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Mandatory Detention

July 01, 2019
Jeffrey Cohn
  • A. What is mandatory detention?

On September 30, 1996, President Bill Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which mandated detention, without release, for virtually all foreign nationals who have committed certain crimes. The mandatory detention provision of the statute is found at Section 236(c) of the Immigration & Nationality Act (“INA”). Foreign nationals who are subject to mandatory detention are not entitled to a bond hearing and must remain in detention while removal proceedings are pending against them.

  1. B. Who is subject to mandatory detention?

According to Section 236(c) of the INA, mandatory detention will apply when the Attorney General takes into custody, any person who;

  • – Is inadmissible by committing any offense covered under the criminal and related grounds of inadmissibility, such as a crime involving moral turpitude;
  • – Is deportable for having committed two or more crimes involving moral turpitude, an aggravated felony, a drug offense, a firearm offense, or a miscellaneous crime (such as espionage, sabotage, or treason for which a term of imprisonment of five years or more may be imposed);
  • – Has committed a crime involving moral turpitude for which the sentence of imprisonment is at least one year; or (d) is involved in terrorist activity.

The meaning of a “crime involving moral turpitude” (CIMT) has been developed by federal immigration case law, however, it is vaguely defined and has been subject to frequent litigation.   Traditionally, a CIMT involves intent to commit fraud, commit theft with intent to permanently deprive the owner, or inflict great bodily harm, as well as offenses involving lewdness, malice, or recklessness.

According to the statute, the Attorney General shall take individuals subject to mandatory detention into custody “when 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.” For the mandatory detention provision to apply, the release from criminal custody must be on or after October 9, 1998, the effective date of Section 236(c).

On March 19, 2019, the Supreme Court held in Nielsen v. Preap that a noncitizen does not become exempt from mandatory detention through the failure of the Department of Homeland Security (“DHS”) to take him or her into immigration custody immediately upon release from criminal custody.

  1. C. What are some of the ways to challenge mandatory detention?

Pursuant to the Board of Immigration Appeal’s decision in Matter of Joseph, immigration judges have jurisdiction to decide whether the mandatory detention provision applies. Matter of Joseph held that a lawful permanent resident (“LPR”) is not properly included within a mandatory detention category if Immigration and Customs Enforcement (“ICE”) is “substantially unlikely” to establish at the merits hearing the charges that would subject the respondent to mandatory detention.  Detained respondents in immigration court removal proceedings must request a Joseph hearing, which will require submitting a motion to the court and briefing the legal argument – it may be a violation of the respondent’s rights if a Joseph hearing is not scheduled immediately after requested.  If the respondent prevails at the Joseph hearing, he or she is entitled to a bond hearing.

Additionally, if the foreign national was released from criminal custody before October 9, 1998, the mandatory detention provision would not apply, and he or she would be eligible for a bond hearing. According to Section 236(a) of the INA, $1,500 is the statutory minimum for a delivery bond; there is no statutory maximum.

Even if a foreign national is properly placed in immigration custody under the mandatory detention provision of the statute, it is still possible to challenge the legality of such detention where it is prolonged and indefinite by filing a habeas petition in federal district court.

Contact an attorney at Minsky, McCormick & Hallagan, P.C. if you need assistance analyzing the applicability of the mandatory detention provision, including an evaluation of the potential legal challenges we may able to advance on your behalf.

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