The 9th Circuit Clarifies When A Person Should be Mandatory Detained After Their Release From Criminal Custody

Generally, when an individual is detained by immigration, an individual qualifies for release on bond. To get a bond, individuals must prove that they are not a danger to the safety of other persons or of property and that they are likely to appear for any scheduled proceeding.

Some individuals, however, are subjected to mandatory detention. In other words, they cannot be released from detention unless it is necessary to release them to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, a potential witness, or a person cooperating with an investigation.

In Preap v. Johnson, the 9th Circuit held that the mandatory detention provision of § 1226(c) applies only to those criminal aliens detained promptly after their release from criminal custody, not to those detained long after.

This is great news for individuals being held without bond due to the violation of a mandatory detention offense that occurred several years prior to their current detainment.

Under 8 U.S.C. 1226(c), certain individuals are subjected to the mandatory detention provision if they commit certain offenses. The offenses range from serious felonies to misdemeanor offenses involving moral turpitude and simple possession of a controlled substance.

The issue in Preap v. Johnson is whether individuals are still subjected to mandatory detention if they completed their sentence for the offense that subjected them to mandatory detention several years ago?

The 9th Circuit answered in the negative.