The federal immigration law regarding mandatory detention can be found in the Immigration and Nationality Act ("INA"), specifically, INA 236(c). The purpose of this article is by no means an effort to outline or summarize the provisions of 236(c). The law is exceedingly complex and there are many nuances within the language of the INA that require in-depth analysis by counsel, especially when it means the deprivation of someone's liberty. That being said, most aliens who are exposed to mandatory detention are often those with criminal records. This first general article will discuss mandatory detention as applied to aliens deemed "inadmissible." In a future article, we will discuss mandatory detention within the "deportability" context.
Under INA 236(c), the Attorney General "shall take into custody any alien who (A) is inadmissible by reason of having committed any offense covered in section 212(a)(2)...." INA 212(a)(2), in turn, references criminal grounds of inadmissibility including 1) crimes involving moral turpitude, 2) multiple criminal convictions, 3) controlled substance traffickers, and prostitution offenses, among many others. If an alien has been released from physical custody, i.e., jail, after October 8, 1998, and is applying for "admission" into the United States, he or she could potentially fall within the reach of 236(c) if there is a conviction or even in some cases, an admission of a crime listed in 212(a)(2). Mandatory detention is, plainly speaking, what it says it means: required detention of an individual. The only exception by statute is 236(c)(2), which provides for release only when "necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled hearing."
Given the drastic consequences of mandatory detention, it is absolutely imperative that aliens facing criminal charges as well as those who have already been convicted of crimes consult with immigration counsel. There are plenty of horror stories of those who have applied for immigration benefits unaware that their criminal past not only exposed them to immigration removal proceedings but also detention awaiting those proceedings.