What is Mandatory Immigration Detention?

If there are not already many good reasons for a Green Card holder to become a U.S. citizen, mandatory immigration detention is certainly one of them.

Immigrants, including Lawful Permanent Residents, (Green Card holders), are subject to mandatory detention and/or mandatory deportation if they commit certain crimes. On the other hands, U.S. Citizens can never be subject to mandatory immigration detention, and cannot be deported from the United States (except in cases of denaturalization).

When the Immigration and Customs Enforcement (ICE) takes into the custody a noncitizen, a deportation officer will decide whether or not to grant a bond.

A bond is money that you pay to the government allowing you to be released from custody while you go through removal proceedings before an immigration court.

The Immigration and Nationality Act section 236(c) states that the government must take you into custody and hold you without bond if you have been convicted of certain removable offenses, and you were released from custody after October 8, 1998.

If an alien was convicted of a removable offense but not sentenced to jail (for instance, probation or a conditional discharge) he or she may still be eligible for a bond.

Whether you are a lawful permanent resident, live in the U.S. illegally as a Visa overstay, or entered the country illegally, you will be subject to Mandatory Detention if you were released from jail after October 8, 1998 and convicted of any of the following crimes:

  • two crimes involving Moral Turpitude (CIMT) at any time after your admission in the United States;
  • An aggravated felony;
  • A controlled substance offense;
  • A firearms offense.

If you are a lawful permanent resident returning from a trip abroad, or you are seeking admission into the United States, you may be subject to Mandatory Detention if you were released from jail after October 8, 1998, and you were convicted of any of the following crimes:

  • Controlled substance offense;
  • Drug trafficking offense;
  • One CIMT;
  • Two or more offences with aggregate sentence of 5 years of incarceration;
  • Prostitution;
  • Domestic violence or violation of protection order

If you are not within the category of individuals subject to mandatory detention, and you are not an arriving alien, you may be eligible to an immigration bond.

Federal law only provides general criteria to establish whether an offense is a CIMT or an aggravated felony. Unless there is a BIA of Federal case directly addressing a specific criminal offense, your immigration attorney can almost always make an argument for non-inclusion within the categories of people subject to mandatory detention.

Federal law also provides that an alien that is being held pursuant to INA § 236(c) has the right to have an immigration judge determine whether he or she was properly included within the category of individuals subject to mandatory immigration detention. Matter of Joseph, Interim Decision 3398 (BIA 1999).

Furthermore, there may be instances where mandatory immigration detention may be challenged on Constitutional Due Process grounds.

For instance, at least one Federal Court held that it is unconstitutional for ICE to detain immigrants many years after they returned to the community. Castaneda v. Souza, 952 F. Supp. 2d 307 (D. Mass. 2013).

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