All too often these days, unfortunately, foreign nationals are picked up by Immigration and Customs Enforcement and detained for crimes for which they were convicted of years ago. Under Section 236c of the Immigration and Nationality Act, the government is allowed to hold individuals without affording them an opportunity for bond or release. Otherwise known as mandatory detention, 236c applies to the following classes of individuals:
· Individuals who are inadmissible for having committed an offense described in INA 212(a)(2)
· Individuals who are deportable for having committed an offense described in INA 237(a)(2)(A)(ii), 237(a)(2)(iii); 237(a)(2)(B), 237(a)(2)(C), or 237(a)(2)(D)
· Individuals who are deportable under INA 237(a)(2)(A)(i)
· Individuals who are inadmissible under INA 212(a)(3)(B) or deportable under INA 237(a)(4)(B)
Drug offenses and crimes involving moral turpitude, in some shape or form, depending on whether the person is inadmissible or deportable, will trigger mandatory detention concerns.
Naturally, the question arises whether such detention is warranted or justified when the individual is not apprehended by ICE “when released”-which one would reasonably construe to mean immediately-but much later, sometimes years. Well, the Supreme Court addressed this question very recently in Nielsen vs. Preap. The decision is not the easiest to read, but the gist is that an individual does not have to be arrested by the Department of Homeland Security immediately after release from criminal custody in order to fall within the boundaries of 236c. The Court essentially falls back on the notion of “better late than never” and that just because a rule specifies that officials should act within a certain time frame does not prevent them from acting later. In light of this holding, any delay between release from criminal custody and immigration custody, even if significant, is not likely to impact whether the individual is afforded an opportunity for release proper to court proceedings.
The bottom line is that this is, for the time being, the final word on this issue (although the Court notes that the decision is based on statutory arguments, not necessarily constitutional principles.) Therefore, non-US Citizens charged with criminal offenses need to be especially vigilant and sensitive as to how their criminal charges may expose them to immigration detention and removal proceedings. Potential allegations of Aggravated Felonies and Crimes Involving Moral Turpitude should be identified well ahead of any plea or resolution of the criminal matter.
The above is general information only and not intended to serve as legal advice. It does not create an attorney client relationship, nor should it be relied upon in lieu of consultation with an immigration attorney.