Can a person be detained in jail during the removal process?
The U.S. immigration laws have become much stricter in the last ten years, and the laws concerning detention and bond are no exception. Many Lawful Permanent Residents are surprised to learn that they are subject to mandatory detention by Immigration and Customs Enforcement (ICE).
Criminal and security related provisions under the Immigration & Nationality Act require the mandatory detention of both lawful permanent residents and illegal aliens while removal proceedings are pending against them. In such a case, lawful permanent residents and illegal aliens are detained and remain in the custody of the Immigration and Customs Enforcement pending the outcome of their removal proceedings without the right to a bond hearing.
While mandatory detention may sound unconstitutional, in 2003, the United States Supreme Court upheld this practice in the controversial case of Demore v. Kim. Before this decision, many immigration courts held bond hearings on a case by case basis to determine an individual’s release during pending removal proceedings.
Whether an individual is eligible for bond or must remain in jail under mandatory detention provisions pending the outcome of a removal hearing depends on why ICE is arresting the individual.
If ICE is detaining an individual because of an immigration violation, and not because of certain criminal convictions or for security-related reasons, that person may be released by ICE on bond or on recognizance. The factors ICE considers in making its determination are: local family ties; prior arrests and convictions; prior appearances at hearings; membership in community organizations; manner of entry into the U.S.; length of time in the U.S.; and financial ability to post bond.
Individuals who are considered “arriving aliens” who are not “admissible” are subject to mandatory detention. The term “admissible” is used to refer to an individual seeking to enter the United States, i.e., a person applying for a visa at the U.S. Embassy, a lawful permanent resident returning to the United States at the airport. Those who are not allowed to enter the United States are considered “inadmissible” and subject to mandatory detention. These individuals do not receive a bond hearing. An Immigration Judge has no authority to grant them bond, no matter what the circumstances.
Individuals who were released from criminal custody after October 8, 1998, whom ICE then take into custody, are likely subject to mandatory detention. ‘Criminal custody’ can mean release after an arrest or release from a prison sentence. If an individual is released from police custody and ICE wants to remove that individual because of convictions of certain crimes of moral turpitude, certain drug crimes, or certain firearm offenses, that person is not eligible for bond and will be detained for the duration of his or her proceedings.
Specifically, for a non-American citizen to be subject to the Mandatory Detention rules he or she must have been released from federal or state custody after October 8, 1998 and his or her criminal conviction(s) must render him or her inadmissible or deportable.
The term “deportable” applies to an individual who has already been admitted into the United States and the government is seeking to deport. One exception exists to the mandatory detention of a non-American citizen: an individual is entitled to a bond hearing if he or she is deportable because of one conviction involving moral turpitude for which he or she was jailed for less than a year.
In determining what qualifies as “release from federal or state custody,” a mere criminal arrest without a criminal sentence may qualify as custody allowing for Immigration & Customs Enforcement to detain non-American citizens. Furthermore, the fact that a non-American citizen is released from federal or state custody and is not immediately detained by Immigration & Customs Enforcement will not preclude Immigration & Customs Enforcement from later taking that that non-American citizen into custody under the Mandatory Detention provisions.