Mandatory Detention: When U.S. Immigration and Customs May Hold a Noncitizen Without Bond

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

By , Attorney ● University of Pennsylvania Carey Law School
Updated 4/29/2023

When a foreign noncitizen comes into the custody of U.S. 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 paid to the U.S. government (often by a friend, relative, or bond company) allowing the person to be released from custody while going through removal proceedings before an immigration judge. It's meant to guarantee that the person will show up for their hearings, since if they don't, the government keeps the money. (See Can I Pay a Bond to Get a Relative Out of Immigration Detention?)

However, some foreign nationals do not qualify for release at all, even if they would be willing to pay a bond; namely, those who have committed a crime. Neither ICE nor an immigration judge will even consider the possibility of bond for them. They will remain detained by ICE during removal proceedings regardless of immigration status or personal circumstances. This article will discuss more specifically who faces immigration detention without bond.

For the federal law on this, see 8 U.S.C. § 1226.

Grounds for Mandatory Immigration Detention

The grounds for mandatory detention always involve some criminal activity on the part of the noncitizen. The exact type depends on whether U.S. immigration authorities are charging them 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 (NTA), tells you which one the government is charging you with. 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 (CIMT), 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 of the above cases. If you admitted committing certain crimes, or there's enough evidence to suggest to U.S. 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.

How Long Before ICE Will Place You in Detention?

U.S. 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 going on. However, as a practical matter, it doesn't always play out that way. Sometimes ICE takes people into detention long after their release from criminal custody.

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 courts in your area. Courts in different federal jurisdictions across the United States have given 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 a person without bond a long time after release from criminal custody in your area, there is one limit that can help a few people. ICE can place someone in detention without bond only if they 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 a persons' release from criminal custody to pick them up and hold them without bond, ICE can't rely on a previous custody to hold you without bond. For example, let's say many years ago you were released from custody for a crime that should 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.

Which Foreign Nationals With Criminal Records Don't Need to Be Held in Immigration Detention, or Can Be Released on Bond

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 might be some whose crimes don't fit the grounds listed above—for example, who committed a minor theft that didn't involve moral turpitude, or who were arrested for a DUI.

Also, a 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 rare exception that is not commonly used. If you fall under this limited exception, you can be released from immigration detention if you convince the immigration judge that you will not pose a danger to the safety of other people or property and you 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 immigration 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.

Getting Legal Help

It is highly advisable to retain an experienced immigration attorney to help you navigate this tricky area of immigration law and help you win release from detention and avoid deportation.

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