By: Robert K. Vallane, Esq.

For many non-citizens of the United States, the issue of mandatory detention can arise when the alien has been convicted of a crime.  Normally, when a non-citizen comes into ICE custody, an immigration judge will determine the amount of bond, if any, in a proceeding commonly known as a bond hearing.  However, the law also states that the detainee might not even have a right to bond in the first place if he has been convicted of certain removable offenses such as crimes of moral turpitude, aggravated felonies, controlled substance offenses, and firearms offenses.  If this is the case, it is said that the detainee is subject to “mandatory detention”, whereby he must remain in detention until his immigration case is resolved.

In 2003, the idea of mandatory detention did not present any constitutional issues because the average length of detention was approximately 47 days.  Since then, however, the average length of time that mandatory detainees spend in detention has increased significantly due to the overwhelming backlog in immigration proceedings, leaving many of these detainees languishing in county jails and ICE facilities for months and sometimes years.

Recently, the United States Court of Appeals for the Second Circuit, in Lora v. Shanahan, addressed this aspect of the mandatory detention law.  Specifically, the court looked at whether the prolonged detention of an alien, who is subject to mandatory detention, violates his right to due process under the Constitution.

The case dealt with Alexander Lora, a lawful permanent resident and citizen of the Dominican Republic, who was convicted of drug-related offenses, sentenced to probation, and taken into custody by ICE agents under the mandatory detention statute.  After spending four months in custody, Lora petitioned for a writ of habeas corpus, arguing that indefinite incarceration without an opportunity to apply for bail violated the Due Process Clause of the Constitution.  The District Court agreed, setting a bond in the amount of $5000, and the government appealed.

In a landmark decision, the Second Circuit Court of Appeals affirmed the judgment of the District Court, ruling that, in order to avoid the constitutional concerns raised by indefinite detention, an alien detained under mandatory detention must be afforded a bond hearing before an immigration judge within 6 months of his or her detention.  Further, bond must then be set by the immigration judge unless the government establishes that the alien poses a risk of flight or a risk of danger to the community.

This new holding is very important as it could potentially benefit a countless number of immigration detainees who have already spent 6 months in detention and are otherwise eligible for bail.

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