Detained Without Process: The Excessive Use of Mandatory Detention Against Maryland’s Immigrants

Here are some of the people who are placed in immigration detention in Maryland and whose lengthy and unnecessary detention our taxpayer dollars are funding:

• A family man who has lived in the United States for three decades, has lawful permanent resident and U.S. citizen family members, and a wife and daughter with significant medical needs, and whose only conviction was a theft offense for which he served no time in jail.

• An elderly lawful permanent resident woman who some years ago was convicted of a theft offense but who otherwise has no criminal history and has lived peacefully in the United States for decades.
• A man who has lived in the United States for two decades, who has five U.S. citizen children and only a single non-violent drug possession conviction for which he served less than six months in jail.
• A man who has lived in the United States for decades, who has a U.S. citizen wife and relatives, and whose only conviction was a single drug possession conviction from 20 years ago for which he served less than six months in jail.
• A lawful permanent resident mother of two small U.S. citizen children with two shoplifting charges involving diapers and food.

In addition to being costly and wasteful, the detention of each of these individuals raises serious due process concerns. Each had substantial challenges to their removability, many were eligible for relief, and at least three were detained for a prolonged period of time. Their stories will be described in detail in this report.

In the criminal justice system, the presumption is that everyone is eligible for release on bond and given an opportunity to argue their equities at a hearing before a neutral arbiter. In the immigration system, that presumption is reversed for most detainees. Immigrants are routinely and automatically subjected to detention pending their removal cases without ever having an opportunity to present their case for release to an immigration judge. They remain detained for the entire duration of their immigration proceedings, even when they have strong immigration cases and are ultimately able to win and remain permanently in the United States.

In 1996, Congress enacted a provision, 8 U.S.C. § 1226(c), requiring the mandatory, no bond detention of immigrants facing deportation based on certain criminal convictions. It did so because of an assumption that people with criminal records posed a heightened risk of flight or danger. But recent government data shows that this is untrue: individuals detained under § 1226(c) pose no greater flight or public safety risk than the general population of immigration arrestees.

Combining qualitative interviews and quantitative analysis of a three-month data sample of immigration custody determinations in Maryland, this report describes and illustrates the needless overuse of “mandatory” (no-bond) detention for persons who pose little flight or public safety risk. Our analysis produced the following basic endings:

Of 485 individuals entering Immigration and Customs Enforcement (ICE) custody in Maryland during a three-month period in 2013, 96 individuals were held without bond under the mandatory detention statute, 8 U.S.C. § 1226(c), which requires the detention of noncitizens placed in removal proceedings due to their criminal records.

As a group, mandatory detainees did not pose a higher flight or safety risk than the general population of ICE arrestees, by the assessment of ICE’s own risk classification tool. In fact, those detained under § 1226(c) were collectively the lowest ight risk category among all ICE arrestees.

About 41 percent of people classified as mandatory detainees had convictions that either clearly did not subject them to mandatory detention under § 1226(c), or raised a substantial question as to whether they did so. Nonetheless, all were automatically placed in mandatory detention without regard to substantial legal doubts regarding their classification.

Of those classified as mandatory detainees, at least half may have been eligible for some form of relief from deportation and therefore likely to be legally entitled to reside in the United States.

Several federal courts have recognized that § 1226(c) does not require mandatory detention where someone raises a good faith or substantial challenge to their removal, nor does it authorize mandatory detention beyond a reasonable period of time. Nonetheless, in many cases, the government imposes mandatory detention in an improperly broad manner to persons with minor convictions and strong equities, even where there are substantial doubts about whether they committed a crime that triggers the mandatory detention statute; even where they are likely to ultimately prevail in their immigration cases; and even when they are detained for unreasonably prolonged periods.

The report recommends that the government limit its application of § 1226(c) to its proper scope and provide bond hearings in cases where a person raises a substantial challenge to removal or where detention has become prolonged. Instead of presuming that a person is subject to mandatory detention, the presumption should be reversed. Detention without a bond hearing should be reserved only where the person has no substantial challenge to removal and should not be applied beyond a brief period of time.