New York Lawyer's Legal Updates

Detained By Ice: Can You Get A Bond?

Author: Deportation Lawyer Alena Shautsova

ICE detention is usually occurs when a non-citizen is suspected to be removable from the US. Often, ICE (Immigration Custom Enforcement) places a hold on individual who is in State detention facilities, but an undocumented person can be also apprehended at the airport, or a bus station.

An immigration detention can be mandatory. Mandatory detention means that the person will not be able to receive a bond hearing and be released. It is applicable in the following situations under Section 1226 of the Title 8 of the United States Code:

(A) is inadmissible by reason of having committed any offense covered in section 1182 (a)(2) of this title
(B) is deportable by reason of having committed any offense covered in section 1227 (a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227 (a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182 (a)(3)(B) of this title or deportable under section 1227 (a)(4)(B) of this title,

when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

The crimes referenced include human trafficking, drug trafficking, crimes of moral turpitude, drug conspiracies, prostitution, firearm offenses, treason, espionage, and the like. Id. § 1226(c)(1)(A)–(D) (citing offenses listed in 8 U.S.C. §§ 1182, 1227).

Upon reading of the Statute it seems that the "alien" will be subject to mandatory detention only if taken into custody by ICE immediately upon release from the State of Federal custody. In fact, there are a number of cases confirming this position. See Lopez v. Hendricks, 12-cv-5937 (Dist. N.J. Feb.23. 2013). However, under the recent case from the Third circuit, mandatory detention may be imposed even after a prolonged release from custody. In Sylvain v. Attorney General, 11-cv-3357 (3d Cir. 2013) the court stated:

This case presents a straightforward question: Do immigration officials lose authority to impose mandatory detention if they fail to do so ―when the alien is re-leased‖? The answer turns on the interplay between several provisions of the Act. We conclude that dilatory officials do not lose authority, and so we will reverse the District Court‘s decision to the contrary.

The 3rd Circuit Court also noted:

[a]n alien may challenge the application of mandatory detention. In that event, an immigration judge holds a Joseph hearing to determine whether the person is an alien who committed a relevant crime. See Diop v. ICE/Homeland Sec., 656 F.3d 221, 230–31 (3d Cir. 2011) (citing In re Joseph, 22 I. & N. Dec. 799, 800 (B.I.A. 1999)). And even then, ―the statute implicitly authorizes detention [only] for a reasonable amount of time.

At the same time, a recent decision out of 9th Circuit upheld preliminary injunction in the class action lawsuit, ordering the government to provide a bond hearing to individuals who have been mandatorily detained in southern California for more than six months in Rodriguez v. Robbins, (9th Cir. April 13, 2013).

The Court held that petitioners-appellees were likely to succeed on the merits of their claim that § 1225(b) must be construed to authorize only six months of mandatory detention, after which detention is authorized by § 1226(a) and a bond hearing was required. The panel also held that the preliminary injunction was necessary to ensure that individuals whom the government could not prove constitute a flight risk or danger to public safety were not needlessly detained, and that appellees therefore clearly showed a risk of irreparable harm.

As such, it would be fair to say that even if a person is subject to mandatory detention due to the criminal past, he or she may still be released on bond if detention lasts beyond reasonable time. It is also obvious that an advice of competent Immigration attorney is required whenever somebody has to fight their way out of the detention because due to the complexity of the legal issues, a lay person will face a very difficult time trying to argue their way out of the walls of cold cells.

06 May 2013
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