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Immigration and Mandatory Detention: Can My Client Get Bail?

Lawyer for Immigration and Mandatory Detention: Can My Client Get Bail?

Most law firms have some contact with persons born outside the United States. Whether as clients, friends of clients or even co-workers, Lawyers live and work alongside people who are subject to a different set of laws than United States Citizens. The Immigration and Nationality Act (INA), established a set of laws that apply only to persons born outside the United States who have not become American Citizens. These laws include provisions that seem to violate every idea most lawyers have regarding due process and fundamental fairness, however with a little preparation, you can make sure your client spends as little time as possible in Immigration custody.

Every week our firm receives calls from lawyers who have been contacted by a friends or family of non citizens suddenly taken into custody by the United States Immigration and Customs Enforcement, a division of Department of Homeland Security (DHS). This branch of DHS is commonly referred to as "ICE". They now cover a wide variety of immigration and customs enforcement tasks formerly handled by separate governmental agencies. With an annual budget of more than $5.7 billion, ICE is constantly looking for new ways to hold criminal and non criminal non citizens in Immigration detention facilities all over America.

Since 1996, ICE and its predecessor agency, the Immigration and Naturalization Service, have relied on a piece of legislation passed in 1996 to hold non citizens without bail while deportation proceedings proceed, and frequently for extended periods of time after a non citizen has been ordered removed. The 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA) and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) have had the combined effect of dramatically increasing the number of non citizens held by ICE.

AEDPA requires the mandatory detention of non-citizens convicted of a wide range of offenses, including minor theft and petty drug offenses. IIRIRA also expanded the list of offenses for which mandatory detention was required. Under these amendments, Congress required the detention of non-citizens convicted of two crimes of moral turpitude, or any one crime of moral turpitude for which a sentence of at least one year was imposed. In addition, by expanding the definition of "aggravated felonies" to include even misdemeanors under state law, Congress dramatically increased the categories of crimes for which mandatory detention could be imposed. Additionally, non citizens designated as "arriving aliens", or persons typically encountered by ICE or the Transportation Security Administration (TSA) at a border crossing point, also are typically not permitted to apply for bail if placed in custody.

These provisions dramatically increased the number of non citizens held by ICE. About 31,000 non-citizens are held in immigration detention on any given day, including children, in over 200 detention centers, jails, and prisons nationwide[ 1]. ICE currently maintains 22 detention facilities, usually through private corporations. In addition to these facilities, ICE also leases space from County Jails and State Prisons across the United States. The combined effect of the structuring of these facilities over great distances in cooperation with multiple subcontracting entities has resulted in a confusing and frustrating system separating families from their children, spouses and loved ones. As a result, the first priority in any case where a person has been arrested by ICE is finding the person. Unfortunately, after finding the person, lawyers frequently are confronted with the fact that the person is not eligible for bail or release from custody under any circumstances.

The best approach is to quickly assess each case to determine the prospect of obtaining bail from ICE or the Immigration Judge. By reviewing each non citizen's immigration and criminal history, you can formulate a strategy to ensure your client has every opportunity to remain in the United States, legally. Nothing frustrates a client's family and friends more than watching their lawyer apply for bail when the client is not eligible for bail. Immigration Judges and ICE attorney's will often go out of their way to make an attorney not familiar with Immigration law appear unprepared by using terms and acronyms that will leave an attorney looking through papers at counsel's table in open court for an answer that is simply not there.

The answer is to realistically access your client's options with an experienced immigration lawyer. With a little preparation and research, you can make sure your client has every opportunity the law provides.


Bernstein, Nina. "In-Custody Death". New York Times. Retrieved 2010-05-05.

usually through private corporations. In addition to these facilities, ICE also leases space from County Jails and State Prisons across the United States. The combined effect of the structuring of these facilities over great distances in cooperation with multiple subcontracting entities has resulted in a confusing and frustrating system separating families from their children, spouses and loved ones. As a result, the first priority in any case where a person has been arrested by ICE is finding the person. Unfortunately, after finding the person, lawyers frequently are confronted with the fact that the person is not eligible for bail or release from custody under any circumstances.

The best approach is to quickly assess each case to determine the prospect of obtaining bail from ICE or the Immigration Judge. By reviewing each non citizen's immigration and criminal history, you can formulate a strategy to ensure your client has every opportunity to remain in the United States, legally. Nothing frustrates a client's family and friends more than watching their lawyer apply for bail when the client is not eligible for bail. Immigration Judges and ICE attorney's will often go out of their way to make an attorney not familiar with Immigration law appear unprepared by using terms and acronyms that will leave an attorney looking through papers at counsel's table in open court for an answer that is simply not there.

The answer is to realistically access your client's options with an experienced immigration lawyer. With a little preparation and research, you can make sure your client has every opportunity the law provides.

This content was written on behalf of Greg Prosmushkin.

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