Mandatory Detention Immigration Law

Jose Tuerbe Tolon

09/04/08

When the immigration  laws were changed in 1996, a system of mandatory detention for certain immigrants was developed. Currently, most immigrants, including legal permanent residents, who have been convicted of criminal conduct (even misdemeanors) can be subject to mandatory detention. Mandatory detention means that after a non-citizen is released from prison or jail after having served his or her sentence they can be detained by Immigration and Customs Enforcement (ICE) if the conviction falls within a certain category of offenses that render the person removable or deportable from the United States.  Once detained, there will be no right to a bond determination or hearing like there is in criminal court.

A person; however, who has been subjected to mandatory detention may be able to request a hearing before the Immigration Judge which is called a “Joseph Hearing”.  In this hearing, the attorney will argue that the criminal conviction does not fall under one of the grounds of deportability or removability that result in mandatory detention.

Although mandatory detention seems to violate the norms of the U.S. Constitution, it has often been the case that the treatment of immigrants by the Federal government has not been required to conform to the constitutional standards as applied to U.S. citizens. The concept of arresting a person and holding them in a detention facility for an indefinite period of time, even though they have already served jail or prison time for the original conviction seems to be a clear due process or cruel and unusual punishment violation. Since the United States Supreme Court and the Federal government have refused to find that either of those violations exists; however, a Joseph Hearing remains the only viable option for relief from mandatory detention.