MANDATORY DETENTION
The 1996 immigration law instituted harsh measures which required the detention of aliens without hope of bond or parole. The new provisions were not put into effect until October 9, 1998, when the Transition Period Custody Rules expired.Arriving aliens who are subject to expedited removal must be detained until they are removed from the United States, unless 1) parole is required to meet a medical emergency or legitimate law enforcement objective, or 2) the alien is referred for a full hearing in front of the Immigration Judge.
Arriving aliens requesting asylum are detained. If there is not enough space to detain an alien, and the alien is claiming asylum from a country other than Mexico or Canada, the alien may be required to wait in Mexico or Canada until his or her asylum claim is decided. Aliens requesting asylum may be paroled for humanitarian reasons.
Aliens completing criminal sentences will be taken into custody by INS and will generally remain detained throughout immigration court proceedings without hope of bond. The INS is required to detain all aliens chargeable as terrorists and almost all aliens who are chargeable as criminals. Mandatory detention does not apply to the following groups of aliens:
1) aliens who are removable or deportable for a single crime involving moral turpitude, if they were sentenced to less than one year;
2) aliens who are removable for a conviction for high-speed flight from an immigration check point; and
3) aliens who are removable for domestic violence, stalking and the abuse or neglect of children.
After being taken into custody by the INS, an alien may only be released if it is necessary to protect a witness, a person cooperating with an investigation, or a family member of such a person. To be released, the alien must also show that he or she would not pose a danger to persons or property and that he or she does not pose a flight risk.
Additionally, all aliens who have final orders of removal or deportation are subject to mandatory detention. This includes all aliens ordered removed, even if they have not been convicted of any crime. INS is required to remove or deport within 50 days all aliens under final orders of removal or deportation. However, if INS is unable to remove or deport any alien under a final order within 90 days, the alien should be released under an order of supervision. This provision for release, however, does not apply to aliens inadmissible on any ground, those who are deportable or removable on criminal or security grounds, those who are dangerous and those who are flight risks.
Moreover, aliens under final orders of exclusion must be detained if they have been convicted of an aggravated felony. Aliens placed into immigration court proceedings before April 1, 1997 who were ordered deported or excluded are only subject to mandatory detention if they are terrorists or are convicted of certain crimes. If not, they will be detained on a discretionary basis, and if they have a final order of deportation or exclusion, their detention is high priority to INS.
Thus, people who have been permanent residents for many years and who may have a family to support, will be subjected to mandatory detention without hope of bond or parole should they be convicted of a crime (with a few exceptions), even if it is only their first offense. Moreover, because of the change in policy towards asylum seekers, many people who have suffered persecution in their home countries are being detained throughout their immigration proceedings in the United States.