Mandatory Detention

 

Sometimes Immigration (ICE) can arrest and detain an immigrant without a bond hearing.

When ICE arrests an individual, the ICE deportation officer will determine whether or not to grant bond. A bond, like bail, is money that you pay in order to be released from custody. The money will be returned at the end of your case unless you miss a hearing.

 

Some people will not be eligible for release under any circumstances, even if they pay bond. Under INA § 236(c) certain aliens are required by law to be held in ICE custody until their immigration case is resolved. If an alien is subject to mandatory detention then they are not eligible to be released on bond and neither ICE nor the Immigration Judge will even consider bond.

 

*Mandatory detention applies only if the individual was arrested prior to October 8, 1998.

 

A person is subject to mandatory detention if they are inadmissible under INA §212(a) for criminal grounds. It should be noted that an actual conviction is not always necessary to trigger mandatory detention. Criminal grounds of inadmissibility that may trigger mandatory detention include:

 

  • 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

 

A person may also be subject to mandatory detention if they are deportable based on criminal convictions under INA §237 including:

 

  • a crime involving moral turpitude where (as an added requirement from INA §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.

 

Challenging a finding of mandatory detention

If you disagree with the finding that you are subject to mandatory detention you can challenge the determination. 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 may consider offering release on bond in his discretion.

 

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