“I just got home from my husband’s bond hearing. The government lawyer claimed his drug conviction disqualified him from being released at all. The immigration judge agreed. How can this be? He’s been a lawful permanent resident since he was a young child. He is over 40 years old now. He never went to jail for his crime and this happened a long time ago.”
(Submitted by Gloria D., La Quinta, CA)
The government attorney and the judge were referring to the rules known as “mandatory detention.”
These are some of the strictest rules in deportation defense law.
These rules apply to lawful permanent residents who have committed certain types of offenses. Many crimes involving controlled substances are included in this list.
So, on the surface, it seems your husband is out of luck on the bond issue.
However, there are several technical rules which have an impact on immigration detention and bond cases. You should carefully look into them.
For example, mandatory detention rules only apply to immigrants who were released from the custody of some law enforcement agency (like the local police or sheriff’s office) other than an immigration agency after October 8, 1998.
This raises two important issues for your husband.
First, you said his conviction took place a long time ago. How long ago? If his case happened before October 8, 1998, the judge may have made a mistake.
Second, you noted he never went to jail. Does this mean he was never arrested? Was he simply issued a warrant to appear in court? If he was never in physical custody, like jail, then the mandatory detention rules may not apply in his case.
If your husband thinks either issue fits his situation, he can file a new motion to challenge the court’s decision.
But even if the judge erred, this is not the end of the story. This only means he is not disqualified from seeking bond.
Your husband must still show he is neither a risk to flee nor a danger to the community to obtain bond.
This is where the reason your husband is now detained becomes important.
Was he trying to cross the border to re-enter the U.S.? Did he commit a new offense? Did he fail to meet his probation requirements? Or did ICE agents come to your house with a warrant to apprehend him?
To play if safe, your husband should not try to handle all this on his own. He should consult directly with an immigration lawyer before filing any papers or making any decisions.
Minor mistakes, after all, could lead to another negative decision.
Even worse, he could end up being deported and separated from you and all his family living here for the rest of his life.