Depending on your immigration status and/or criminal record, you may be subject to mandatory detention. If you are in mandatory detention, you will have to fight your removal proceedings (make the requests for forms of relief) from inside the DHS detention center or the jail or prison contracting with DHS. You will not be released from the detention center until your removal proceedings are completed.
If you win your immigration case, then you will be released. If, however, you lose and are ordered deported, you will remain in the detention center until you leave the U.S.
Noncitizens who are deportable for certain crimes (including possession of a firearm) must be detained. In 2000, the BIA held if you were released from physical custody after criminal arrest (regardless of whether you were sentenced to incarceration) after October of 1998, you are subject to mandatory detention.
In 2003, the Supreme Court decided the government is allowed to hold noncitizens who have been convicted of any crime that we are going to explain below, in mandatory detention without a bond hearing. So, if you were convicted of any of the crimes listed below and released from physical custody after October of 1998, you are subject to mandatory detention and are ineligible for a bond. If you are in this situation, you will have to defend your removal proceedings from within the detention center.
Mandatory Detention of Inadmissible Noncitizens
If you are an inadmissible noncitizens, you may be subject to mandatory detention if you have committed any offense listed in INA 212(a)(2); 8 U.S.C. 1182(a)(2) (2006) or INA 212(a)(3)(B); 8 U.S.C. 1182(a)(3)(B) (2006).
Some of the grounds for inadmissibility that make you subject to mandatory detention include, but are not limited to:
– one CIMT, although the petty offense exceptions apply;
– a controlled substance offense;
– a drug trafficking offense;
– two or more offenses with aggregate sentences of five years;
– or a domestic violence offense or violation of an order of protection.
Mandatory Detention of Deportable Noncitizens
Some of the grounds for deportability that make you subject to mandatory detention include, but are not limited to:
– two CIMTs at any time;
– an aggravated felony;
– a controlled substance offense, with the exception of possession of thirty grams of marijuana for personal use; or
– a firearms offense.
You may also be subject to mandatory detention if you are a suspected terrorist.
If you are not subject to mandatory detention, but you are being detained in an immigration detention center (not the same as serving your criminal prison sentence), you may be able to request a bond hearing, sometimes referred to in immigration court as a “Joseph Hearing”.
A bond is similar to paying bail for your release from prison. If you are released on an immigration bond, you may be able to defend your removal proceedings from outside of the detention center. To prove eligibility for bond, you must demonstrate that you do not meet the requirements for mandatory detention and that you are not an arriving alien.