Potential Release for Detained Aliens Purportedly Ineligible for Bond
By Anish Vashistha
Los Angeles , CA
Individuals in immigration detention are oftentimes eligible for bond so that they can be free while fighting their removal case before the Immigration Court. However, certain individuals, including some Pakistani nationals, because of their type or number of criminal convictions, are determined by an Immigration Court to be ineligible for bond because they are “mandatory detainees.”
The mandatory-detention statutory provision requires detention without bond of certain categories of individuals primarily based on those individuals’ criminal convictions.
Although the mandatory-detention provision was written in restrictive terms, United States Immigration and Customs Enforcement, otherwise known as “ICE,” has been effective in expanding the interpretation of the provision to hold more individuals for longer. Until an individual detained under the mandatory-detention status is granted relief from deportation by an Immigration Court or is ready to be deported to his country of citizenship, ICE has taken the position that it can detain such individuals indefinitely. The Board of Immigration Appeals, the appellate court for all Immigration Courts in the United States, has for the most part supported ICE’s position, forcing Immigration Courts to find many detained individuals ineligible for a bond hearing.
Such indefinite detention weakens the will of detained individuals who otherwise have valid claims for relief from deportation resulting in legitimate forms of relief, which can take up to a year or longer to obtain, not being pursued in exchange for a quick deportation order. The negative effects of prolonged detention in the criminal context also go beyond the freedom of the detained individual. Prolonged detention hurts families who rely on the detained individual as the family’s sole or primary provider who, because of detention, is unable to earn a living. Despite these negative effects, ICE has not backed down from its legal position.
Fortunately, a number of United States federal courts in the country have refused to agree with ICE or the Board of Immigration Appeals. Multiple federal District Courts nationwide have explicitly disagreed with the Board of Immigration Appeals on the issue of mandatory detention and have granted petitions for writs of habeas corpus by detained individuals. In the Ninth Circuit, which includes the states of California, Nevada, Arizona, and Washington among others, the United States Court of Appeals has stated that individuals who are “mandatory detainees” and have been detained for a prolonged period of time, which for the most part is about six months, are eligible for a bond hearing if their appeal of the denial of their removal case has been dismissed by the Board of Immigration Appeals and is being reviewed by the federal Circuit Court. The reasoning of that decision in the Ninth Circuit also seems to include all “mandatory detainees” regardless of whether their case is before the federal Circuit Court, and some Immigration Courts have agreed with such an interpretation.
Therefore, simply because an individual has been detained by ICE and both the Immigration Court and the Board of Immigration Appeals have determined the individual to be a “mandatory detainee” does not mean that the individual must accept indefinite detention or otherwise be deported. Many times, the detained individual does not even need to appeal a denial of bond to the Board of Immigration Appeals and can simply file a petition for writ of habeas corpus with the federal District Court. Before deciding prematurely to give up on one’s removal case because of the prospect of indefinite detention, a detained individual or his family should consult with an immigration attorney experienced in such detention situations.
(The author, Anish Vashistha, is a licensed attorney with a nationwide immigration-law practice. He is a graduate from Georgetown University Law Center and Georgetown University’s School of Foreign Service. He has helped several Pakistani nationals obtain or maintain legal status in the United States. He may be contacted toll-free at 1 (866) 433-7016 or by email at Anish@HazanyLaw.com)