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 you pay to the government allowing you to be released from custody and return to your home in the U.S. while you go through removal proceedings before an immigration judge. If you miss any of your scheduled court hearings, you will lose your bond money.

However, some noncitizens do not qualify for release at all, even if they would be willing to pay a bond. (See the Immigration and Nationality Act or I.N.A. § 236(c).) The immigration laws require that noncitizens be detained by immigration authorities after they are released from criminal custody, and that they remain detained while removal proceedings are pending against them. This applies any time after release, even if you are not taken into ICE custody immediately upon release from criminal custody.

In such a case, 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.

It is important to understand that ICE is required to place you in detention only if:

  • you were released from criminal custody after October 8, 1998, and
  • your release from criminal custody is directly tied to one of the mandatory detention grounds (listed below).

The grounds for mandatory detention include various grounds of inadmissibility from Section 212(a) of the I.N.A. — but an actual conviction is not required in all cases. (In other words, if you admitted to a crime, or there’s enough evidence to suggest to the immigration authorities that you did it, you will be considered to have “committed” the crime even without it being on your record.) Briefly summarized, these criminal grounds of inadmissibility 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 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
  • terrorist activity
  • significant human trafficking
  • money laundering

Detention is also mandatory for people who are deportable based on criminal convictions (found in Section 237 of the I.N.A.) including (in brief summary) for:

  • a crime involving moral turpitude where (as an added requirement from I.N.A. Section 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.

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 or not you are subject to mandatory detention. If the judge finds that you are not, he or she may consider you 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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