Mandatory detention is a term used in immigration law when an individual is detained by U.S. Immigration and Customs Enforcement (ICE) and is not eligible for a bond. It means that during the immigration proceedings, they will not be eligible to leave detention and will therefore have to undergo the entire proceedings in front of the immigration court from jail. To learn more about mandatory detention and what it could mean for you, call and schedule a consultation with a DC immigration lawyer today.
Who Is Subject to Mandatory Detention?
Mandatory detention applies to people who are in removal proceedings, which is another term for in deportation proceedings, and who fall under one of the enumerated grounds of mandatory detention. The grounds of mandatory detention include both elements of the grounds of inadmissibility that are found in section 212(a) of the Immigration and Nationality Act, and also section 237 of the Immigration and Nationality Act, which covers aggravated felonies and offenses that trigger deportability or removability.
There is a broad list of crimes and conduct that can render a person subject to mandatory detention. For instance, you’ll be subject if you have multiple convictions where the aggregate sentence is 5 years or more of imprisonment. Also, most controlled substance offenses, some prostitution-related offenses, terrorist activity, human trafficking, and money laundering offenses can also make you subject to mandatory detention. You’ll also be subject to it if you have convictions for two or more crimes that involve moral turpitude, any aggravated felony, any firearm offense or drug abuse or addiction or espionage, sabotage or treason.
Can Individuals Subject to Mandatory Detention Be Released on Bond?
Generally, being subject to mandatory detention means that the person is not eligible for a bond. However, there are some minor exceptions to this.
There’s one type of hearing called a Joseph Hearing. The name comes from a Board of Immigration Appeals case (pdf) that was decided in 1999, and it allows you to request a hearing that isspecifically targeted towards arguing that your criminal offense should not subject you to a mandatory detention. In most cases, people are subject to mandatory detention because of a criminal conviction.
However, there is no “master list” that tells us which state statutes subject a person to mandatory detention. In some cases, the DHS prosecutor or ICE official may determine that the crime you’ve been convicted of should subject you to mandatory detention, but there could be an equally valid argument on your side that it shouldn’t. It’s your and your attorney’s responsibility to present this argument in court, and the venue in which you do it is the Joseph Hearing. The sole purpose of this type of hearing will be to litigate whether or not the crime actually subjects you to mandatory detention. It’s completely separate and distinct from the rest of the immigration court proceedings.