Criminal Defense of Immigrants


§ 6.35 B. Detention Priorities

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An INS memorandum provides guidelines on who the immigration authorities will actually make it a priority to detain,[1] setting out four categories, in descending order of who must be detained.


                Category 1 – Mandatory detention under INA § 236(c).  The INS must take into custody all noncitizens chargeable as terrorists, and virtually all noncitizens who are chargeable as removable on criminal grounds.  The INS goal is that 80% of available detention space should be taken up by persons in this mandatory detention category.


A noncitizen in mandatory detention can be released only if necessary to protect a witness, a person cooperating with an investigation, or such a person’s family member.  There must be a showing that release would not pose a danger to persons or property or a flight risk.


                Category 2 – High priority for detention.  Noncitizens chargeable with removability on security or related grounds or criminal grounds that do not trigger mandatory detention (i.e., one moral turpitude conviction with a sentence imposed of less than a year, or one or more domestic violence convictions).  Noncitizens who are a danger to the community or a flight risk, those noncitizens whose detention is essential for border enforcement, or those who have engaged in alien smuggling.


                Category 3 – Medium priority for detention.  Noncitizens who are inadmissible, non-criminal noncitizens not in expedited removal proceedings, noncitizens who committed fraud, or who were apprehended at a worksite for committing fraud to get a job.


                Category 4 – Low priority for detention.  Other removable noncitizens, or noncitizens originally placed in expedited removal who have been referred to full removal proceedings based on fear of persecution.

[149] Michael Pearson, Office of Field Operations, Executive Associate Commissioner, Memorandum for Regional Directors (Oct. 7, 1998), reprinted in 75 interpreter releases 1508 (Nov. 2, 1998).