By Robert L. Reeves & Nancy E. Miller

People in criminal detention count the days until their release from prison.  They look forward to doing simple things like taking a walk on the street, going to a restaurant, or visiting a friend.  However, if they are not U.S. citizens, when that release date comes, they may get an unpleasant surprise.  Instead of actually being released, they may simply exchange one jail for another – going from criminal custody to the custody of the Department of Homeland Security (DHS).    Even more devastating, after they are actually released and have gone home, DHS may show up at their home or work and take them into custody.  When such detainees ask about bond, they may be told that they are not eligible for bond because they are subject to mandatory detention. 

Under mandatory detention, DHS must, upon the alien’s release from criminal custody,  take into custody any alien who is inadmissible or deportable for having committed a variety of offenses. It does not matter whether the alien is released on parole, supervised release or probation.  However, it only applies to those non-citizens who have been released from criminal custody after October 8, 1998.
The list of mandatory detention crimes includes multiple criminal convictions, aggravated felonies, controlled substances offenses, firearms offenses, or crimes of moral turpitude for which the non-citizen has been sentenced to one year or more. This list not exhaustive nor does it contain all of the specific nuances for each ground that make it subject to mandatory detention.  However, the key word in the statute is “must”.  If the non-citizen is found to be subject to mandatory detention, DHS has no choice but to keep them in custody.  Unlike non-mandatory detention cases, a refusal of bond by the deportation officer cannot be reviewed by the immigration judge.  However, the question of whether someone is actually subject to mandatory detention is reviewable by both the immigration judge and the Board of Immigration Appeals (“BIA” or “Board”).

The BIA recently addressed the question of whether the release from criminal custody must have been for a crime that would render the non-citizen subject to mandatory detention.  In a reversal of a prior BIA decision, the Board ruled that the custody must have been for a mandatory detention crime. 
Luis Felipe Garcia Arreola had been an immigrant since 1983.  He was convicted of possession of a controlled substance in 1989 for which he was sentenced to 365 days in prison.  He was subsequently arrested and charged with the crime of assault on a female in 2002 and 2009.  Both charges were ultimately dismissed.  While he was in custody on the 2009 charge, DHS issued a detainer (an immigration hold) on him.  That means that, whenever he was released from criminal custody, either on bail or at the end of a sentence, he would be turned over to immigration authorities (DHS).  Upon his release from criminal custody in 2009, he was taken into DHS custody and placed into removal proceedings.  Garcia’s attorneys argued that the 2009 criminal charges did not subject him to mandatory detention and that he was, therefore, eligible for bond.  DHS argued that the fact that he was released from custody in 2009 and had committed a mandatorily detainable offense combined to make him subject to mandatory detention.  The immigration judge granted bond and the government appealed.  The Board had previously agreed with the government’s argument but they reconsidered their position and reversed themselves in the Garcia case.  The Board held that the non-DHS custody after October 8, 1998 must be directly tied to the basis for the ground for mandatory detention. 

In other words, the non-citizen must be in custody for a crime that would render him subject to mandatory detention.  Of course, if the immigrant is taken into custody for a parole or probation violation connected to the mandatory detention crime, that may be enough. 

Under this new case, people who were subject to mandatory detention may not be any longer. The dread of remaining in custody while the non-citizen is fighting his case has caused many a person to give up and go home.  It is always important to consult a knowledgeable and experienced immigration lawyer at the beginning of the case to determine if the person is truly mandatorily detainable and if the government is substantially unlikely to prevail on their removal ground (an important issue in this situation). Once it has been determined that grounds for mandatory detention do not exist, the analysis turns to whether the non-citizen has become eligible for release.