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, 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.
 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).
DETENTION " IMMIGRATION DETENTION " DHS MEMO ON DETENTION PRIORITIES