In 1996, new immigration laws dramatically expanded the categories of criminal convictions that make immigrants facing deportation ineligible for immigration bonds and therefore subject to mandatory custody. Prior to this time, there was some provision for mandatory custody but it only applied under very limited circumstances. Now a broad range of convictions, including what most Americans consider relatively minor infractions, can subject immigrants to mandatory custody.

When U.S. Immigration and Customs Enforcement (ICE) determines that someone is subject to mandatory custody, under current law that person does not have a chance to have a judge review the decision and consider whether it is appropriate. I have seen countless cases in which a reasonable bond would have permitted good people to avoid unnecessary trauma and saved the government thousands of dollars.

Comprehensive immigration reform gives Congress an opportunity to eliminate mandatory custody entirely, or at least limit it to people with the most serious violent crimes.

Unnecessary—and Absurd

The story of Michael*, a recent NIJC client, illustrates well the problems with mandatory custody. Michael is a lawful permanent resident and has lived in the United States since childhood. When he was 17 he experimented with cocaine and tried the drug twice before being caught at a traffic stop with some in his possession. He was arrested and pled guilty to simple possession of a controlled substance and served several months in prison. Michael was never a drug addict and never used drugs again after his arrest.

Three years later, when Michael came into contact with ICE, the agency decided he was subject to mandatory custody due to his conviction. Michael had many positive factors in his case, including his lengthy lawful residence in the United States, strong educational and work history, numerous lawful family members whom he supported, and years of tax returns. He also qualified for a pardon under immigration law, and from the outset it was clear that he had a strong case. Indeed, the government eventually granted Michael relief and allowed him to stay in the United States. But because current immigration law prevented a judge from weighing the positives in Michael’s case against his one drug conviction and determining an appropriate bond amount, Michael was detained at taxpayer’s expense the full the two and a half months it took to fight his case.

It is absurd to think that a single conviction for possession made Michael such a threat to the community or significant flight risk that he absolutely had to be confined. Yet that is how he was treated.

Michael’s situation is not unique.

Double Jeopardy

It is important to note that immigration detention is not supposed to be part of the punishment for a crime. It is the job of the criminal justice system to determine if it is appropriate or necessary for an individual to serve time in jail or prison because of an offense. Individuals coming into immigration custody have already served that time, if any. Many of them were never sentenced to jail at all and received probation or community service for their convictions. Because immigration detention is not a sentence, there is no limit to the amount of time someone can be detained if subject to mandatory custody. NIJC has had clients detained for years under these provisions, as their complex immigration cases moved through the courts, with no right to judicial review of their detention at any time.

Judges should be able to use bond amounts to mitigate any risks they see in allowing a detainee to be released from custody. When there are more serious risks, the amount of money charged for the bond is higher. If on a rare occasion the judge feels that the risks of letting a detainee out of custody cannot be moderated by any amount of bond, then bond might be denied – but only after a full hearing in which all the factors of the case are considered.

A Merciless System

I will never forget another client, Sara*, who suffered extraordinarily because she was deemed to be subject to mandatory custody. I still remember clearly the day I first met Sara at the detention center. She could barely meet my eyes as she told me about being repeatedly raped by a male relative at the age of 14. After looking into Sara’s case we were able to file an application for a U visa, which is available to immigrant crime victims who have cooperated with the authorities in the crime investigation. She had cooperated with the police and her abuser had been convicted on felony charges and spent time in jail.

Unfortunately for Sara, despite the strong facts of her U visa case she was considered to be subject to mandatory custody because of two misdemeanor convictions. The first was for a shoplifting charge for taking a sweater when she was 18 years old, a mistake for which she takes responsibility and feels thoroughly ashamed. The second conviction was for domestic battery, a charge that came about after she scratched an abusive boyfriend in self defense when he attacked her. When the police came, Sara was unable to adequately respond to her boyfriend’s allegations due language barriers and because she was upset and scared. Her public defender advised her to plead guilty to the charges.

Because these two convictions subjected her to mandatory custody, Sara was detained for the 10 months it took the government to grant her U visa. Sara’s abuser had often kept her locked in a room, and being confined in a jail cell forced her to relive that trauma. She had nightmares, gained weight, and could not get through a conversation with me without crying.

Sara ultimately was granted the visa and released from custody. Her detention cost taxpayers around $40,000 and was a major set back in Sara’s attempts to recover from her abuse. 

How to Fix It

A conviction on someone’s record is only one of many factors that judges should be allowed to consider when deciding whether to keep someone in immigration detention. Individuals who can demonstrate rehabilitation and other positive factors should have a chance to have them considered.

Congress must change the mandatory custody laws to allow for bond hearings in the majority of cases. For Michael and Sarah, it would have saved months of heartache and thousands of dollars in government resources.

*Names have been changed

Elizabeth Kalmbach is the detention and due process coordinator for Heartland Alliance’s National Immigrant Justice Center, where she organizes Know Your Rights visits and provides legal consultations to immigrants detained at six county jails in Illinois, Wisconsin, and Kentucky.