The immigration law classifies certain individuals as "mandatory detainees," meaning that once they are placed into immigration custody, an Immigration Judge does not have the authority to grant them bond.  The mandatory detention provision, which primarily applies to individuals with criminal histories, states that the Government must take custody of a non-citizen when the non-citizen is released.  The question that courts have been grappling with is what happens when a non-citizen is released from criminal custody, and isn't arrested by immigration officials until a later date (whether that be hours, days, or years after the non-citizen's release).  Is that individual still subject to the mandatory detention provision?

The Board of Immigration Appeals (Board) has previously answered this question in the affirmative in Matter of Rojas, finding that the mandatory detention provision applies to non-citizens convicted of certain criminal offenses even when there is a gap between criminal custody and immigration custody.  But Mr. Olmos challenged this interpretation, arguing that the Government must place him into immigration immediately upon his release from criminal custody in order to rely on the mandatory detention provision as the source of authority for his continuing detention without a bond hearing.

The Tenth Circuit deferred to the Board, finding the mandatory detention provision to be ambiguous and the Board's interpretation to be reasonable.  The court also noted that the Government is under an affirmative duty to detain individuals described in the mandatory detention provision, and that even if they are required by the statute to do so immediately upon their release from criminal custody (as argued by Mr. Olmos), the Government's failure to do so would not negate its continuing obligation to detain that person.  The Tenth Circuit refused to permit the scenario where an Immigration Judge might grant bond to an individual that the Government had an obligation to detain, thus preventing the Department of Homeland Security (charged with detaining non-citizens for immigration violations) from fulfilling its continuing statutory obligation to detain.  

The full text of Olmos v. Holder can be found here: