Criminal Defense of Immigrants

Chapter

§ 6.37 (A)

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(A) In General. Only certain listed removal grounds trigger mandatory detention. Immigration authorities must “take into custody,” and thereafter not release, a noncitizen who is

(1) inadmissible under grounds relating to

(i) moral turpitude,

(ii) drug conviction,

(iii) reason to believe illicit drug trafficking,

(iv) prostitution,

(v) miscellaneous convictions,

(vi) diplomatic immunity, and sabotage, espionage,

(vii) terrorist activities,[1] or

(2) deportable under grounds relating to

(i) conviction of one crime of moral turpitude committed within five years of last entry if sentence of one year or more imprisonment was imposed,

(ii) conviction of two crimes of moral turpitude,

(iii) an aggravated felony,

(iv) a drug offense,

(v) a firearms offense, or

(vi) miscellaneous crimes (sabotage, espionage),

(vii) drug abuse/addiction, or

(viii) terrorist activities.[2]

A noncitizen does not need to be charged with removal under one of these grounds in order to be subject to mandatory detention.[153] A noncitizen may ask the IJ to review whether s/he qualifies for mandatory detention.[4]

Matter of Joseph held that a permanent resident is not properly included within a mandatory detention category if the INS is “substantially unlikely” to establish at the merits hearing the charges that would subject the person to mandatory detention.[5] While counsel should try to meet that standard, counsel also can challenge a negative immigration court decision by filing a habeas corpus petition in federal district court alleging that the proper standard is simply “likelihood of success on the merits of the charge.” Immigration counsel should schedule a Joseph hearing immediately after it is requested. If the person prevails at the Joseph hearing, s/he is entitled to a bond hearing. The bond determination may also be challenged on habeas in federal district court. See § 6.47, infra.

If mandatory detention applies, the immigration court is not permitted to release the noncitizen on bond, unless, as discussed below, a federal court orders a bond hearing. Moreover, even if the immigration court finds that the noncitizen is not removable, if the DHS appeals that decision, the noncitizen is subject to mandatory detention until the Board of Immigration Appeals decides the case, which may be a considerable time later. See § 6.46, infra.

[1] INA § § 236(c)(1)(A) and (D), 8 U.S.C. § § 1226(c)(1)(A) and (D).

[2] INA § § 236(c)(1)(B) and (C), 8 U.S.C. § § 1226(c)(1)(B) and (C).

[154] Matter of Kotliar, 24 I. & N. Dec. 124 (BIA 2007) (noncitizen need not be charged with the ground of deportation that provides the basis for mandatory detention under INA § 236(c)(1), 8 U.S.C. § 1226(c)(1), in order to be considered an alien who “is deportable” on that ground).

[155] 8 C.F.R. § 1002.19(h)(2)(ii).

[156] Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999).

Updates

BIA

DETENTION - BOND REQUEST - VISA WAIVER PROGRAM
Matter of Werner, 25 I. & N. Dec. 45, 48 (BIA 2009) (IJ lacks jurisdiction to consider a bond request from a person admitted through the Visa Waiver Program and who sought asylum and withholding of removal upon being detained by DHS).

NOTE: An earlier contrary decision, Matter of Gallardo, 21 I. & N. Dec. 210 (BIA 1996), was held to have been superseded by 8 C.F.R. 1208.2(c).

DETENTION VISA WAIVER PROGRAM
Matter of Werner, 25 I. & N. Dec. 45 (BIA 2009) (a person admitted to the United States pursuant to the Visa Waiver Program, and who has not been served with a Notice to Appear under to 8 C.F.R. part 1240, is not entitled to a custody hearing before an Immigration Judge under 8 C.F.R. 1236.1(d)); superseding Matter of Gallardo, 21 I. & N. Dec. 210 (BIA 1996). http://m1e.net/c?7073444-m0TfcDXgxyTMk%404388130-5xIxLoHJwYH3k

Seventh Circuit

DETENTION - MANDATORY DETENTION - PENDING JUDICIAL REVIEW
Hussain v. Mukasey, 510 F.3d 739 (7th Cir. Dec. 18, 2007) (8 U.S.C. 1252(a)(2)(B)(ii) bars the appellate court from ordering the release of a noncitizen pending judicial review of the order of removal), following Bolante v. Keisler, __ F.3d __, 2007 WL 3170144 (7th Cir. Oct.31, 2007).

Ninth Circuit

DETENTION " MANDATORY DETENTION " DETENTION CAN BE NO LONGER THAN SIX MONTHS WITHOUT HEARING
Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013) (mandatory immigration detention pursuant to INA 236(c) detention is limited to six months; anything longer without an individualized hearing is presumptively unreasonable); Diop v. ICE/Homeland Security, 656 F.3d 221, 234 (3d Cir. 2011) (individualized hearing required to determine what is reasonable in a given case); Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003); Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009). See also Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 Harvard Civil Rights-Civil Liberties Law Review 601, 603 (2010).

DETENTION - PRE-1988 AGGRAVATED FELONIES
Ledezma-Garcia v. Holder, 599 F.3d 1055 (9th Cir. Mar. 22, 2010) (although the "aggravated felony" definition applies regardless of the date of conviction, an aggravated felony conviction occurring prior to November 18, 1988 does not trigger deportability under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)), overruling Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (en banc). An aggravated felony conviction does not trigger mandatory detention unless it renders the noncitizen "deportable" under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii). Therefore, an aggravated felony conviction occurring prior to November 18, 1988, does not as such trigger mandatory detention.

DETENTION - 90 DAY CLOCK FOR REMOVAL STARTS ONLY AFTER NONCITIZEN DATE OF LAST DOCUMENTED OBSTRUCTION OF REMOVAL BY NONCITITZEN
Mukasey v. Diouf, 542 F.3d 1222 (9th Cir. Sept. 18, 2008) (90-day clock for Immigration Authorities to remove noncitizen starts only after the final date the DHS can show documented evidence of obstruction by the noncitizen of the removal process).

DETENTION - 90 DAY CLOCK FOR REMOVAL - FILING HABEAS CHALLENGING REMOVAL IS NOT OBSTRUCTION OF REMOVAL
Mukasey v. Diouf, 542 F.3d 1222 (9th Cir. Sept. 18, 2008) (the filing habeas corpus petitions challenging detention cannot be considered an attempt by a noncitizen to obstruct removal for the purposes of the 90-day clock).

BIA

DETENTION " IMMIGRATION DETENTION
Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). The requisite "reason to believe" that allows the INS to claim a respondent is subject to the mandatory detention for purposes of the automatic stay is not sufficient for the merits of the bond appeal. Matter of Joseph, 22 I&N Dec. 660 (BIA 1999), clarified. For purposes of determining the custody conditions of a lawful permanent resident under section 236(c) of the Act, a lawful permanent resident will not be considered "properly included" in a mandatory detention category when an Immigration Judge or the BIA finds it is substantially unlikely that the INS will prevail on a charge of removability specified under section 236(c)(1) of Act.

Other

DETENTION - RELEASE DURING REMOVAL PROCEEDINGS - STAY OF REMOVAL IN PLACE
Some circuits hold that once granted by a circuit court, a stay of removal results in a 236 (pre-removal) not 241 (post-removal/Zadvydas) detention case. See, e.g., Tijani v. Willis, 430 F. 3d 1241 (9th Cir. 2005); Wang v. Ashcroft, 350 f.3d 130 (2nd Cir. 2003). The significance of this distinction is that 236 detainees are not subject to periodic Zadvydas review procedures.

BIBLIOGRAPHY " DETENTION " MANDATORY DETENTION
David Manuel Hernndez, Undue Process, in Constructing Borders/Crossing Boundaries 59-86 (Caroline B. Brettell ed. 2007).