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Court Limits Attorney General’s Discretion to Use Mandatory Detention Provision

An equally divided en banc First Circuit affirmed the U.S. District Court for the District of Massachusetts, holding that the bar to bonded release found in the detention mandate in INA §236(c) applies only to those specified criminal undocumented immigrants whom the Attorney General took into custody when they were released from criminal custody. The court concluded that the two petitioners were not taken into immigration custody when they were released from criminal custody, because they had been released from criminal custody years before their immigration custody began. As a result, the court found that the detention mandate did not bar either petitioner from seeking release on bond pursuant to the Attorney General’s discretionary release authority.

Mandatory Detention is Limited

In a class action habeas petition brought by noncitizens with criminal convictions subject to mandatory detention under INA §236(c), the Ninth Circuit affirmed the district court’s class certification order and preliminary injunction requiring the government to provide all class members with bond hearings under §236(a). The court held that, under the plain language of §236(c), the government may detain without a bond hearing only those noncitizens with criminal convictions whom it takes into immigration custody “promptly” upon their release from the triggering criminal custody, not those detained long after.

In detention for more than 6 months?

The Second Circuit affirmed the judgment of the District Court for the Southern District of New York, holding that, in order to avoid the constitutional concerns raised by indefinite detention, an immigrant detained pursuant to INA §236(c) must be afforded a bond hearing before an Immigration Judge within six months of his or her detention. Following the Ninth Circuit, the court also held that the detainee must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community.

Bond Hearings

I have an Immigration Hold. Now What?

Question: I have a friend who has an immigration hold. He is finishing up a sentence for a crime. What can be done?

Answer: A removable alien who is detained has the right to a bond hearing unless he or she is removable for security reasons, is subject to mandatory detention because of the commission of certain crimes, or is an arriving alien, which may include a returning LPR. The alien should not be detained or required to post bond unless there is a finding that he is a threat to national security or is a poor bail risk. A person with a criminal conviction is not eligible for release except under limited circumstances.  An applicant is also detained if he or she falls within the expedited removal provisions and cannot get bond until credible fear is established and are detained pending IJ’s review. ICE has established criteria for granting parole to a person who has been determined to have a credible fear of persecution. If a person claims fear of persecution at a land border port of entry and the fear is unrelated to Canada or Mexico, the person may be required to wait in Canada or Mexico. If the fear is related to Canada or Mexico, the person must be detained pending the IJ’s review.  Similarly, a person who is deemed to have not been lawfully admitted is denied bond. DOJ regulations also appear to preclude persons seeking admission from obtaining bond before an IJ.
Question: Is Mandatory Detention constitutional?
Answer: The constitutionality of mandatory detention has been upheld. For example, the Ninth Circuit has ordered a  bond hearing for LPR who has been imprisoned for 2 years and 8 months, finding that “it is constitutionally doubtful that Congress may authorize imprisonment of this duration for lawfully admitted resident aliens who are subject to removal. Also, it is a violation of substantive due process to detain a person subject to deportation for 1½ years, particularly when it is unlikely he can be physically removed.
It has been ruled that “simple fairness, if not basic humanity, dictates that a court should take into consideration the entire period in which a person has lost his liberty such as detention over 2½ years is unreasonable.
Question: Can I appeal a bond decision?
Answer: Yes. Also, persons granted asylum, withholding or CAT by the IJ may be released pending DHS appeal. Although DHS regulations provide that persons granteddeferral under CAT may remain in detention, DHS has stated, “[i]n general, it is ICE policy to favor release of aliens who have been granted protection relief by an [IJ], absent exceptional concerns such as national security issues or danger to the community and absent any requirement under law to detain…. Arriving aliens should [also] be considered for parole.”
You can either appeal the bond denial itself, or the amount of the bond as being unreasonable.
Question: When is detention mandatory?
Answer: Three primary classes of noncitizens are ineligible for bond: (1) certain criminals and terrorists; (2) “arriving aliens”;  and (3) individuals with administratively final orders of removal.
Question: What types of crimes make somebody ineligible for bond?
Answer: Those who are deportable for committing one crime of moral turpitude if the sentence included a term of imprisonment of a year or more; multiple crimes of moral turpitude; aggravated felonies; controlled substance offenses; certain firearms offenses or certain espionage and sabotage crimes.
There are usually many ways to fight an immigration detainer, a denial of bond, a claim of mandatory detention, etc. Don’t just give up because you received a denial.

Prosecutorial Discretion: How to avoid deportation

Prosecutorial Discretion: A tool to Avoid Deportation

Question: I got into a minor criminal situation and now I am very afraid that I will be placed into deportation proceedings. What can I do?

Answer: There are several forms of relief that you might be eligible for in proceedings. However, one very effective tool that I would look into would be known as Prosecutorial Discretion.

Question: What is Prosecutorial Discretion?

Answer: Prosecutorial Discretion can be used in a variety of different situations. Some examples would include: deciding to issue or cancel a notice of detainer; deciding to issue, reissue, serve, file, or cancel a Notice to Appear(NTA); focusing enforcement resources on particular administrative violations or conduct; deciding whom to stop, question, or arrest for an administrative violation; deciding whom to detain or to release on bond, supervision, personal recognizance, or seeking expedited removal orother forms of removal by means other than a formal removal proceeding in immigration court.

Question: What happens if the Prosecutorial Discretion is granted? What would I get?

Answer: Some will depend upon what exactly you are asking for and where in the proceedings you are. However, generally, if granted, Prosecutorial Discretion can stop a deportation/removal proceeding, or can keep one from being filed in the first place, or can reopen a removal order already issued. It can settle or dismiss a proceeding; grant a deferred action, grant parole, or staying a final order of removal; or it can respond to or join in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit.

Question: What factors are considered when deciding on whether to grant a request for Prosecutorial Discretion?

Answer: There are a lot of different items that are considered. They are as follows:

– the agency’s civil immigration enforcement priorities;
the person’s length of presence in the United States, with particular consideration given
to presence while in lawful status;
the circumstances of the person’s arrival in the United States and the manner of his or her
entry,particularly if the alien came to the United States as a young child;
the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are
pursuing a college or advanced degrees at a legitimate institution of higher education in
the United States;
whether the person, or the person’s immediate relative,has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in
the person’s criminal history, including arrests, prior convictions, or outstanding arrest
the person’s immigration history, including any prior removal, outstanding order of
removal, prior denial of status, or evidence of fraud;
whether the person poses a national security or public safety concern;
the person’s ties and contributions to the community, including family relationships;
the person’s ties to the home country and condition in that country;
the person’s age, with particular consideration given to minors and the elderly;
whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
whether the person is the primary caretaker of a person with a mental or physical
disability, minor, or seriously ill relative; ;
whether the person or the person’s spouse is pregnant or nursing;
whether the person or the person’s spouse suffers from severe mental or physical illness;
whether the person’s nationality renders removal unlikely;
whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as a relative of a U.S. citizen or permanent resident;
whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as an asylum seeker, or a victim of domestic violence, human
trafficking, or other crime; and
whether the person is currently cooperating or has cooperated with federal, state or local
law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department ofLabor, or National Labor Relations Board, among others.
Question: Can I do this myself?

Answer: It is always possible, but it would be much better for you to obtain professional help. It is not easy to get this approved, but it is certainly possible if done properly.

Mandatory Detention is not so Mandatory

Question: I have a friend who is in detention and I am being told he cannot get out because of mandatory detention. Can you elaborate what this is and why is he not permitted to exit?

Answer:  After 1996, the Immigration Laws were much more severe, including a very wide based mandatory detention policy. However, and finally, a case has just been issued by the BIA (Board of Immigration Appeals) which softens and narrows the mandatory detention policy.

The basic facts of the case is as follows. Luis Felipe Garcia-Arreola is a long-time permanent resident with a drug conviction.  This conviction makes Mr. Garcia-Arreola deportable but eligible for 212(c) relief.  After getting arrested on a domestic assault and transferred to ICE custody, ICE sought mandatory detention pursuant to INA § 236(c) and Matter of Saysana, the case which originated the mandatory detention policy.

In a brave decision, Immigration Judge Teresa Holmes-Simmons distinguished Saysana with the facts of Mr. Garcia Arreola’s case and recognized that Saysana had been universally rejected by Federal District Courts.  DHS appealed and during this time, the Saysana case itself was rejected by the First Circuit Court of Appeals.  DHS then changed its position and retreated.  Finally, the BIA overruled Saysana!

The good news:  the holding specifically states that mandatory detention applies where there has been a (a) release (b) from non-DHS custody (c) after October 8, 1998, (d) that is “directly tied” to the basis for detention under INA §§ 236(c)(1)(A)–(D).

The bad news:  Primarily because it was unaddressed by the parties, the Board left standing another horrible mandatory detention decision – Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), a deeply-divided Board decision which concluded mandatory detention applies even if ICE fails to assume custody of an alien “when released.”

The Board’s “resort to contortions” in Rojas and Saysana has only resulted in creating more chaos in our immigration detention system and wasted hours and resources on needless litigation, all in an effort to prevent an Immigration Judge from exercising discretion in bond redetermination decisions.  See Rojas, 23 I&N Dec. at 130 (dissent).

Thus, while there is good news in the issuance of this decision of narrowing the mandatory detention policies, there is work to do and we should continue to fight in the courts and the BIA to get other similarly bad decisions vacated or overruled.

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