Can Immigrants Be Indefinitely Detained?

Immigrants throughout the country have questions about their rights when detained by the U.S. government. Courts continue to address changing U.S. immigration policies. Recent U.S. Supreme Court rulings have limited bond release options for immigrants in detention. The Court held that bond hearings are not statutorily required for immigrants detained for more than six months, leaving the possibility of indefinite detention.

For questions about the due process rights of noncitizens in detention, contact a local immigration law attorney.

Are Immigrants Eligible for Parole from Custody?

“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.”

Many detained immigrants are eligible to seek parole. The U.S. Department of Homeland Security (DHS) can make an initial determination regarding whether a detainee qualifies for release and the terms of release. If DHS denies parole, the immigrant can appeal to an immigration judge.

However, a detainee will not be released if they were detained while attempting to enter the U.S. without authorization, previously convicted of a violent crime or a crime of moral turpitude, or present a flight risk.

If a noncitizen is not granted parole by the immigration court, recent U.S. Supreme Court decisions have restricted their constitutional rights. Detainees must file individual claims for relief rather than join larger class-action immigration cases. Detainees must also base their claims on constitutional due process rights, as there is no statutory right to periodic bond hearings.

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No Statutory Right to Bond Hearings

In Johnson v. Arteaga-Martinez (2022), the Supreme Court found that U.S. immigration laws do not require the federal government to provide noncitizens with a bond hearing every six months when they pose a flight risk or danger to the community. Immigrants detained by customs enforcement do not have a statutory right to bond hearings.

In its prior case, Jennings v. Rodriguez (2018), the Court found there were no limits on the U.S. Attorney General’s discretion to “arrest and detain an alien” pending a final decision on deportation. The Court remanded the case to the Ninth Circuit Court of Appeals for further review.

Generally speaking, since immigration is federal, the New Jersey issues are pretty much the same nationally.

Limited Class Action Immigration Options

In Garland v. Aleman Gonzalez (2022), the Court responded to a class action brought by a group of detained immigrant plaintiffs seeking class-wide relief.

The Court found that lower courts lack legal jurisdiction to grant class-wide injunctive relief. Immigrants seeking court relief must file individual due process claims.

Detention Centers in New Jersey

In 2021, New Jersey Governor Murphy signed legislation to end the renewal of ICE detention center contracts. Since then, the facilities operated by the state or county have stopped housing detainees.

However, ICE continues to detain individuals in private detention centers. The main contract detention centers in New Jersey include:

• Delaney Hall Detention Facility in Newark
• Elizabeth Contract Detention Center in Elizabeth

Bail Reform Laws

“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 the 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.

Find Legal Help

Consult an experienced New Jersey immigration attorney for specific advice regarding your situation. For general information on mandatory detention and immigration proceedings, see our immigration law overview.