The law that establishes that ICE can hold a person in immigration custody without the opportunity for bond is termed “mandatory detention”. This law found in section 236(c) of the Immigration and Naturalization Act mandates that the Attorney General shall take an alien into custody after having committed one of the enumerated offenses described in the statute. For example, a conviction for possession of a controlled substance, an aggravated felony, or a firearm offense. However, the law tempers when ICE may invoke mandatory detention, because ICE must apprehend the alien “when released” from State custody.
The Board of Immigration Appeals interpreted the phrase “when released” to mean that ICE can take an alien into custody at any time after they have committed a qualifying offense, sometimes years after they have been released from State custody. In a recent case that I had, ICE held my client on Mandatory Detention, even though he was never in State Custody following his conviction. This seemingly plain language of “when released” has generated numerous decisions in the Federal District Courts across the country. Most of these decisions have refused to follow the BIA’s interpretation of “when” and have found that to hold a person on Mandatory Detention, ICE must take the person into custody immediately after their release from State custody.
If the Immigration Judge refuses jurisdiction and ICE is holding a Respondent under INA 236(c), the Respondent may ask the Immigration Judge to review whether ICE is properly invoking Mandatory Detention. If the Immigration Judge does not rule in the Respondent’s favor, the Respondent’s attorney can bring a Habeas Petition in Federal District Court and challenge Mandatory Detention.
