The U.S. government is using detention with increasing frequency as a means of dealing with undocumented or otherwise removable immigrants after their arrest. Upon the apprehension of a foreign national or the issuance of a Notice to Appear (NTA), the Department of Homeland Security (DHS) determines whether to take the individual into custody; release the individual on his or her own recognizance or subject to conditions, such as an ankle monitor; or to issue a bond amount under which the individual can secure his or her release.
Mandatory Detention
Individuals with certain types of criminal histories are subject to mandatory detention, which means they cannot be released pending removal proceedings, even if they are a lawful permanent resident (LPR).
The Supreme Court, in Demore v. Kim, held by a 5-4 vote that the mandatory detention provisions are constitutional, even applied to LPRs. This decision came after many federal courts, including the U.S. Courts of Appeals for the Third, Fourth, Ninth, and Tenth Circuits, have held that the mandatory detentions were unconstitutional, particularly as applied to LPRs. Still, challenges to mandatory detention continue to be filed specifically because of the Supreme Court’s decision was based, in part, on an understanding that removal proceedings for detained respondents are typically concluded within 90 days. Some of these challenges have been successful.
The Individual Does not Pose Danger to the Safety of the Other Person or Property
Moreover, persons subject to mandatory detention still may be released if the Attorney General (AG) decides that release from custody is necessary to provide protection to a witness or potential witness, a person cooperating with an investigation into a major criminal activity, or an immediate family member of such a person. Before any release takes places, however, the AG also must decide that persons subject to mandatory detention will not pose a danger to the safety of other person or property and are likely to appear to any scheduled proceedings.
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