Def. Council, Inc., 467 U.S. 837 (1984). In a later decision, Matter of Garcia Arreola, 25 I. & N. Dec. 267, 270 (BIA 2010), the BIA ruled that § 1226(c) applies only where the alien has been released from custody for one of the offenses enumerated in that section after October 8, 1998. The BIA determined that Garcia Arreola was not subject to mandatory detention because he was released from non-DHS custody resulting from assault crimes which were not offenses under § 1226(c)(1).

Def. Council, Inc., 467 U.S. 837 (1984). In a later decision, Matter of Garcia Arreola, 25 I. & N. Dec. 267, 270 (BIA 2010), the BIA ruled that § 1226(c) applies only where the alien has been released from custody for one of the offenses enumerated in that section after October 8, 1998. The BIA determined that Garcia Arreola was not subject to mandatory detention because he was released from non-DHS custody resulting from assault crimes which were not offenses under § 1226(c)(1).

Because Congress understood that it would take time for INS to put mechanisms in place to comply with the new rules, it deferred Section 236(c)'s implementation for two years. See Straker, 986 F.Supp.2d at 361 n. 10; Saysana, 590 F.3d at 10 n. 2; Matter of Garcia Arreola, 25 I. & N. Dec. 267, 268–69 (B.I.A.2010). Congress established another set of rules, the Transition Period Custody Rules (“TPCR”), to apply in the interim.

In support of his argument that the Court should ignore Rojas, Johnson notes that “the purported premise of Rojas that Section 1226(c)(1)'s concluding clause may be read as disjointed from the list of enumerated offenses—has been consistently rejected by federal courts and even the BIA, in a later decision.” (Pet.'s Response at 15 (discussing Saysana v. Gillen, 590 F.3d 7 (1st Cir.2009), and Matter of Louis Felipe Garcia Arreola, 25 I. & N. Dec. 267 (BIA 2010)). Johnson is correct that the First Circuit in Saysana and the BIA in Garcia Arreola rejected the argument that the concluding clause of section 1226(c)(1), which contains the “when the alien is released” phrase, could be read as disjointed from the preceding list of enumerated offenses.

Thus, § 303(b)(2) of IIRIRA limits the application of § 1226(c) to individuals "released after" October 8, 1998. See Saysana v. Gillen, 590 F.3d 7, 10 n.2 (1st Cir. 2009) ("The TPCR expired on October 8, 1998, and the mandatory detention provision of 8 U.S.C. § 1226(c) became effective"); Matter of Garcia Arreola, 25 I.& N.Dec. 267, 269 (BIA 2010) (Section 1226(c) "requires mandatory detention of a criminal alien only if he or she is released from non-DHS custody after the expiration of the TPCR and only where there has been a post-TPCR release that is directly tied to the basis for detention under [§ 1226(c)]"). In Matter of West, 22 I.&N. Dec. 1405 (BIA 2000), the BIA determined that § 1226(c) did not apply to West, who had pled guilty to offenses listed in § 1226(c) on September 29, 1998, and had been sentenced on February 5, 1999, to two years of probation, because West was not "released after" October 8, 1998.

Third, the United States' reliance on Saysana is unavailing because, in Saysana, the United States asserted the same argument they make here that § 1226(c) is ambiguous, and the First Circuit rejected the United States' argument and found that the statute was not ambiguous. Saysana, 590 F.3d at 14–15 (“We believe that [the United States'] reading of the statutory language is a strained one ... [because] the plain language of the statute does not render the term ‘when released’ meaningless as applied to [§ 1226(c)(1)(A) and (D) ].... Absent a clear direction in the text to read multiple uses of the same term to carry different meanings, we shall not do so.”). Finally, the Court notes that the Government contends that the Magistrate Judge erred by failing to consider the BIA's decisions In re West, 22 I. & N. Dec. 1405, 1408–10 (BIA 2000) and Matter of Arreola, 25 I. & N. Dec. 267, 271 (BIA 2010). The Court notes that the United States did not cite to Matter of Arreola in its briefs before the Magistrate Judge, and theories raised for the first time in objections are deemed waived.

24 I. & N. Dec. 124, 125 (BIA 2007) (citing Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001); Matter of West, 22 I. & N. Dec. 1405 (BIA 2000)). Petitioner incorrectly contends that Kotliar was overruled in pertinent part by the Board in Matter of Garcia-Arreola, 25 I. & N. Dec. 267 (BIA 2010). Garcia-Arreola did reverse prior Board precedent that had been affirmed in Kotliar.

In Matter of Rojas, the BIA determined that, where Rojas was released on parole for an offense covered by § 1226(c)(1) two days before he was taken into immigration custody, § 1226(c)(1) applied, even though Rojas was free in the community for two days. In Matter of Garcia Arreola, 25 I. N. Dec. 267, 270 (BIA 2010), the BIA ruled that § 1226(c) applies only where the alien has been released from custody for one of the offenses enumerated in that section after October 8, 1998. The BIA determined that Garcia Arreola was not subject to mandatory detention because he was released from non-DHS custody resulting from assault crimes which were not offenses under § 1226(c)(1).

Saysana thus viewed the "when ... released" clause as limiting (c) as a whole, including the piece of (c) that "prevents the return to the community" (i.e., prohibits the bonded release) of certain aliens. See also Matter of García Arreola, 25 I. & N. Dec. 267, 270–71 & n. 4 (BIA 2010) (concluding that Saysana held that (c)(2) refers to and incorporates the "when ... released" clause as a constraint and thereby recognizing the conflict between Saysana and Rojas ). Two other parts of the IIRIRA lend further support to petitioners' reading of the cross-reference, in which the "when ... released" clause in (c)(1) applies as a constraint across the whole of (c).

SeeMatter of Siniauskas , [27 I. & N. Dec. 207, 207-08] (BIA 2018) (holding that driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings); see alsoBegay v. United States , 553 U.S. 137, 141 [128 S.Ct. 1581, 170 L.Ed.2d 490] (2008). While the [IJ] believed that the respondent has demonstrated sufficient rehabilitation, the DHS also observes that the respondent's driving while impaired occurred after his 31-day rehabilitation program and that his illicit drug use ceased only upon his 2017 detention (IJ at 4; Respondent's Exhs. A, B). SeeMatter of Garcia Arreola , [25 I. & N. Dec. 267] (BIA 2010) ; Matter of Roberts , [20 I. & N. Dec. 294, 303] (BIA 1991) (noting that an alien's "assurances" alone are not sufficient to "show genuine rehabilitation").The DHS also argues that the respondent demonstrated continued contempt for criminal laws when he violated probation and violated an order of protection