(C)  Detention of “Arriving Aliens.”  A topic drawing greater attention is bond and detention for “arriving aliens.”  The regulations divest the Immigration Judges of jurisdiction over bond applications by arriving aliens.[149]  However, at least one court has found that this regulation cannot be applied to a noncitizen granted advance parole, where the noncitizen was not properly notified that accepting advance parole would result in denial of bond without possibility of hearing.[150]

 

This group of noncitizens is not subject to INA § 236(c).  That section applies only to those who have been “arrested on a warrant” issued by the Attorney General or Department of Homeland Security.  Arriving aliens are only “detained” under INA § 235.  Therefore, adverse decisions, such as Demore v. Kim,[151] arguably do not apply to detention issues involving arriving aliens.

 

            The Department of Homeland Security argues that its regulation[152] denies the Immigration Judge jurisdiction to redetermine conditions of custody with respect to [subparagraph (2)(B)] “[a]rriving aliens in removal proceedings, including persons paroled after arrival pursuant to section 212(d)(5) of the Act.” The term “arriving alien” is not defined in the Immigration and Nationality Act [INA], but is defined by regulation:

 

The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted advance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered an arriving alien for purposes of section 235(b)(1)(A)(i) of the Act.[153]

 

The definition of “arriving alien” therefore depends upon prior definitions of “admission” and “applicant for admission.”[154]  The statute states that a legal permanent resident shall not be regarded as seeking admission unless one or more of six conditions is met and sets up necessary conditions for being an “applicant for admission,” and thus an “arriving alien.”[155]  The statute places the burden of proof on the Government to establish that the noncitizen is an arriving alien.

[149] 8 C.F.R. § § 1003.19(h)(2)(i)(B), 236.1(c)(11).

[150] Shahwan v. Certoff, (N.D. Cal. Dec. 12, 2005)(unreported).

[151] Demore v. Kim, 538 U.S. 510 (2003).

[152] 8 C.F.R. § 1003.19(h).

[153] 8 C.F.R. § 1001.1(q).

[154] INA § § 101(a)(4), (a)(13), 8 U.S.C. § § 1101(a)(4), (a)(13).

[155] INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C); see 8 C.F.R. § 1001.1(9).  Thanks to Rick Coshnear.

DETENTION " MANDATORY DETENTION " WHEN RELEASED " RELEASE FROM PRETRIAL CUSTODY OR TERMINATION OF PROBATION DO NOT TRIGGER MANDATORY IMMIGRATION DETENTION
Masih v. Aviles, __ F.Supp.2d ___ (S.D.N.Y. May 20, 2014) (noncitizen held not subject to INA 236(c), because noncitizen had never been released from criminal custody in relation to a removable offense; mandatory detention is not triggered upon release from pre-trial custody, and termination of probation also does not constitute release from criminal custody for mandatory detention purposes).

DETENTION - MANDATORY DETENTION
Saysana v. Gillen, 590 F.3d 7 (1st Cir. Dec. 22, 2009) (INA 236(c) only allows mandatory detention after release from non-DHS custody that relates to the qualifying offense specified in the statute, not merely any release from any non-DHS custody; the statute was not ambiguous, and even if it were, the government's interpretation was unreasonable), overruling Matter of Saysana, 24 I. & N. Dec. 602 (BIA August 2008) (BIA applied mandatory detention to anyone released from any non-DHS custody for an offense described in INA 236(c) after the effective date of October 9, 1998, regardless whether the custody related to the qualifying conviction).

BIA

MANDATORY DETENTION
Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA Jun. 23, 2010) (DHS cannot hold noncitizen without possibility of IJ review under INA 236(c) where the noncitizen was last released from custody tied to the basis for detention before Oct. 8, 1998; detention, post Oct. 8, 1998, must be related to a listed basis for detention under INA 236(c)), Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), overruled; Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999), modified.

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 - MANDATORY DETENTION - RELEASE FROM CRIMINAL CUSTODY ON DISMISSED CASE SUFFICIENT TO TRIGGER MANDATORY DETENTION
Matter of Saysana, 24 I. & N. Dec. 602 (BIA Aug. 27, 2008) (a noncitizen otherwise subject to mandatory detention under INA 236(c)(1), 8 U.S.C. 1226(c)(1), but for having been released from custody prior to October, 1998, will be considered to fall within INA 236(c) if s/he is again subject to lawful non-DHS custody for any reason, regardless of whether the purpose for the detention is unrelated to the offense that triggers mandatory detention), overturned by Saysana v. Gillen, 2008 WL 5484553 (D. Mass, Dec. 1, 2008), following Thomas v. Hogan, 2008 WL 4793739 (M.D.Pa. Oct.31, 2008).

DETENTION - FACTORS TO CONSIDER
Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) (non-exhaustive factors an Immigration Judge may consider in making a determination under INA 236(a) include whether the alien has a fixed address, his or her length of residence, family ties, employment history, record of appearance at court proceedings, criminal record - including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses, history of immigration violations, attempts to flee prosecution, and manner of entry into the United States).

DETENTION - MANDATORY DETENTION - PRE-OCTOBER 8, 1998 RELEASE FROM CRIMINAL CUSTODY
Thomas v. Hogan, __ F.Supp.2d __ (M.D.Pa. Oct. 31, 2008) (noncitizen was not subject to INA 236(c) mandatory detention where he had been released from criminal custody prior to October 8, 1998, the date the Transition Period Custody Rules expired.)

Third Circuit

DETENTION " MANDATORY DETENTION
Chavez-Alvarez v. Warden York County Prison, ___ F.3d ___, ___, 2015 WL 1567019 (3d Cir. Apr. 9, 2015) (granting habeas corpus and ordering prompt immigration bond hearing: we are convinced that, beginning sometime after the six-month timeframe considered by Demore, and certainly by the time Chavez"Alvarez had been detained for one year, the burdens to Chavez"Alvarez's liberties outweighed any justification for using presumptions to detain him without bond).

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 " 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 " DEPORTED NONCITIZEN HAS NO STANDING TO SUE
Mirmehdi v. United States, ___ F.3d ___, 2011 WL 5222884 (9th Cir. Nov. 3, 2011) (a noncitizen not lawfully in the United States may not sue for monetary damages claiming constitutionally invalid 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).

DETENTION - HABEAS CHALLENGE - FILING HABEAS CHALLENGE OF DETENTION DOES NOT CREATE "INDEFINITE DETENTION"
Mukasey v. Diouf, 542 F.3d 1222 (9th Cir. Sept. 18, 2008) (rejecting argument that because it was not possible to tell how long it would take for the courts to resolve various habeas petitions filed by noncitizen, the noncitizen was in "indefinite detention" mandating release).

DETENTION - LIMITS ON DHS POWER TO SUBJECT NONCITIZEN TO PROLONGED MANDATORY DETENTION
Casas-Castrillion is DETENTION. ACLU Practice Advisory on Casas-Castrillion v. DHS, 535 F.3d 942 (9th Cir. 2008).

http://lawprofessors.typepad.com/immigration/files/practice_advisory_casascastrillon.pdf

DETENTION - NONCITIZEN DETAINED UNDER REMOVAL ORDER SUBJECT TO PENDING PETITION FOR REVIEW MAY NOT BE DETAINED FOR PROLONGED AND INDEFINITE PERIOD
Prieto-Romero v. Clark, ___ F.3d ___, 2008 WL 2853396 (9th Cir. Jul. 25, 2008) (noncitizen whose removal order is administratively final, but removal is stayed pending court of appeals' resolution of petition for review, is subject to detention under 8 U.S.C. 1226(a), but not 1231(a)(2) or (a)(6) -- which only grants attorney general authority to detain aliens "during" and "beyond" their "removal period"; 1226(a) does not authorize prolonged and indefinite detention, but denial of habeas corpus petition is affirmed where the government's civil detention of LPR for over three years, was authorized by statute, while he sought administrative and judicial review of his removal order, because noncitizen still faced a significant likelihood of removal in the reasonably foreseeable future because government could repatriate alien if judicial relief were denied, thus alien's detention was not unconstitutionally indefinite).

Some implications of this decision:

1. Noncitizen detained under 236(c) fall under 236(a) once the case moved to federal judicial review (and subsequent remand), and thus can request a bond.

2. Counsel can argue that noncitizens for whom removal is not "practically attainable," including those granted relief under the Convention Against Torture are not subject event to 236(a)

3. Counsel can argue that this case trumps, in some cases, the power of USICE to stay an IJs grant of bond pending appeal.

Thanks to Kara Hartzler

DETENTION - BOND HEARING - RIGHT TO
Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942, 948 (9th Cir. 2008) (alien detained in immigration custody, whose order of removal the Board has affirmed, is entitled to seek a bond hearing under INA 236(a), 8 U.S.C. 1226(a), until he or she enters the removal period after the Ninth Circuit has rejected his or her final petition for review, and the time to seek such review has expired); see Prieto-Romero v. Clark, 534 F.3d 1053. 1060 (9th Cir. 2008).

Other

DETENTION " CUSTODY DETERMINATION GUILDELINES
ICE announces enhanced oversight and release procedures for custody determinations involving detainees with criminal convictions https://www.ice.gov/news/releases/ice-announces-enhanced-oversight-and-release-procedures-custody-determinations

DETENTION " ALTERNATIVES
http://www.gao.gov/products/GAO-15-26 GAO report on ICE Alternatives to Detention (ATD) program, which increased its enrollment from 32,065 in FY2011 to 40,864 in FY2013.

RESOURCES FOR NONCITIZENS IN DETENTION
The Florence project, which helps immigrants in ICE detention facilities in Florence AZ, has updated their guides to help immigrants navigate the detention facilities and address many issues. Download them for free from http://www.firrp.org/resources/prose/. Thanks to the Florence Project.

DETENTION WITHOUT BOND " PRACTICE ADVISORY
"This advisory concerns the Ninth Circuits recent decision in Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). Diouf is the latest in a series of Ninth Circuit decisions addressing whether the government may subject individuals to immigration detention for a prolonged period of time without a bond hearing where the government must show that continued detention is justified. Diouf extends the Ninth Circuits previous decision in Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), which held that individuals initially subject to detention under 8 U.S.C. 1226(c) are entitled to bond hearings if their removal is stayed pending direct judicial review of their removal orders or their removal cases have been remanded for further administrative proceedings. As a result of Diouf, non-citizens who have been detained for six months or longer after entry of a final order of removal under 1231 are also now entitled to a bond hearing where the government bears the burden of justifying continued detention. Furthermore, under the reasoning of another Ninth Circuit decision, Vijendra Singh v. Holder, __ F.3d ___, 2011 WL 1 226379 (9th Cir. 2011), the government should be required to show by clear and convincing evidence that detention is necessary to prevent flight and danger." http://www.aclu.org/files/assets/Diouf_Practice_Advisory.pdf

DETENTION " DETAINER LOCATOR
U.S. Immigration and Customs Enforcement (ICE) announced the launch of ICE's Online Detainee Locator System (ODLS), a public, Internet-based tool designed to assist family members, attorneys and other interested parties in locating detained aliens in ICE custody. The ODLS is located on ICE's public website, http://www.ice.gov, and provides users with information on the location of the detention facility where a particular individual is being held, a phone number to the facility and contact information for the ICE Enforcement and Removal Operations office in the region where the facility is located. A brochure explaining how to use the ODLS is also available on the website in the following languages: English, Spanish, French, Mandarin, Vietnamese, Portuguese, Russian, Arabic and Somali. See http://www.ice.gov/detention-reform/.

DETENTION - STATISTICS ON DEATHS OF DETAINED IMMIGRANTS
http://graphics8.nytimes.com/packages/pdf/nyregion/ICE_FOIA.pdf

DETENTION - INDEFINITE DETENTION
"An estimated 139,000 immigrants from eight countries China, Eritrea, Ethiopia, India, Iran, Jamaica, Laos and Vietnam have been ordered removed from the U.S. but have not been deported because of prolonged delays or refusals by foreign governments to issue the required travel documents." San Antonio Express-News, Oct 13, 2008. http://www.mysanantonio.com/news/state/30873504.html

REMOVAL PROCEEDINGS - EFFECTIVE ASSISTANCE OF COUNSEL RIGHT WOULD ARGUABLY ATTACH - DESPITE COMPEAN - TO A CUSTODY REDETERMINATION HEARING, SINCE IT RESULTS IN A LITERAL LOSS OF LIBERTY
Matter of Compean, 24 I. & N. Dec. 710, n.3 (A.G. 2009) (by the reasoning in footnote 3, there would be a constitutional right to counsel in a custody redetermination hearing, as the "outcome" of that proceeding, entirely separate from the removal hearing, does result in a literal loss of liberty). Thanks to Rachael Keast.

DETENTION - PRACTICE ADVISORY
National Immigration Project of the National Lawyers Guild, Practice Advisory, "Immigration Court Jurisdiction to Conduct Bond Hearings Regardless Whether DHS Transfers Respondent After the Hearing Request is Filed." The model brief argues that 8 C.F.R. 1003.19(c) should be interpreted, consistent with its intent, to allow bond hearings to go forward even after a person is transferred. See http://www.nationalimmigrationproject.org/PA_IMM_CRT_CONDUCT_BOND_HEARING.pdf

BIBLIOGRAPHY " DETENTION " IMMIGRATION DETENTION RESOURCES
Noncitizens facing immigration detention and the advocates who represent them face a myriad of legal issues, ranging from eligibility for bond or parole, the location of and transfer between detention facilities, appearances in Immigration Court and eligibility for relief from removal, and harsh detention conditions. We want to alert you to resources on detention issues available through the Immigration Advocates Network (IAN), our partners, and other advocates. The Immigration Advocates Network library, at http://www.immigrationadvocates.org contains resources including: - A link to the Online Detainee Locator System; - A folder on detention in the Immigration Policy library; - A folder on immigration detainers; and - A folder on detention and bond Other resources on detention issues: American Immigration Council, http://www.legalactioncenter.org/, provides practice advisories on diverse immigration topics, including detention and enforcement. The ACLU Immigrants' Rights Project, at http://www.aclu.org/immigrants-rights/immigrant-detention. The Catholic Legal Immigration Network (CLINIC) offers resources specific to detention at http://cliniclegal.org/resources/ . The Detention Watch Network (DWN) is a nationwide coalition that addresses a variety of detention issues and offers resources and support at http://www.detentionwatchnetwork.org/. Lutheran Immigration and Refugee Service Lutheran Immigration and Refugee Service (LIRS) provides a chart on the annual detention population for fiscal years 1994 through 2011 at http://tinyurl.com The National Immigration Forum offers resources on detention and enforcement at http://www.immigrationforum.org The National Immigrant Justice Center provides resources on detention at http://www.immigrantjustice.org/ The National Immigration Law Center (NILC) offers resources on arrest and detention at http://www.nilc.org/ The National Immigration Project of the National Lawyers Guild provides information about enforcement and detention-related issues, including detention standards litigation, at http://www.nationalimmigrationproject.org/ Thanks to Immigration Advocates Network