ICE classifies many detainees under "mandatory detention" statutes, claiming they must remain in custody with no possibility of bond. However, these classifications are frequently incorrect — and a federal habeas petition is the most effective way to challenge them on behalf of your loved one.
Understanding Mandatory Detention
Under U.S. immigration law, certain categories of noncitizens are subject to mandatory detention — meaning ICE claims they must be held without the possibility of bond. The primary mandatory detention statutes are:
INA § 236(c) / 8 U.S.C. § 1226(c): Applies to individuals with certain criminal convictions, including aggravated felonies, controlled substance offenses, and crimes of moral turpitude. ICE must detain these individuals "when released" from criminal custody.
INA § 235(b) / 8 U.S.C. § 1225(b): Applies to "arriving aliens" — individuals apprehended at or near the border, or those who entered without inspection and are placed in expedited removal proceedings.
However, ICE frequently misapplies these statutes. People are placed in mandatory detention who do not belong there — because their past record does not actually qualify, because ICE did not detain the person "when released" as required, or because the classification is simply wrong.
Common Misclassification Errors
Wrong criminal category: ICE may classify a conviction as an "aggravated felony" or a "crime involving moral turpitude" when it does not actually meet the legal definition under immigration law. The legal analysis is highly technical and ICE officers frequently get it wrong.
Timing gap: Under Supreme Court precedent (Nielsen v. Preap notwithstanding), some circuits still require that ICE detain the person immediately "when released" from criminal custody. If there was a gap — even of days — between criminal release and ICE detention, mandatory detention may not apply.
Wrong statute applied: ICE sometimes applies § 1225(b) to individuals who should be processed under § 1226(a), which allows for bond hearings. This is particularly common with individuals who have been living in the U.S. for years before being detained.
FAQ
Absolutely. ICE's classification is not final — it is an administrative determination that can be challenged in federal court. We analyze the specific legal basis for the mandatory detention claim and file a habeas petition if we identify an error or constitutional violation.
Having a criminal record does not automatically mean a person is subject to mandatory detention. The specific conviction must meet precise legal definitions under immigration law, and ICE frequently misapplies these definitions. Even if mandatory detention was correctly applied initially, prolonged detention under this statute can become unconstitutional over time.
This requires a detailed legal analysis of the charging documents, criminal record, and the specific statute ICE is using to justify the detention. Our attorneys review these materials and compare them against current case law to determine if the classification is correct. Many clients have been released after we identified classification errors that previous attorneys missed.
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