Can Immigrants Be Indefinitely Detained?

What is allowed by law when the U.S. government detains you

By S.M. Oliva | Last updated on January 26, 2023

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There is much confusion in New Jersey and throughout the country over the legal rights of immigrants detained by the U.S. government. In reality, the legal situation remains in a constant state of flux, as the courts struggle to keep up with a host of new changes to U.S. immigration policies. And a recent decision by the U.S. Supreme Court has only confused matters further. “Generally speaking, since immigration is federal, the [New Jersey] issues are pretty much the same nationally,” says Angie Garasia, an immigration attorney at Lee & Garasia in Edison, New Jersey. “The Third Circuit has ruled that jails are not required to hold someone pursuant to detainer requests; other circuits may have ruled differently.”

Supreme Court Rejects Statutory Remedy, But Leaves the Door Open to Constitutional Relief

Let’s start with the Supreme Court. On February 27, 2018, the Court issued its opinion in Jennings v. Rodriguez, a class action brought by a group of detained immigrants (or “aliens” in legal terms). The main question addressed by the Court was whether federal immigration laws grant detained aliens a statutory right to seek a bond hearing–i.e., a chance to seek parole from custody–at least once every six months. A federal appeals court in San Francisco previously held such a right did exist. A majority of the Supreme Court disagreed, however, holding the statute question imposed no limits on the Attorney General’s discretion to “arrest and detain an alien” pending a final decision on deportation. But the Supreme Court’s decision was not the final word on the matter. It returned the case to the appeals court below to consider two questions: First, could the detained immigrants pursue their claims as a single class, rather than individually; and second, did the detained aliens have a constitutional–as opposed to a statutory–right to a bond hearing every six months? As of July 2018, these questions remain pending before the lower court, the U.S. Ninth Circuit Court of Appeals in San Francisco. That court may not issue a decision until next year, which in turn may be appealed back to the Supreme Court, so it may be some time before these issues are resolved to any degree of certainty.

Which Immigrants Are Eligible for Parole from Custody?

It should be noted that regardless of how the courts resolve the issue of constitutional rights to periodic bond hearings, many detained immigrants are in fact eligible to seek parole. The Department of Homeland Security usually makes an initial determination regarding whether a detained alien qualified for release. If DHS denies parole, the immigrant can in many cases appeal to an immigration judge. But an alien will not be released if they were detained while attempting to enter the U.S. without authorization or if they have been previously convicted of a violent crime or a crime of “moral turpitude,” such as burglary or theft. “While the new bail reform rules have generally resulted in more people being released without having to post bail, those charged with domestic violence offenses may be targeted by prosecutors for criminal detention before trial,” says Garasia. “The longer that someone is held in jail, the higher probability they will come to the attention of ICE.” But this does not mean any criminal record will automatically disqualify an immigrant from receiving parole. Certain older offenses—usually those that took place prior to 1998—and single convictions that do not involve drugs, firearms, or an “aggravated felony,” should not affect an immigrant’s eligibility. Of course, you should consult with an experienced New Jersey immigration attorney first to obtain specific advice regarding your situation. For more information on this area of law, see our immigration overview.

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