An officer of the Immigration Service has the power to arrest an individual if there is a reasonable suspicion to believe that the individual is an alien and without the lawful right to be or remain in the United States and is likely to escape before a warrant could be obtained. If an alien is arrested his case must be presented within 48 hours for a judicial determination of illegal presence, and whether the individual should be released on bail. The USA Patriot Act of 2001 allows the Department of Homeland Security to detain a suspect for seven days without presenting evidence if the Attorney General of the United States certifies that the suspect is a terrorist. If an arrested individual requests to speak to an attorney, he/she must receive a minimum of two hours to communicate with counsel and during this period the Immigration Service must cease from the interrogation.
In removal proceedings an arrested individual is normally entitled to bail unless he/she has been convicted of an excludable crime or has been accused of terrorism. A bail application involves the issue of whether the charged individual is likely to flee or is a national security risk. The inquiry must go into the person’s individual facts, not his/her status. The Judge must make a determination within a reasonable time, usually within 48 hours of the arrest.
Mandatory Detention may be imposed on an alien who has conceded deportability based on an admission of the commission of an aggravated felony. If a charged individual claims that he is not deportable, the United States Supreme Court has indicated that the individual should be entitled to an individualized determination if his/her period of continued detention becomes unreasonable or unjustified.
The Judge should consider the following in a bail hearing:
- Family ties in the U.S.;
- prior convictions;
- community ties;
- the nature of entry documents and the length of stay;
- participation in immoral or subversive activities;
- financial ability to post bond.
Two or more crimes of moral turpitude for which the sentence of imprisonment is at least one year or an aggravated felony are excludable acts requiring mandatory detention and exclusion from the United States. Although the stature provides that the Attorney General’s discretionary judgment shall not be subject to judicial review, yet numerous federal courts have held that the Immigration and Nationality Act may not preclude the Court’s jurisdiction over the issue of detention. The Court remains the ultimate arbitrator of statutory and constitutional interpretation. Indefinite detention based upon secret evidence, and denial of habeas corpus, have been held by the Federal courts to violate due process.
Various challenges to detention without release have been challenged in Court and succeeded when the detention was based upon retroactive provisions, or the inapplicability of the statute because of an inappropriate designation of an aggravated felony or for a period of continued detention becoming unreasonable or unjustified.
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