Detention That No Bond Hearing Can Reach

Most custody disputes are arguments about evidence: who this person is, what they have done, and whether they will come back to court. A smaller set of cases never reaches that argument. For certain categories the statute directs custody and the regulation strips the immigration judge of authority to revisit it, so the hearing that would decide danger and flight risk simply does not happen.

Which categories are covered

The detention statute requires custody of any person who is inadmissible by reason of having committed an offense covered by the criminal inadmissibility ground; who is deportable by reason of an offense covered by the multiple crimes of moral turpitude ground, the aggravated felony ground, the controlled substance ground, the firearms ground, or the miscellaneous crimes ground; who is deportable for a single crime involving moral turpitude where the sentence imposed was at least one year; or who falls within the terrorism-related inadmissibility or deportability grounds.

The statute attaches this obligation when the person is released from criminal custody, and it says the obligation applies without regard to whether release was on parole, supervised release or probation, and without regard to whether the person may be arrested or imprisoned again for the same offense.

The Supreme Court has read that release language narrowly against the person detained: the custody requirement is not forfeited because immigration authorities failed to make the arrest at the moment of release. A gap of months or years between release from criminal custody and immigration arrest does not move the case back into the ordinary bond framework.

The regulation that closes the door

The statute directs custody; the regulation is what removes the judge. It states that an immigration judge may not redetermine conditions of custody imposed by the agency for several classes: people in exclusion proceedings; arriving noncitizens in removal proceedings, including those paroled after arrival; people described in the security and terrorism-related deportability ground; and people in removal proceedings subject to the mandatory custody provision.

The arriving category catches people who are not thought of as criminal cases at all. Someone who presented at a port of entry and was paroled in is within it, which means a bond request to the immigration judge cannot succeed regardless of family, employment or the strength of the case.

The same regulation carries a separate and easily missed provision. It states that nothing in it prevents a person from seeking a redetermination of custody conditions from the detaining agency itself under the parts of the regulations that govern inspection and detention. That request is made to the agency rather than to the court, and it is the only custody avenue open in the arriving category.

The hearing that is still available

The same regulation preserves one route. Nothing in it is to be construed as preventing a person from seeking a determination by an immigration judge that the person is not properly included within the listed paragraphs. That hearing is about classification, not release.

The argument is almost always the same shape. The government has charged a ground; the person contends that the conviction does not in fact establish that ground; and if the contention is substantial, the mandatory category does not apply and an ordinary custody hearing follows. The threshold is deliberately modest, because the hearing is not the merits trial on removability and does not decide it.

Preparation for it is documentary rather than personal. What decides the question is the text of the statute of conviction, the elements a jury would have had to find, and the contents of a conviction record that a judge is permitted to read. Character letters and hardship evidence, which carry a hearing about release, do nothing here.

Where the argument fails, the judge records that the person is properly included and no bond decision follows. This is why the work here is identical to the work done on the merits of a criminal charge, using the categorical approach to comparing a statute against a federal definition and, where the statute of conviction lists alternative elements, the limited record described in divisible statutes and the documents a judge may read.

Whether length of detention changes anything

Detention under these provisions can last a long time. The Supreme Court has upheld detention without an individualized bond hearing for the period necessary to complete removal proceedings, and has separately declined to read the detention statutes as implicitly requiring a fresh bond hearing once detention becomes prolonged.

That leaves constitutional challenges to prolonged detention, which are brought in a federal district court rather than in immigration court, and which have developed differently in different circuits. There is no single national answer, and a claim that succeeds in one circuit may not be available in another. Anyone considering that route needs advice specific to the circuit in which the detention facility sits, which is one reason mandatory detention counsel is engaged early rather than after months have passed.

What to do with the time

Where the category clearly applies and no classification argument exists, the realistic aim shifts from release to speed. Detained dockets move quickly, and a case that is ready moves faster than one that is not. Filing relief applications promptly, requesting biometrics appointments without delay, and getting country conditions or expert material in early all shorten the period in custody.

The opposite instinct, asking for repeated continuances while evidence is gathered, has a direct cost in custody time. The good cause standard that governs those requests is set out in continuances, good cause and waiting on another agency, and a judge weighing a request from a detained person is conscious of what delay means.

Where a favorable custody outcome is reached on a classification argument, the ordinary findings then apply, and the evidence for them is described in bond amounts, flight risk and danger findings. That packet is worth preparing in advance, because the classification ruling and the release decision are often made in the same sitting.