Mandatory Detention — A Major Risk for Non-Citizens in the Fourth Circuit

U Visa

By Immigration Attorney April Cockerham

Feb. 21,2014

Immigration attorneys who deal in removal defense know that for the past decade the issue of mandatory detention has been one of the most difficult aspects of representing noncitizens. Mandatory detention, a federal statute which was upheld as constitutional by the Supreme Court in Denmore v. Kim, 538 U.S. 510 (2003), gives ICE the authority to detain certain individuals for indefinite periods of time – during the entire duration of their immigration proceedings, or, if they’ve already been ordered removed, while they await travel documents from their home country.

For some people, such as those who are detained with U visas pending or those who are awaiting an individual hearing for” Cancellation of Removal” or asylum, this could mean waiting in jail for more than a year for a case to be resolved.  I have also seen individuals from certain countries to which removal is difficult sit in jail for up to nine months awaiting their travel documents, even though U.S. Immigration and Customs Enforcement (ICE) is required to re-evaluate the likelihood of receiving these documents every 90 days. In cases like this, ICE is free to continue to detain the individual as long as they think it’s probable that they’ll receive the document in a “reasonable” amount of time. Obviously, ICE’s definition of “reasonable” is much different than that of the detainees and their families.

In some circuits, progress is being made to whittle away at the legal foundation of mandatory detention. For instance, in the Ninth Circuit there have been three cases since 2008, including the 2013 decision of Rodriguez v. Robbins, Case No. 12-56734 (C.A. 9, Apr. 16, 2013), which have given hope to some long-term detainees and their families in that region.  Specifically, the Ninth Circuit Court of Appeals held in Rodriguez that all detainees who have been held in excess of six months have a right to a bond hearing to determine the necessity of continued detention. At that point, the immigration judge is given discretion to determine whether the person presents a danger to the community or is a significant flight risk, which the detainee must prove he or she is not by clear and convincing evidence.

Placing the decision-making power back in the hands of the judge after six months is a logical, economically sound, and humane policy that I wish all circuits would adopt. However, here in the Fourth Circuit we are not so lucky.  In our region, Rodriguez does not apply. There is no limit to the amount of time an individual can be held in custody awaiting a decision on an immigration case, or simply to be removed from the country.

What’s more, the Third and Fourth circuit courts have agreed with the Board of Immigration Appeals that ICE may take a person into mandatory detention at any point after they are released from serving their criminal sentence. See Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012) and Sylvain v. Attorney General of U.S.,714 F.3d 150 (3d. Cir. 2013). This means that, unlike in other areas where ICE must take an individual into immigration custody immediately or within a reasonable time after their release from criminal detention, they can find and detain an individual years after their criminal sentence was completed.

The strict policy of mandatory detention in our region underscores the absolute necessity of undocumented individuals with prior orders of removal or criminal records to consult with an immigration attorney to evaluate their situation, and to see whether anything may be done to protect them.  I see many cases in which a family is shocked to learn that a crime their spouse committed and served time for over a decade ago could subject them to months of jail time and possible deportation now. Understanding the risks and knowing your options is particularly important in our region, where the risk of mandatory detention is so high and the options are so limited.

April Cockerham is an accomplished immigration attorney who concentrates on the areas of deportation defense and family and humanitarian-based petitions, with a focus on Special Immigrant Juvenile Visas, U visas, and VAWA applications for victims of domestic abuse. If you have a question regarding deportation risks and policies, or anything related to immigration law from an individual or business perspective, contact her Washington, DC law office for a consultation.