Mandatory Detention: When Immigration and Customs Enforcement May Hold a Noncitizen Without Bond

With a crime on someone's record, there's a good chance that an arrest by immigration authorities will be followed by detention.

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When a noncitizen comes into the custody of Immigration and Customs Enforcement (ICE), one of the first things that the deportation officer will do is determine whether or not to grant a bond. A bond is money that someone such as a relative, friend, or bond company pays to the government allowing the person to be released from custody and return to his or her home in the U.S. while going through removal proceedings before an immigration judge. (See Can I pay a bond to get a relative out of immigration detention?)

If you miss any of your scheduled court hearings, ICE will not return the bond money.

However, some noncitizens do not qualify for release at all, even if they would be willing to pay a bond. The immigration laws require that noncitizens be detained by immigration authorities when they are released from criminal custody, and that they remain detained while removal proceedings are pending against them.

When you are subject to the law requiring detention, neither ICE nor an immigration judge will even consider the possibility of bond. You will remain detained by ICE during removal proceedings regardless of your immigration status or personal circumstances.

Whether ICE must detain persons within a reasonable amount of time after release from criminal custody or whether ICE can detain persons any time after release is a question for the federal court in your area. Different courts have different answers to that question. If ICE detained you more than a few days after you were released from criminal custody, you should talk with an immigration lawyer.

 Even if in your area ICE is allowed to detain you without bond a long time after you were released from criminal custody, there is a limit. ICE can place you in detention without bond only if you were released from criminal custody after October 8, 1998.

If you’re in an area where ICE is not allowed to wait very long after your release from criminal custody to pick you up and hold you without bond, ICE can’t rely on a previous custody to hold you without bond. That is, many years ago you may have been released from custody for a crime that would have made you subject to mandatory detention, but ICE never tried to deport you. Then recently you were held in criminal custody for a minor crime that does not make you subject to mandatory detention. ICE cannot pick you up out of your most recent custody and hold you without bond.

Grounds for Mandatory Detention

The grounds for mandatory detention always involve some criminal activity on the part of the noncitizen. The exact type of criminal activity depends on whether immigration authorities are charging you with being inadmissible to the United States or deportable from the United States.

The document containing the immigration charges against you, called a Notice to Appear, tells you whether the government is charging you with inadmissibility or deportability. If you were legally admitted to the United States the last time you came, you’re subject to grounds of deportability. If you were never legally given permission to come to the U.S., or if you come back from a trip outside the U.S. after having committed a certain type of crime, you’re subject to the grounds of inadmissibility.

Briefly summarized, the criminal grounds of mandatory detention for people who are inadmissible include commission of:

  • 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, it was more than five years ago
  • multiple convictions where the combined sentences are 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
  • terrorist activity
  • significant human trafficking, and
  • money laundering.

 An actual conviction is not required in all cases. If you admitted committing certain crimes, or there’s enough evidence to suggest to the immigration authorities that you committed certain crimes, you can be subject to mandatory detention.

 For people who are deportable based on criminal convictions, the grounds of mandatory detention include commission of:

  • a crime involving moral turpitude where you were sentenced to more than one year in prison
  • two or more crimes involving moral turpitude
  • an aggravated felony (see What’s an Aggravated Felony According to U.S. Immigration Law?)
  • 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.          

Who Doesn’t Need to Be Detained

Is there anyone with a criminal record who won’t end up detained by ICE while their removal proceedings are ongoing? Just a few. First, there may be some people whose crimes don’t fit the grounds listed above—for example, who committed a minor theft that didn’t involve moral turpitude, or who was arrested for DUI.

Also, a very limited exception to the mandatory detention rules exists for noncitizens who are helping law enforcement authorities. A noncitizen may be released from detention if necessary to provide protection to a witness to a crime, a potential witness, a person cooperating with an investigation into major criminal activity, or to protect an immediate family member of such a witness. This is a very rare exception that is not commonly used.

 If you fall under this limited exception, you can be released from detention if you convince the immigration judge that you will not pose a danger to the safety of other people or property and will appear for all scheduled immigration hearings. 

What to Do If You Disagree With Your ICE Detention

If you disagree with the finding that you are must be held in detention, either because you were released from criminal custody prior to October 8, 1998, or because you do not believe you fall under one of the grounds above, you can ask the immigration judge for what’s called a “Joseph hearing.”

During this hearing, the judge will decide whether you are subject to mandatory detention. If the judge finds that you are not, you become eligible for bond.

 When determining whether to grant a bond, and its amount, the judge will consider the risk that you will miss your immigration hearings and the potential danger to the community if you are released. The decision on whether to grant a bond, and the amount, is discretionary. In other words, the judge will be making a decision based on subjective factors, and has the power to simply say "No." So, you should provide the judge with evidence regarding why you deserve a bond. Evidence can include proof of things like family ties (especially if you have family that is dependent on you or family members who are ill), employment history, and ties to the community.

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