It is all too common for nonimmigrants to be detained by U.S. Immigration and Customs Enforcement for a prolonged period with little hope of release while their case is pending. We have a case right now of a person who has been held for over a year already. Fortunately in a recent decision, the U.S. Court of Appeals for the Second Circuit stated that this detention raises serious constitutional issues. The court decided that individuals must be given the opportunity for a bail hearing and placed a high burden on the government to establish why an individual should be denied bail.
Since 1996, the law has required mandatory detention of certain undocumented immigrants who have committed crimes involving moral turpitude, firearm or drug-related offenses, and similar serious crimes. (See 8 U.S.C. § 1226(c) – Apprehension and detention of aliens). It doesn’t matter whether the crime constitutes a felony or misdemeanor; the individual is still subject to mandatory detention. The result has been that many immigrants have languished in jail waiting to be deported, which can take a year or more. They have had no right to a bail hearing and so had very little hope of being released while their case was pending.
This new decision has established a bright line rule. Although the government does have the right to detain these individuals, it cannot be for an indefinite period. Instead the new rules state:
- An immigrant detained pursuant to 8 U.S.C. § 1226(c) must be afforded a bail hearing before an immigration judge within 6 months of his or her detention.
- The individual is entitled to release on bail “unless the government establishes by clear and convincing evidence that the alien poses a risk of flight or a risk of danger to the community.”
Other courts have also stated that immigrants have the right to a bail hearing, but not all of them have established such a clear 6 month rule.
What do the new rules mean for those already in custody? Immigrants who are close to or past the 6 months of detention are now eligible for a bail hearing. In addition, it seems likely that even those who are not near the 6 month mark, but are likely to be detained for 6 months or longer should be eligible for a bond hearing as soon as it becomes clear that their detention will be prolonged past the 6 month mark. For example, if it looks like a decision will take a long time or there is likely to be an appeal, the immigrant can request a bail hearing right away instead of waiting 6 months.
The decision also means that the government has the burden of proof of establishing the individual should not receive bail. The government must demonstrate that the individual is highly probable or reasonably certain to be a flight risk or poses an identifiable and articulable threat to an individual or the community. And the existence of a past criminal record is not sufficient by itself to establish this.
If you have a loved one who has been detained, contact us for assistance.