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Eleventh Circuit Court of Appeals Says Mandatory Detention is not Mandatory if your Immigration Case takes too long to Complete.

As a non-citizen in an immigration detention facility, you may or may not be eligible for release or a bond. Unlike in criminal court where you have a Constitutional right to a reasonable bond (with very few exceptions), in Immigration Court, an immigration judge often has no authority to grant you a bond in your case, even if you have never been arrested for a crime.

In our office, we handle many cases involving clients who are detained in immigration detention facilities. Some are in removal proceedings fighting to keep their green cards, obtain some form of immigration relief or are simply trying to get a bond so they can get out of detention. There are many ways that we can help a client get out of immigration detention, whether its by asking ICE to parole them from custody or grant them a bond, or filing a bond motion in immigration court or asking the ICE attorneys handling the case to agree to a bond. Now, we have another way to try and secure the release of clients detained for more than six months thanks to a new decision by the 11th Circuit.

You may ask, how is that fair, why am I not eligible or a bond? Let me explain the law on this issue. If you already have a final order of removal and the government detains you to execute that order, you are not eligible for a bond from an immigration judge. If you are stopped at a land border or airport or seaport and considered an arriving alien and detained, you are not eligible for a bond. If you are removable or inadmissible for almost any criminal ground of removability, you are not eligible for a bond. It makes no difference if you are a flight risk or a danger to the community; if the law says you are not eligible, there is nothing an immigration judge can legally do to grant you a bond.

If you are in removal proceedings and subject to mandatory detention under INA § 236(c) for one of the criminal grounds of removability under INA § 212(a)(2) or § 237(a)(2), then you must be held in detention until an immigration judge issues a final order in your case. That means in order to be released when you are subject to mandatory detention, the Immigration Judge must terminate your case or grant you relief from removal. Of course, if the judge orders your deportation and you don’t appeal, you will be released from custody as soon as they put you on a plane to deport you.

If you win or lose your immigration case and you or the government appeals, then you have to stay in detention until the appeal is decided. This can take many, many months, to over a year. About 13 years ago, government immigration attorneys told the U.S. Supreme Court that an immigration case usually takes about 47 days to complete from beginning to a final hearing. The government went on to say, if there is an appeal, it will be decided in an average of an additional four months. That puts the average detained case completion, beginning to end with an appeal, at less than six months. Based upon these statistics, the Supreme Court in Demore v. Kim, said that Immigration and Customs Enforcement could keep detainees detained during the entire removal case if they were subject to mandatory detention.

Six months may feel like an eternity when you are the detainee, but the Supreme Court said six months was reasonable to make sure that “criminal aliens” do not flee or commit new crimes while the government is trying to deport them. Here is the problem with those statistics and the Supreme Court’s decision, not only is less than six months not an average for a detained immigration case these days, but I do not have a single detained client who has an appeal pending, who has not been in custody for far longer than six months. That’s right, every single detained appeal case I have, has lasted longer than six months and some appeals are still pending while my client sits in detention for more than a year.

The Supreme Court has already said in a case called Zadvydas v. Davis that once a person has a final order of removal, they must be detained for at least 90 days while the government tries to deport them. After 90 days, ICE can release the person if they do not think that they can deport the person (think Cubans). If ICE thinks they can deport the person after the 90 days, they can keep the person detained while they keep trying to deport them. However, the Supreme Court drew a line in the sand and said that at 180 days in detention after a final order of deportation, the detention becomes presumptively unreasonable. This allows the detainee to bring an action in federal court called a writ of habeas corpus to ask the federal court to force immigration to release the detainee.

For detained people who do not have final orders of removal in the 11th Circuit, there was no writ of habeas corpus to force the government to release a detainee, that is until now. In the wonderful case of Sopo v. U.S. Attorney General, a very smart man named Professor Michael Vaseline at the St. Thomas Law School Immigration Clinic brought this case challenging Mr. Sopo’s extremely long detention by ICE while he waited for a final decision in his case. http://media.ca11.uscourts.gov/opinions/pub/files/201411421.pdf

In the Sopo case, the 11th Circuit did not issue a bright-line rule that pre-final-order mandatory detention was always unreasonable after six months. However, the Court did say that after six months, an attorney could bring a habeas action to ask the federal courts to make the immigration courts have a bond hearing where they had to consider if the client was a flight risk or a danger to the community. This is a huge victory for detained immigrants whose cases have been pending for more than six months without a final order, even if the case is on appeal. Now, if the case has taken more than six months, and it is not because the client has been delaying the case purposefully, there is a very good chance that the federal courts will order the immigration courts to have a bond hearing.

If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Shorstein, Lasnetski & Gihon.
If you have a loved one who has been in immigration detention for more than six months and you want to know if we can help them secure a bond hearing, call us.
Visit our website for more information about SLG: http://www.slgattorneys.com

You can reach John at John@slgattorneys.com
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