BIA Subjects Applicants for Admission to Mandatory Detention

The Board of Immigration Appeals has determined that an applicant for admission who is arrested and detained without a warrant while arriving in the United States, whether or not at a port of entry, and subsequently placed in removal proceedings is detained under section 235(b) of the Immigration and Nationality Act and is ineligible for any subsequent release on bond under section 236(a) of the INA.

“An ‘applicant for admission; is defined, in relevant part, as an alien ‘who arrives in the United States whether or not at a designated port of arrival.’ An alien, like the respondent, ‘who tries to enter the country illegally is treated as an ‘applicant for admission.’” The Board further noted that the only exception to mandatory detention of applicants for admission is parole, which suggests that anyone who meets the definition of an applicant for admission who is not detained is actually paroled in the United States. However, the parole is terminated by the service of a Notice to Appear, which in turn, permits later detention under section 235(b) of the non-citizen.

The full text of Matter of Q. Li is found here:

https://www.justice.gov/eoir/media/1400431/dl?inline

Supreme Court Upholds Mandatory Detention for Old Criminal Convictions

The Supreme Court has determined that the mandatory detention provisions in INA 236(c) apply to any of the enumerated grounds, so long as the person was released from criminal custody after October 8, 1998. The implication of this decision is that many individuals convicted years ago of relatively minor crimes (i.e., simple drug possession, theft) can now be detained without a bond hearing by immigration authorities. The Supreme Court noted that the petitioners in this matter did not mount a constitutional challenge to the mandatory detention provision, only a statutory one, leaving open the possibility that the Court may reconsider the constitutionality of the mandatory detention scheme in a future case.

The full text of Nielsen v. Preap can be found here:

https://www.supremecourt.gov/opinions/18pdf/16-1363_a86c.pdf

Ninth Circuit Construes Mandatory Detention Provision

The Ninth Circuit has limited the mandatory detention provision for non-citizens convicted of certain criminal offenses.  Specifically, the mandatory detention provision is triggered only if the non-citizen is transferred promptly from criminal to immigration custody.  If there is a significant break between criminal and immigration custody, the non-citizen is entitled to a bond hearing.  The court rejected the Board of Immigration Appeals' decision in Matter of Rojas, finding it contradictory to the plain language of the mandatory detention statute.  The court noted that it was not requiring an immediate transfer from criminal to immigration custody, but declined to specify what qualified as a prompt apprehension, noting that the case did not present the question of how quickly apprehension by immigration authorities must occur to trigger the mandatory detention statute.  Nonetheless, the court did not alter the class certified by the District Court, which includes those not immediately detained by immigration authorities upon release from criminal custody.

The full text of Preap v. Johnson can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/04/14-16326.pdf

Eleventh Circuit Addresses Prolonged Mandatory Detention

The Eleventh Circuit has ruled that the prolonged detention of non-citizens with criminal records without bond hearings raising serious due process concerns.  Though the court declined to adopt a bright line rule requiring a bond hearing at any particular time period (i.e. after 6 months of detention), it did hold that a habeas petition could be filed when detention is no longer reasonable in light of the goals of the mandatory detention statute (preventing flight and future criminal acts).  The court outlined several factors to be considered in this analysis: 1) the amount of time that the criminal alien has been in detention without a bond hearing; 2) why the removal proceedings have become protracted (i.e. did the non-citizen request repeated continuances or file frivolous applications); 3) whether it will be possible to remove the criminal alien after there is a final order of removal; 4) whether the alien’s civil immigration detention exceeds the time the alien spent in prison for the crime that rendered him removable; and 5) whether the facility for the civil immigration detention is meaningfully different from a penal institution for criminal detention. 

The court noted there would be little chance that a non-citizen's detention would be unreasonable before the 6 month mark, but would probably become unreasonable by the 1 year mark.  However, even at that time, the non-citizen will bear the burden of proving that he is not a flight risk or a danger to the community.  

The full text of Sopo v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201411421.pdf

First Circuit Narrows Mandatory Detention Provisions

In an en banc decision, the First Circuit has affirmed District Court decisions finding that the mandatory detention provisions for immigrants with criminal histories only apply if the Department of Homeland Security takes the immigrant into custody at the time he is released from criminal custody.  If the person is released from criminal custody and later is taken into immigration custody, he will be eligible to seek a bond from an Immigration Judge.

The full text of Castenada v. Souza can be found here: http://media.ca1.uscourts.gov/pdf.opinions/13-1994P2-01A.pdf

Ninth Circuit Revisits Prolonged Detention

In the latest decision in what can only be described as a saga, the Ninth Circuit affirmed that bond hearings are mandatory when a non-citizen has been detained for at least six months.  Recognizing the harm of prolonged detention, the Court also mandated that the Immigration Courts provide bond hearings every six months to evaluate continued detention and empowered Immigration Judges to order the release of a non-citizen without requiring the posting of a bond.  This is wonderful decision - hats off to the fantastic litigators who have been working on prolonged detention issues for years!

The full text of Rodriguez v. Robbins can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/28/13-56706.pdf

Second Circuit Addresses Prolonged Detention

The Second Circuit construed the "mandatory detention" provision of the Immigration and Nationality Act.  They found that a non-citizen who is convicted of a crime that falls under the provision need not be sentenced to a prison term for the criminal offense to come within the ambit of the detention provision.  In addition, even though the statute empowers ICE to take a non-citizen convicted of such an offense into custody "when the alien is released" from criminal custody, the Second Circuit determined that a break between criminal and immigration custody does not undermine ICE's authority to detain a non-citizen under the mandatory detention provision.  However, the Court also determined that continued detention for 6 months without a bond hearing violated the right to due process.  Thus, detainees in the Second Circuit who have been convicted of a mandatorily detention offense will be entitled to a bond hearing to evaluate whether they are a danger to the community or a flight risk after they have been incarcerated for 6 months.  

The full text of Lora v. Shanahan can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/0d6713f3-cfd7-437f-9bd9-77e159e4b6b4/1/doc/14-2343_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0d6713f3-cfd7-437f-9bd9-77e159e4b6b4/1/hilite/

10th Circuit Addresses Mandatory Detention Provisions

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: http://www.ca10.uscourts.gov/opinions/14/14-1085.pdf