ICE Detention 101:
Some Basics for Federal Defenders
Sirine Shebaya
Federal Public Defender Criminal Justice Act Training Program
United States Courthouse, Greenbelt, Maryland
November 14, 2014
Presentation Overview
Overarching Q: Should I try to get clients with ICE
detainers released, or will that just land them in immigration
detention? How do I assess the likelihood of release for my
clients if they are transferred to ICE custody?
2
Presentation Overview
1.The Basics: Mandatory detention under INA 236(c) and
release under INA 236(a)
1.A Brief Foray Into ICE Detention 102: Emerging case law
on ICE detainers and the extent of ICE’s mandatory
detention authority
1.Concluding thoughts
3
The Basics of ICE Detention
 Mandatory detention under 236(c)
 Release on bond or on conditions under 236(a)
4
1. The Basics
 Your go-to statute: INA § 236, 8 USC § 1226
 Provides for mandatory detention of persons removable due
to certain criminal convictions (INA § 236(c), 8 USC
§ 1226(c))
 Also provides for release on bond or conditions for those
not subject to mandatory detention (INA § 236(a), 8 USC
§ 1226(a))
5
Mandatory detention under 236(c)
 Release from criminal custody must be after October 8,
1998 – see Matter of Adeniji, 22 I&N Dec. 1102 (BIA
1999); Matter of West, 22 I&N Dec. 1405 (BIA 2000)
 Release must be directly tied to basis for detention under
INA § 236(c) – see Matter of Garcia-Arreola, 25 I&N
Dec. 267 (BIA 2010) (overruling Matter of Saysana, 24
I&N Dec. 602 (BIA 2008)
6
Mandatory detention under 236(c)
 The “when… released” controversy: what happens if ICE
does not take custody of the person as soon as they are
released from criminal custody?
 BIA has held that it does not matter; ICE may subject
person to mandatory detention at any time after they are
released from criminal custody – see Matter of Rojas, 23
I&N Dec. 117 (BIA 2001)
 Fourth Circuit unfortunately concurred – see Hosh v.
Lucero, 680 F.3d 375 (4th Cir. 2012)
7
Mandatory detention under 236(c)
 For inadmissible non-citizen (EWI or person seeking
admission into US including returning LPR):
 ONE Crime Involving Moral Turpitude (CIMT)
 Petty offense exception (max sentence no greater than 1 yr
and time served no greater than 6 mos)
 Under 18 and five years before date of application exception
 Controlled substance offense
 Various prostitution-related offenses
 Human trafficking, money laundering, security grounds
and terrorist activities
 Diplomatic immunity & “serious criminal activity”
8
Mandatory detention under 236(c)
 For deportable non-citizen (LPR currently in US or
person who entered lawfully with inspection):
 Two or more CIMTs (anytime after admission)
 One CIMT within 5 years of admission and sentence of at
least one year
 Aggravated felony
 Controlled substance offense (other than single 30g or
less MJ possession)
 Firearms offenses
 Various security and terrorist activity grounds
9
A quick word on CIMTs and Agg Fels
 Terms of art, not necessarily obvious (e.g. aggravated
felonies can be state misdemeanors)
 Law constantly evolving on particular crimes, statutory
interpretation
 But, for what it’s worth:
 CIMT = “inherently base, vile, or depraved, and contrary to
the accepted rules of morality”; “per se morally reprehensible
and intrinsically wrong...” Matter of Franklin, 20 I&N Dec. 867
(BIA 1994)
 CIMT determined by statutory definition, not by facts or
circumstances of particular case – see Matter of Short, 20
I&N Dec. 136 (BIA 1989)
10
CIMTs and Agg Fels (cont’d)
 Aggravated Felonies: defined at 8 USC § 1101(a)(43)
 Dozens of statutory and common-law offenses, including
but not limited to: burglary; various drug offenses; various
fraud offenses; murder; rape; crimes of violence; various
more minor offenses if term of imprisonment is at least one
year; sexual abuse of a minor; and more…
 Bottom line: scrutinize very carefully to determine if crime
is an aggravated felony (and consult Maureen Sweeney’s
Maryland chart)
11
Release on Bond under 236(a)
 INA 236(a), 8 USC 1226(a) – persons not subject to
mandatory detention may be released on bond
(minimum $1500) or on conditional parole
 Bond/parole may be revoked at any time and person rearrested – see INA 236(b), 8 USC 1226(b)
 Bond granted unless threat to nat’l security, flight risk or
poor bail risk – see Matter of Patel, 15 I&N Dec. 666 (BIA
1976)
 But see 8 CFR §§236.1; Matter of D-J-, 23 I&N Dec. 572
(A.G. 2003) (asserting broader discretion to detain not
limited to flight risk and dangerousness)
12
Bond – cont’d
 IJs have wide latitude to consider various factors in
making bond determinations – see Matter of Guerra, 23
I&N Dec. 37 (BIA 2006), e.g.:





Fixed address, length of residence in US
Local family ties, employment history
Criminal record, pending criminal charges
History of immigration violations, manner of entry
Etc.
 Bottom line: consider all equities carefully; talk to
immigration practitioners in your area
13
ICE Detention 102: A Brief Foray
 Constitutional challenges to ICE detainers (and recent
policy changes in MD)
 Limitations on ICE’s mandatory detention authority
14
ICE Detention 102 - Detainers
 Recent court decisions: detainers violate Fourth
Amendment when issued without probable cause
 Miranda-Olivares v Clackamas County, 2014 U.S. Dist.
LEXIS 50340 (D. Ore. Apr. 11, 2014)
 Galarza v. Szalczyk, 2014 U.S. App. LEXIS 4000 (3d Cir.
Mar. 4, 2014)
 Morales v. Chadbourne, 2014 U.S. Dist. LEXIS 19084 (D.
R.I. Feb. 12, 2014).
15
Detainers – cont’d
 Our view: Fourth Amendment requires probable cause
and judicial review. Detainers do not satisfy either of
these requirements.
 New Maryland policies requiring probable cause
determination and/or judicial warrant now in effect in
Prince George’s County, Montgomery County, Baltimore
City Detention Center, and others.
 Possible uses for Fourth Amendment detainers
arguments for federal detainees?
16
Detainers – cont’d
 Emerging developments in the Ninth Circuit on detainers
and denial of bail:
 Litigation filed in Ninth Circuit by ACLU of Southern
California challenging denial of bail on the basis of ICE
holds – Roy v. County of Los Angeles
 Favorable ruling allowing lawsuit to proceed in damages
action challenging inability to post bond because of ICE
detainer – Mendia v. Garcia
 Court struck down Proposition 100, provision in Arizona
law denying bail to immigrants – Lopez-Valenzuela v.
County of Maricopa
17
ICE Detention 102 – Mandatory Detention
 Post-removal order: indefinite detention unconstitutional
if removal not significantly likely in reasonably
foreseeable future – see Zadvydas v. Davis, 533 U.S.
678 (2001); Clark v. Martinez, 543 U.S. 371 (2005)
 E.g. country does not have repatriation agreement with US
or unlikely to be removed to home country; OR client has
won withholding or deferral of removal
18
Mandatory Detention 102 – cont’d
 Pre-removal order:
 Prolonged mandatory detention: three circuit courts (3d,
6th, and 9th) and a number of district courts have found
prolonged mandatory detention raises serious
constitutional concerns, requiring bond hearings for certain
categories of detainees
 Limiting Demore v. Kim, 538 U.S. 510 (2003)
 Who is properly subject to 236(c)? The Matter of Joseph
argument (cont’d next slide)
19
Mandatory Detention 102 – cont’d
 Matter of Joseph: An individual is not properly subject to
236(c) if the government is “substantially unlikely to
prevail” on charge of deportability or inadmissibility – see
Matter of Joseph, 22 I&N Dec. 799 (BIA 1999)
 In practice, applied only when gov’t claim is frivolous
 Constitutional concerns – 236(c) should not apply when:
 Bona fide challenge to charge of deportability or
inadmissibility; or
 Bona fide claim to permanent relief from removal (e.g.
cancellation, adjustment, asylum)
20
Mandatory Detention 102 – cont’d
 Other Issues:
 Does 236(c) apply to an individual whose removal is
stayed pending judicial review of removal order?
 Ninth Circuit has said “no” – see Casas-Castrillon v. Dep’t of
Homeland Security, 535 F.3d 942 (9th Cir. 2008)
 But Third Circuit, though not addressing the issue, appeared
to assume that 236(c) still applies during pendency of stay –
see Leslie v. AG, 678 F.3d 265 (3d Cir. 2012)
 Constitutional challenges to denial of bond under 236(a)
may also be possible in extreme circumstances – see
Kambo v. Poppell, No. 07-800, 2007 WL 3051601 (W.D.
Tex. Oct. 18, 2007)
21
Concluding Thoughts
 Law on mandatory detention interpreted very
expansively by ICE, but circuits are starting to find limits
to its authority to detain
 Talk to local immigration lawyers about prevailing
practices in your area
 Emerging cases finding constitutional problems with ICE
detainers are having a strong impact on state and local
policies; could be useful for federal defenders as well
22
CLOSING
EXAMPLE
For more information, contact:
Sirine Shebaya, shebaya@aclumd.org.
If you have a civil
rights/immigrants’ rights
complaint, call the ACLU of
Maryland:
(410) 889-8555.
23
Because Freedom Can’t Protect Itself
www.aclu-md.org
(410) 889-8555