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No Way Out: When Must An Alien Be Detained?

If an alien is detained by DHS he will only be permitted bail if he is not subject to mandatory detention. Mandatory detention is a provision of immigration law requiring certain classes of aliens to be imprisoned while their removal proceedings are pending and, according to the government, any appeals are taken. This can and often does take years to complete. This law inflicts misery needlessly on many aliens and their families.

The law of mandatory detention begins with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). The mandatory detention provisions are found at §236(c) of the Immigration and Nationality Act (INA) [8 USC §1226(c)], and state:

(1) Custody.—The Attorney General shall take into custody any alien who—

(A) is inadmissible by reason of having committed any offense covered in section 212(a)(2), (This includes crimes involving moral turpitude; controlled substance violations; multiple criminal convictions to which aggregate prison sentences were five or more years; prostitution and commercialized vice; significant traffickers in persons; and money laundering);

(B) is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D), (multiple CIMTs; Aggravated felonies; controlled substance violation’ certain firearms offenses; treason; sedition; espionage; sabotage; threats against the president or successor to the president; supporting expedition or arms against friendly nation; violation of the Military Selective Service Act or the Trading with the Enemy Act; or commits a crime; the importation of an alien for immoral purposes; and certain crimes relating to passport fraud and violation of travel restrictions)

(C) is deportable under section 237(a)(2)(A)(i) [a CIMT] on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 212(a)(3)(B), or deportable under section 237(a)(4)(B), (terrorist activities)

when the alien is released, without regard to whether 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.

Anyone charged with inadmissibility under INA §212(a) for a crime must be detained while removal proceedings are pending. This includes individuals arriving at a port of entry (arriving aliens) and individuals who are physically present, but subject to the grounds of inadmissibility (including persons who entered without inspection or who were paroled). Note, however, that even a lawful permanent resident who is seeking re-entry into the United States will be an arriving alien if he was convicted of a crime of inadmissibility even if that offense would not have rendered him removable from the United States had he not left.

Persons who face charges of deportability under INA §237(a) (i.e., those persons who were admitted into the United States and are physically present in the United States) are also subject to mandatory detention unless they are removable for only one crime, involving moral turpitude, for which the sentence imposed was less than one year. Thus, there is a limited exception for persons who are deportable, as opposed to inadmissible: the former will not be detained without bond if they have only one conviction for a crime involving moral turpitude for which less than one year imprisonment was imposed.

Although not every criminal conviction that renders an alien removable will lead to mandatory detention, most will. The exceptions are convictions for a crime of domestic violence offense, DUIs, 8 USC §1227(a)(2)(E). visa violation, export violation and one crime involving moral turpitude when the sentence of imprisonment imposed is less than one year.

This is a harsh provision that requires the Attorney General and now the Department of Homeland Security (DHS) to detain those individuals described at INA §236(c). DHS has no discretion to release these individuals either for humanitarian reasons or simply because it determines that some of the individuals detained are not a threat to society and not likely to flee. Thus, individuals who are terminally ill and not capable of fleeing are subject to mandatory detention. The only class of persons potentially exempt under the statute is cooperating witnesses, their family members, and close associates. In some instances detention under 236(c) may be challenged in federal district court. This requires the filing of a habeas corpus petition.

Additional resources provided by the author

Bond hearings before the IJ are governed by 8 CFR §1003.19. The regulations state that custody and bond determinations made by the government pursuant to 8 CFR Parts 236, 1236 may be reviewed by an IJ pursuant to 8 CFR Parts 236, 1236. 8 CFR §1003.19(a).

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