Who is subject to mandatory detention
Section 1226(c) of the immigration code requires detention without bond for noncitizens removable on listed grounds. Those grounds include many controlled-substance offenses, certain crimes involving moral turpitude, aggravated felonies, firearm offenses, and terrorism-related grounds. Separate rules under § 1225(b) cover many people arriving at the border or treated as applicants for admission.
Whether a particular conviction actually fits a listed category is a legal question. It turns on the elements of the statute of conviction, the record of conviction, and how courts have classified that offense. ICE’s charging document is the start of that analysis, not the end of it.
How a Joseph hearing works
The detainee asks the immigration judge to find that they are not “properly included” within § 1226(c). The Board of Immigration Appeals set the standard in Matter of Joseph: the detainee must show that DHS is substantially unlikely to prevail on the removal charge or the classification that makes detention mandatory. Evidence typically includes the criminal judgment, charging documents, plea transcripts, and legal argument about why the offense falls outside the listed category.
If the judge agrees, the person is treated as detained under § 1226(a) and may receive a bond hearing. If the judge disagrees, the ruling can be appealed to the Board of Immigration Appeals, but the person usually stays detained while that appeal is pending.
Why the standard is criticized
The “substantially unlikely to prevail” test places a heavy burden on the detained person rather than on the government that is taking their liberty. Several federal judges and commentators have questioned whether it provides the process the Constitution requires, particularly when the classification question is close and the detention lasts months.
When federal habeas is the next step
A federal habeas petition under 28 U.S.C. § 2241 can raise the same misclassification question before a federal judge, and it can add a separate argument the immigration judge cannot decide: that mandatory detention has become so prolonged that due process requires an individualized hearing. Federal courts can also address the constitutional adequacy of the Joseph standard itself, which the immigration courts are bound to apply.
Frequently asked questions
What is a Matter of Joseph hearing?
It is a hearing before an immigration judge in which a detained person argues they are not properly subject to mandatory detention under 8 U.S.C. § 1226(c). If they win, the judge can consider releasing them on bond.
What is the standard in a Joseph hearing?
Under Matter of Joseph, 22 I&N Dec. 799 (BIA 1999), the detainee must show that DHS is substantially unlikely to prevail on the charge that subjects them to mandatory detention.
Who is subject to mandatory immigration detention?
Noncitizens removable on grounds listed in 8 U.S.C. § 1226(c), including many drug offenses, aggravated felonies, certain crimes involving moral turpitude, firearm offenses, and terrorism grounds, plus many people covered by § 1225(b) at or near the border.
This guide provides general information, not legal advice. Every detention case turns on its own facts and the law changes; consult an attorney about your specific situation.
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