the Board concludes that the

interpretation it adopts is consistent with what it perceives to be

the understanding of Congress regarding aliens such as Mr. Saysana:

They are “threats to persons and property in the United States who

should be segregated” pending a decision on removal; they are “poor

bail risks”; they have “little likelihood of relief from removal

and . . . therefore have little incentive to appear for their

hearings . . ., regardless of family and community ties.” Saysana,

24 I & N Dec. at 607. The Board cites no authority that Congress’s

finely tuned legislative product was premised on such unsupported

assumptions. Indeed, Congress was no doubt aware that, under some

releases after enactment, let alone retrospective application to
aliens with prior releases. Our reading attributes to the text the
same sensible acknowledgment of the important practical
governmental interests in the administration of the immigration
enforcement program that justified the initial delay. It is fully
consistent with the purposes and the application of the limited
system of mandatory detention created by Congress.

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circumstances, aliens with criminal histories that predate the

passage of IIRIRA remain eligible for forms of relief not available

to aliens with more recent criminal convictions. See generally INS

v. St. Cyr, 533 U.S. 289, 326 (2001) (holding that relief under INA

§ 212(c), 8 U.S.C. § 1182(c), repealed by the 1996 amendments to

the Act, remained available for certain categories of aliens with

convictions obtained prior to the amendments). In addition, it is

counter-intuitive to say that aliens with potentially longstanding

community ties are, as a class, poor bail risks. The affected

aliens are individuals who committed an offense, and were released

from custody for that offense, more than a decade ago. They have

continued to live in the United States. By any logic, it stands to

reason that the more remote in time a conviction becomes and the

more time after a conviction an individual spends in a community,

the lower his bail risk is likely to be. See Garcia v. Shanahan,

615 F. Supp. 2d 175, 183 (S.D.N.Y. 2009) (endorsing the conclusion

reached in Hy v. Gillen, 588 F. Supp. 2d 122, 126 (D. Mass. 2008),

that “the Government’s reading sweeps in the group of criminal

aliens most likely to qualify for a bond because only prior

criminals who have been released for at least ten years are

affected by the interpretation”).7

7
The history of the particular proceedings now before us
further draws the validity of the conclusions themselves into
question. As this case initially came before this court, it was
consolidated with another case of a similarly situated alien. Hy
v. Gillen, No. 09-1182. The companion case was dismissed as moot

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 We do not dispute that Congress has determined that the

specified offenses in the mandatory detention provision are of a

particularly serious nature warranting greater restrictions on

liberty pending removal proceedings. However, this purpose is not

sensibly advanced by the Government’s position, which, as we have

noted, draws an arbitrary distinction between individuals who, with

respect to the serious crime with which the statute concerns

itself, are identical.

In view of the logical leaps the Government’s position

entails, we must conclude that, even if the statute were ambiguous,

the Government’s interpretation is not reasonable.

III. CONCLUSION

We conclude that the meaning of the statute is clear on

the issue before us; the statute contemplates mandatory detention

following release from non-DHS custody for an offense specified in

the statute, not merely any release from any non-DHS custody. We

further conclude that, even if the statute were ambiguous, the

interpretation of the Board is not reasonable. Accordingly, we

must affirm the judgment of the district court.

AFFIRMED.

upon notice to the court by the parties that the alien was granted
relief from removal. Id., Notice of Petitioner-Appellee, Attach.
1 (Order the BIA (May 21, 2009)).

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