Do you or your loved one need legal advice? Call 212-725-6422. Attorneys, click here.

236(c) Mandatory Detention

Federal legislation passed in 1996 brought a huge expansion in the government’s use of civil immigration detention, particularly for immigrants with criminal convictions. Successive administrations have interpreted these laws as licensing an arrest-and-detain regime in which the government holds hundreds of thousands of immigrants without any due process right to a judicial custody review, often for months or years.

IDP works with litigants in the U.S. District Courts and Courts of Appeals to challenge the government’s unconstitutional application of the immigrant detention laws that pertain to criminal convictions. IDP has appeared with other amici curiae in a number of cases challenging immigration detention under two primary legal theories: 1) the impermissibly prolonged length of detention (“prolonged detention”), and 2) detention that does not immediately follow release from criminal custody (“when released”), in some cases because the individual was never sentenced to a term of criminal incarceration (“released”).

Key U.S. Court of Appeals Detention Cases Supported by IDP as Amicus Curiae

First Circuit

Castaneda v. Souza et al. & Gordon et al. v. Holder et al., 810 F.3d 15 (1st Cir. 2015) (en banc)

In these companion cases, the First Circuit held that for an immigrant to be held in civil immigration detention on the basis of a criminal conviction,  the immigration agency must have taken that person into custody at the time of release from criminal custody. Otherwise, the immigrant is entitled to a bond hearing before an Immigration Judge. IDP and allies filed amicus briefs in support of these petitioners, discussing the legislative history of the mandatory detention laws and presenting the stories of individual immigrants impacted by the government’s detention policies.

Second Circuit

Lora v. Shanahan, 804 F.3d 601 (2d Cir. Oct. 28, 2015)

Mr. Lora, a longtime lawful permanent resident, challenged the government’s authority to detain him without a bond hearing. He challenged the prolonged length of his detention, and also that he was detained due to a criminal conviction that was old and for which he received no sentence of incarceration. IDP and allies filed an amicus brief in support of Mr. Lora presenting the stories of other immigrants impacted by the government’s detention policies. The Second Circuit ruled in Mr. Lora’s favor by establishing a bright-line rule that any immigrant detained on the basis of a criminal conviction must be given a bond hearing within six months of the start of detention. The Court ruled that at the bond hearing the government bears the burden of proving the individual presents a risk of flight or danger to the community. Additionally, the Court arguably rejected Mr. Lora’s arguments based on “released” and “when released” theories.

Third Circuit

Sylvain v. Atty Gen, 714 F.3d 150 (3d Cir. 2013)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended. IDP and allies filed an amicus brief in support of the immigrant’s petition for rehearing en banc.

Desrosiers v. Hendricks, 532 Fed.Appx. 283 (3d Cir. 2013)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended, and where there was never any criminal sentence to incarceration. IDP and allies filed an amicus brief presenting the stories of individual immigrants impacted by the government’s detention policies.

Fourth Circuit

Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended, and where there was never any criminal sentence to incarceration. IDP and allies filed an amicus brief presenting the stories of individual immigrants impacted by the government’s detention policies.

Ninth Circuit

Khoury et al. v. Asher et al., No. 14-35482 (pending)

In this case, immigrants are challenging the applicability of the mandatory detention statute 1) where there is no regard for the length of time that has passed since criminal custody ended, 2) where there was never any criminal sentence to incarceration, and 3) where detention has become unconstitutionally prolonged. IDP and allies filed an amicus brief in support of these petitioners presenting the stories of individual immigrants impacted by the government’s detention policies.

Search