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ICE Detention For Removal And Remedies to Secure Release

Every year, hundreds of immigrants languish for months and often years in county jails or private detention facilities awaiting deportation and removal from the United States. If you or someone you love has been detained by Immigration and Customs Enforcement (ICE), our team at Wilson Law Group will help protect your rights and fight for your freedom. Our firm was founded in 2003 in Minneapolis, and our immigration attorneys offer creative and innovative legal strategies for complicated immigration challenges.

Long-Term ICE Detentions

Some people are still fighting their cases, whereas others have been held because ICE is trying to force a foreign government to issue a travel document. Many are appealing removal orders, and many never had a chance to argue for an opportunity to secure their release in front of an immigration judge. They are denied the opportunity for a “bond hearing,” where the judge would determine whether they are a flight risk or a danger to the community. Many beg for the chance to argue for their release, but as the months tick on, the pressure to give up on their legal battle often becomes too much to bear.

Federal law does empower ICE to detain people. However, there are limits. ICE does not willingly acknowledge these limits. This is when turning to federal court becomes necessary to see a writ of habeas corpus. The petition asks a federal judge to declare that the individual’s prolonged detention violates their Due Process rights under the U.S. Constitution.

The first question is which provision of the Immigration and Nationality Act (INA) is controlling the detention. The rules differ substantially for each category, as does your likelihood of success. Broadly speaking, there are three types of habeas petitions: (1) 8 U.S.C. § 1231, (2) 8 U.S.C. § 1226(c), and (3) 8 U.S.C. § 1226(a). The petitions become easier in that order.

INA Category One Detentions

The first category, under section 1231, is the most challenging. It is reserved for those detained during their “removal period.” To determine if this is the correct category for your situation, we need to ask whether your removal period has started. Section 1231 only controls “during” and “after” your removal period, not before. The question, therefore, is whether the period is triggered. If so, section 1231 guides a Federal Court’s analysis on the habeas petition.

Under the statute, three events can trigger the removal period, but only the LATEST of the three start the removal period:

  • The date the order of removal becomes administratively final (e.g., exhausted your appeal at the Board of Immigration Appeals)
  • If the order is judicially reviewed and if a court orders a stay of the removal of the alien (e.g., if you exhausted your appeal at the BIA but file a “Petition for Review” and the court orders a stay), the date of the court’s final order
  • If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement

Again, only the latest of the three starts the removal period. For example, if a client has an administratively final order of removal under subsection (i) but meets the requirements of subsection (ii) (e.g., a Circuit Court is judicially reviewing the order and has granted a stay of removal), the removal period only begins when the Circuit Court issues a final order. If she meets the requirements of subsection (iii), her removal period only begins when she is released from detention.

If section 1231 does control, the chances of success are bleak. Under the statute, the period lasts 90 days. The Attorney General “shall” detain someone “during” the period, and “may” detain someone “after” the period. After the 90-day period, the Supreme Court stated in Zadvydas v. Davis that a petitioner’s eligibility for a bond hearing depends on whether he or she can show there is “no significant likelihood of removal in the foreseeable future.” This is an incredibly formidable obstacle, and one that few petitioners can overcome.

INA Category Two Detentions

The second and third categories, both under 1226, include those who are detained before the “removal period.” The second deals with individuals subject to “mandatory detention” under subsection (c), and the third deals with those not subject to mandatory detention, falling under subsection (a). The distinction between mandatory detention and non-mandatory detention is a detailed topic for another day and another blog. There are exceptions and nuances, but as a general summary, mandatory detention controls if any one of the following applies ot you:

  • Inadmissible for committing what is termed a “Crime of Moral Turpitude (CIMT)”
  • Inadmissible for committing a controlled substance offense
  • Inadmissible for having two or more offenses for which the aggregate sentences were five years or more
  • Inadmissible or deportable for terrorist activities
  • Deportable for committing a CIMT for which you were sentenced to 365 days or more in jail
  • Deportable for committing two or more CIMTs arising from different events
  • Deportable for committing any “aggravated felony” (another legal term of art)
  • Deportable for committing any controlled substance offense (other than a single possession marijuana charge for own use of 30g or less)
  • Deportable for certain firearm offenses
  • Deportable for a host of miscellaneous crimes

If this category may fit your situation, you are not alone. Most habeas petitions filed in federal court deal with prolonged mandatory detention under section 1226(c). While falling within this category means you will not get a bond hearing right away and ICE has legal authority to detain you before your removal period, it does not mean that ICE can detain you indefinitely.

In Demore v. Kim, the Supreme Court clarified that detention under 1226(c) must only be for the “limited period” of removal proceedings and, at some point, such detention may violate a detainee’s due process rights. The Court weaved references to brevity throughout the decision, ultimately estimating that the period would last “roughly a month and a half in the vast majority of cases” and about “five months in the minority of cases in which the alien chooses to appeal.” Justice Kennedy wrote separately to emphasize the importance of temporal limitations, stating that if a Petitioner’s detention becomes “unreasonable or unjustified,” he becomes entitled to a bond hearing.

Interpreting Demore, District and Circuit courts around the country have held in favor of petitioners in section 1226(c) habeas cases. Some courts have explicitly outlined specific factors that weigh in the analysis, while others have employed their own case-by-case analyses. While there is no bright-line rule — e.g., after “X” number of months, you deserve a bond hearing — courts have consistently held that these detentions must be brief and reasonable. Courts have struck down detentions ranging from 5 months to 84 months. Many courts have found that after one-year, due process concerns become heavily implicated. These cases are complicated, and you should consult with an attorney if you think you may have a solid case for a federal habeas petition.

INA Category Three Detentions

Finally, the third category — 1226(a) detentions — are the simplest. Non-citizens may be arrested and detained pending a deportation decision. In other words, ICE can detain individuals in active removal proceedings. They may release the individual on a bond, and that bond will not be less than $1,500. Note that bond is often significantly higher than this statutory minimum, and this amount varies substantially based on which area of the country you reside.

Deportation Defense And Representation

At Wilson Law Group, our attorneys have decades of experience crafting innovative strategies for removal and deportation defense, protecting detainees and their rights. We will listen to your story, make sure that you understand the proceedings and what is happening and fight for your freedom and release.

Schedule A Free Consultation With A Deportation Defense Attorney

Our firm offers free initial consultations so that we can understand your circumstances and tell you more about how we can help you with your case. To schedule your free appointment, call our office at 612-430-8022 or send us an email using our website form.