Mandatory Detention Means No Bond, No Matter What
One of the harshest features of U.S. immigration law is mandatory detention under INA § 236(c). Non-citizens subject to mandatory detention are held in ICE custody throughout their removal proceedings — sometimes for years — with no opportunity for bond release, regardless of their ties to the United States, family circumstances, or individual characteristics. Whether you are in Louisville, Lexington, or anywhere in Kentucky, Clark + Harris helps non-citizens understand and, when possible, challenge mandatory detention.
Who Is Subject to Mandatory Detention
Under INA § 236(c)(1), mandatory detention applies to non-citizens who are:
- Inadmissible on specified criminal grounds under INA § 212(a)(2)
- Deportable for specified criminal grounds under INA § 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D)
- Deportable for CIMTs under INA § 237(a)(2)(A)(i) and sentenced to 1 year or more
- Deportable for terrorist activities under specified provisions
In practice, this means mandatory detention applies to most non-citizens with aggravated felony convictions, most non-citizens with controlled substance convictions, and many non-citizens with CIMT convictions.
Why Mandatory Detention Is So Harsh
Mandatory detention removes ordinary bond analysis entirely. In most criminal cases and many non-criminal immigration cases, detention determinations involve individualized assessment of flight risk and danger to the community. Under mandatory detention, these factors don’t matter. Non-citizens with lifelong U.S. ties, U.S. citizen children, steady employment, and no danger to anyone can be detained indefinitely alongside serious criminal defendants.
The Rodriguez and Jennings Decisions
The Supreme Court’s decision in Jennings v. Rodriguez, 583 U.S. 281 (2018), held that the immigration detention statutes do not require bond hearings for mandatorily detained non-citizens after six months. This decision severely limited a line of lower-court cases that had required periodic bond hearings. After Jennings, mandatory detention can continue indefinitely throughout removal proceedings.
The “When Released” Timing Requirement
Under INA § 236(c), mandatory detention applies to non-citizens “when released” from criminal custody. Some lower courts had held that non-citizens who were not taken into ICE custody immediately upon release from criminal custody were not subject to mandatory detention — but the Supreme Court’s decision in Nielsen v. Preap, 586 U.S. 392 (2019), held that the “when released” clause doesn’t limit mandatory detention to immediate transfers. Non-citizens apprehended years after release from criminal custody can still be subject to mandatory detention.
Challenges to Mandatory Detention
Despite the harsh statutory framework, several avenues exist to challenge mandatory detention:
- Joseph hearings: Non-citizens can request Matter of Joseph hearings to argue they are not properly included within the mandatory detention categories
- Categorical approach challenges: Non-citizens can challenge whether their specific convictions qualify as the triggering offenses
- Due process challenges: In rare cases, prolonged detention may support constitutional challenges
- Direct appellate challenges: Some circuits have held that prolonged detention without bond violates due process
Strategic Implications for Criminal Defense
Mandatory detention is one of the most powerful reasons for non-citizens to avoid qualifying criminal convictions. A plea that avoids aggravated felony classification, avoids the controlled substance category, or keeps the sentence under 1 year can make the difference between mandatory detention and release on bond.
Contact Clark + Harris for Non-Citizen Defense
Understanding mandatory detention is essential for any non-citizen facing Kentucky criminal charges. Clark + Harris provides the criminal defense that protects against mandatory detention when possible.
Call 859-474-0001 today for a confidential consultation.
Frequently Asked Questions
How soon should I contact Clark + Harris after being charged in Kentucky?
As soon as possible. Early representation protects your rights during questioning, preserves evidence, and often leads to better outcomes. Call 859-474-0001 — we respond promptly to new inquiries.
Does Clark + Harris represent clients throughout Kentucky?
Yes. We represent clients in all 120 Kentucky counties, both state District and Circuit courts, and federal courts in the Eastern and Western Districts of Kentucky.
What happens during a free consultation with Clark + Harris?
We review the specific charges and evidence, discuss available defenses, explain the likely process in the relevant court, and give you a clear roadmap of next steps — at no cost to you.
Related Resources
If this information applied to your situation, the following Clark + Harris guides may also be helpful:
- ICE Holds at Louisville Metro Department of Corrections (LMDC)
- Bond Hearings for Non-Citizens in Immigration Court
- Cancellation of Removal for Lawful Permanent Residents
- 212(h) Waivers for Non-Citizens With Criminal Convictions
- Non-LPR Cancellation of Removal: INA § 240A(b)