The (Almost) Absolute Power of the Government to Detain

One aspect of immigration law that shocks many is the power of the government to detain non-U.S. citizens convicted of certain crimes indefinitely without the opportunity for a bond hearing.  This is commonly described as “mandatory detention“.

Under this policy, Immigration and Customs Enforcement (ICE) routinely takes into its custody both the undocumented, AND permanent residents (“green card holders”) who have been convicted of certain criminal offenses.  This “mandatory detention” can apply even when:

1. The non-U.S. citizen has been a green card holder for many years;

2. The criminal conviction happened years, if not decades, before the new detention by ICE; and

3. The criminal offense is “low-level” (i.e., certain misdemeanors).

And “mandatory detention” allows for almost no discretion: it applies to those who served every day of their criminal sentences, finished probation with clean records, and have stayed out of trouble since.  Indeed, “mandatory detention” is one of the most unforgiving aspects of immigration law, and can separate families for months, if not years, all because of a mistake from the past.

Can Anything be Done to Fight Mandatory Detention?

There are scenarios where mandatory detention can be challenged. As illustrated below, my office has fought for and won bond hearings for those subject to mandatory detention through the filing of lawsuits (“Petitions for Habeas Corpus”) in federal court. Two arguments can be made which have found success:

1. First, a federal court may grant habeas where it can be demonstrated that ICE took an individual into detention months, if not years, after his release from criminal custody.

2. Second, a federal court may grant habeas if the facts demonstrate that the individual never was physically confined (i.e., served time in prison or jail) as a result of the criminal conviction.

Please note the government has appealed my office’s victory in the latter decision to the Court of Appeals for the Second Circuit.  Please stay tuned for further updates in this developing area of immigration law.

Please do not hesitate to contact my office by phone (212) 901-3799) or email ( with any questions about “mandatory detention” and how my office may be able to help.

***Attorney advertising; Prior results do not guarantee a similar outcome***



Leave a Reply

Your email address will not be published. Required fields are marked *