Detention of Non-US Citizens While in Proceedings

By: Dennis E. Chua, Esq.

Non US citizens including lawful permanent residents who have committed certain crimes and found to be removable will be subject to the mandatory detention provisions of the Immigration and Nationality Act. The mandatory detention provisions require that these non-US citizens be detained pending the outcome of their removal proceedings. Detention is required even for individuals convicted of crimes as minor as shoplifting or misdemeanors with sentences that may not involve jail time.

Non-US citizens who meet the criteria of the mandatory detention provision will be detained even if they have a relief in removal proceedings. Non-US citizens who come into the initial custody and who are subject to mandatory detentions will be detained and will not be released even if the individual wishes to post bond to secure his temporary release.

The US Supreme Court has upheld the constitutionality of the mandatory detention provisions as not violative of the due process clause. The enactment of the mandatory detention provision has been justified to ensure the attendance of these individuals in their removal hearings and to prevent criminal aliens from the commission of criminal acts.

Such a law is harsh as it penalizes individuals who have truly reformed and have no intention of committing further crimes in the US. It restrains individuals of their right to liberty even if immigration courts have not found them removable. It deprives detained non-US citizens from continuing with their employment to support their families. It prevents non-US citizens to be with their families while their removal cases are being heard.

It is important to note the type of crimes which will subject an individual to mandatory detention and these include among others the following:
  1. Aggravated felonies;

  2. Drug offenses;

  3. Firearms offense;

  4. Commission of two or more crimes involving moral turpitude;

  5. Persons involved in terrorist activity;

  6. Espionage, treason, sabotage;

  7. Commission of a crime involving moral turpitude for which the sentence of imprisonment is at least one year.

Even if the government has found a non-US citizen to be subject to the mandatory detention provision and has refused to release the individual on bond, the individual may still request for a bond hearing and argue that he was not properly included within the mandatory detention provision and avoid the harsh consequences of the law.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) -  a full service law firm with offices in San Francisco, San Diego and Manila.  The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277;
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