UNDER FEDERAL LAW
INDIVIDUALS ARE SUBJECT TO
DETAINED WITHOUT A HEARING
WHAT IS MANDATORY DETENTION?
Sometimes Immigration (ICE) can arrest and detain an immigrant without a hearing, with no opportunity to post bond (bail) or make your case for release from ICE detention before a judge.
When ICE arrests an individual, the ICE deportation officer will determine whether or not to grant bond. A bond, like bail, is money that you pay in order to be released from custody. The money will be returned at the end of your case unless you miss a hearing.
Some people will not be eligible for release under any circumstances, even if they pay bond. Under INA § 236(c) certain aliens are required by law to be held in ICE custody until their immigration case is resolved. If an alien is subject to mandatory detention then they are not eligible to be released on bond and neither ICE nor the Immigration Judge will even consider bond.
THE STATUTE - INA §236(C)
INA § 236(c) also found at 8 U.S. Code § 1226(c):
The Attorney General shall take into custody any alien who-
(A) is inadmissible by reason of having committed any offense covered in section 212(a)(2) ,
(B) is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii) , (A)(iii), (B), (C), or (D),
(C) is deportable under section 237(a)(2)(A)(i) on the basis of an offense for which the alien has been sentence 2/ to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B) , 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.
CHALLENGING MANDATORY DETENTION
If you disagree with the finding that you are subject to mandatory detention you can challenge the determination. You can ask the Immigration Judge for what’s called a “Joseph Hearing.”
During this hearing, the judge will decide whether or not you are subject to mandatory detention. If the judge finds that you are not, he may consider offering release on bond in his discretion. Joseph hearings are often granted and often times an attorney can easily prove that the ICE officer wrongfully applied the mandatory Detention Statute.
If the Immigration Judge does not find in your favor you may file a Petition for Habeas Corpus in Federal Court. Learn more about Habeas Corpus Petitions Here.
WHO IS SUBJECT TO
CRIMINAL CONVICTION UNDER INA §237
CERTAIN PEOPLE ARRESTED AT THE BORDER
A person is subject to mandatory detention if they are indadmissible under INA §212(a) for criminal grounds. It should be noted that a an actual conviction is not always necissary to trigger mandatory detention. Criminal grounds of inadmissibility that may trigger mandatory detention include:
a crime involving moral turpitude, unless the maximum sentence possible is one year or less and the actual sentence you received is less than six months OR if you were under 18 when you committed the crime and it was more than five years ago
multiple convictions where the aggregate sentence is five years or more of imprisonment
a controlled substance offense (any drug offense, including if the immigration authorities have reason to believe that you are a drug trafficker)
a prostitution-related offense
significant human trafficking
A person may also be subject to mandatory detention if they are deportable based on criminal convictions under INA §237 including:
a crime involving moral turpitude where (as an added requirement from INA §236(c)(1)(C)), you were sentenced to more than one year in prison
two or more crimes involving moral turpitude
an aggravated felony
a firearms offense
a controlled substance conviction other than a single offense for possession for your own use of 30 grams or less of marijuana
drug abuse or addiction, or
espionage, sabotage, or treason.