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Hope for release of aliens in mandatory detention

At the Immigration Court last week, the Judge asked a lawyer if he wanted a bond hearing. The lawyer said, “No, I am waiving it.” When my turn to came to be asked, I replied “Yes.” The Judge set a bond hearing date for next week. Our alien clients were under mandatory detention.

What is a bond hearing? When an alien is arrested by immigration authorities, he is given Form I-286 which states that pending final determination by the immigration judge, you shall be: [  ] detained in the custody of the Department of Homeland Security, [  ] released under bond in the amount of $____, or [  ] released on your own recognizance (released without putting up a bond). The arresting officer’s supervisor will put a check mark on which option applies.

The alien will further be told:  [  ] you may request a review of this determination by an immigration judge, or [  ] you may not request a review of this determination by an immigration judge because the Immigration and Nationality Act prohibits your release from custody (meaning the alien is subject to mandatory detention). The supervisor will also check which option is available to the alien.

A “bond hearing” means that an alien may request an immigration judge to review the legality of his detention. So why should an alien waive or pass up an opportunity to be heard and possibly obtain his release on bond or on his own recognizance?

Aliens subject to mandatory detention
The Immigration and Nationality Act, Section 236(c), 8 USC Section 1226(c) provides for the mandatory detention of criminal aliens.  Mandatory detention under Section 1226(c) applies to aliens who are inadmissible on account of having committed a crime involving moral turpitude or a controlled substance offense, on account of having multiple criminal convictions with an aggregate sentence of five years or more of confinement, on account of connections to drug trafficking, prostitution, money laundering, or human trafficking, on account of having carried out severe violations of religious freedom while serving as a foreign government official, or on account of having been involved in serious criminal activity and asserting immunity from prosecution; aliens who are deportable on account of having been convicted of two or more crimes involving moral turpitude, an aggravated felony, a controlled substance offense, certain firearm-related offenses, or certain other miscellaneous crimes; aliens who are deportable on account of having committed a crime of moral turpitude within a certain amount of time since their date of admission for which a sentence of one year or longer has been imposed; and aliens who are inadmissible or deportable because of connections to terrorism. See 8 U.S.C. § 1226(c) (cross-referencing 8 U.S.C. §§ 1182(a)(2), 1227(a)(2)(A)(ii), 1227(a)(2)(A)(iii), 1227(a)(2)(B), 1227(a)(2)(C), 1227(a)(2)(D), 1227(a)(2)(A)(i), 1182(a)(3)(B), 1227(a)(4)(B)).

Bond hearing for aliens mandatorily detained
Many believe that once an alien is subject to mandatory detention, there is no hope for release until the removal proceedings are decided in favor of the alien, which could take years. In the Casas case, he was detained for seven years. In the Ramiro case, he was detained for four years. There are aliens who were never imprisoned but merely given probation for their underlying criminal offenses, yet they have been placed in mandatory detention for years.

In a recent case decided by the Court of Appeals, Ninth Circuit, it was held that an alien who has been subjected to prolonged detention (more than 180 days) is entitled to an individualized bond hearing by an immigration judge in which to contest the necessity of his continued detention. At the hearing, the government must prove by clear and convincing evidence that the alien is a flight risk or a danger to public safety to justify the alien’s continued detention. If the government fails to do so, the immigration judge shall release the alien on reasonable conditions of supervision, including electronic monitoring if necessary. Rodriguez v. Robbins, No. 12-56734, 04/16/13 (9th Cir. 2013).


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)

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