When is When?: 8 U.S.C. § 1226(c) and the Requirements of Mandatory Detention

Abstract

Over the past several decades, immigration law has come to resemble criminal law in a number of ways. Most significantly, the current statutory regime allows the Attorney General (AG) to detain noncitizens during their removal proceedings. Ordinarily, the AG may detain noncitizens subject to removal so long as the AG provides an individualized bond hearing to assess whether the noncitizen poses a flight risk or a danger to the community. Pursuant to 8 U.S.C. § 1226(c), however, the AG must detain and hold without bond any noncitizen who has committed qualifying offenses “when the alien is released” from criminal custody throughout his removal proceedings.Courts disagree as to whether § 1226(c) requires the AG to detain noncitizen offenders immediately, or whether the AG may allow a noncitizen to return to the community for months, or even years, before effecting detention and still retain the authority to detain the noncitizen without a bond hearing. The question exists in the intersection between criminal law and immigration law and the overlap between an agency’s power to interpret statutes and the court’s obligation to do so. This Note will examine the timing question that § 1226(c) presents and offers a solution that seeks to balance the liberty interests of detainees with the government’s interests in protecting the community and ensuring removal.