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Mandatory Detention while facing Removal from United States
It would take time to remove a non-citizen even under the expedited removal process. What happens to the non-citizen, non-immigrant facing the removal? He is usually taken into custody and is confined under mandatory detention. And the axe falls on those with criminal conviction. The immigration law makes that detention compulsory. 8 USC § 1226(c), INA § 236(c). And sadly, there is no release on bond.
It is legal and constitutionally valid. The Supreme Court has already approved of it. Demore v. Kim, 538 U.S. 510, 523 (2003) (“detention during deportation proceedings it is a constitutionally valid aspect of the deportation process.”). So, under both circumstances—if you are inadmissible or deportable-- mandatory detention is on cards. As such all non-citizens in removal proceedings may be detained, and certain non-citizens cannot be released from their detention. Section 1226 provides the Attorney General with the authority to detain non-citizens. Section 1226(c) then provides for the mandatory detention of a set of non-citizens in custody pursuant to the sentence of a criminal court. Detention under this provision is mandatory for any alien falling within its scope and “may end prior to the conclusion of removal proceedings only if the alien is released for witness-protection purposes. Under what offenses does the mandatory detention apply?
Let us look at it slightly more in a detailed manner. A non-citizen shall be taken into custody who-
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is inadmissible by reason of having committed any offense covered in section 1182(a)(2). These crimes include human trafficking, drug trafficking, crimes of moral turpitude, drug conspiracies, prostitution, firearm offenses, treason, espionage, and the like. § 1226(c)(1)(A)-(D) (citing offenses listed in 8 U.S.C. §§ 1182, 1227)
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is deportable by reason of having committed any offense of multiple criminal conviction of two or more crime involving moral turpitude. (section 1227(a)(2)(A)(ii)) aggravated felon (1227(a)(2)(A)(iii), Controlled substance (B), firearm offenses (1227(a(2)(C), or treason etc. (1227(a)(2)((D) of this title,
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is deportable under section 1227(a)(2)(A)(i) (for crime of mortal turpitude and sentenced to at least one year of jail)
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owing to terrorist activities is either inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of the immigration laws.
The grounds for inadmissibility are broader than those for deportability. Compare §1182(a)(2)(A)(i)(I) with §1227(a)(2)(A)(i) (reflecting different treatment for crimes involving moral turpitude). However, if the continued detention became unreasonable or unjustified,” the Due Process Clause may entitle even those mandatorily detained under § 1226(c) “to an individualized determination as to his risk of flight and dangerousness.”
We have had detainee released under such accentuating circumstances. We have filed habeas petitions for the release of the detainees. Sometimes we have had some interesting objection by the DHS in the past. DHS would profess that they were giving freedom to the detainee by virtue of deporting him. And that the alien by obtaining stay against deportation has brought it on himself, the continuing confinement. And for reason detainee having obtained stay against deportation, he should be denied the relief of habeas freedom. We challenged the same by arguing that one’s right—right to avail judicial relief—cannot be made a price for right to be free.
