INTRODUCTION
The process of representing an alien in the removal
context most often commences when the alien is arrested.
The arrest can occur at a port of entry or it can
occur after the alien is already in the United States.
For an attorney retained to try to accomplish legalizing
or re-legalizing the arrested alien's presence in
the United States, the first and most pressing task
of the immigration attorney is dealing with the issue
of whether the alien can be released on bond and,
if so, effecting the release.
THE LEGAL BASIS FOR ARREST AND DETENTION
The government's authority to arrest and detain aliens
is found in the Immigration and Nationality Act. There
are two contexts for arrest – at the border
and inside the United States.
ARREST AT THE BORDER
The statutory authority for an arrest at the border
is found at INA § 235(b)(2)(A), which states:
In general. Subject to subparagraphs (B) and (C),
in the case of an alien who is an applicant for admission,
if the examining immigration officer determines that
an alien seeking admission is not clearly and beyond
a doubt entitled to be admitted, the alien shall be
detained for a proceeding under section 240.
At this stage of the process, for aliens intent
to eventually be allowed entry into the United States,
detention is desirable to the unsavory alternative
of being ordered removed by an immigration officer
under the expedited removal procedures at INA §
235(b)(1). Thus, in many cases, the first hurdle to
the goal of legalizing the client's status in the
United States is to have the client be detained rather
than expeditiously removed. The most typical examples
of clients who need to be detained before they can
hope to live freely in the United States are long-term
residents who seek to prove they are eligible for
Cancellation of Removal for Certain Nonpermanent Residents
and aliens who are seeking asylum. Recently, a new
class has emerged as able to benefit from being allowed
into the United States, those who can adjust status
here.1
According to INA § 235(b)(1), an alien is subject
to expedited removal if: he is removable for lacking
a visa2 or for
perpetrating a fraud to effect his entry3 – unless he is a lawful permanent resident or
if he demonstrates a well-founded fear of persecution
through a procedure known as a credible fear interview,
discussed at INA § 235(b)(1)(B). No other equities
can automatically void the result.
As a result, should a person with substantial equities
in the United States, such as a United States citizen
wife and several United States citizen children arrive
at the port of entry and not have a fear of persecution
and not be a lawful permanent resident, he faces expedited
removal. It is possible that instead of being removed,
he could be permitted to withdraw his application
for admission,4 but this
most often will not advance the goal of being able
legalize one's status in the United States. However,
if the only alternative is an expedited removal order,
permission to withdraw the application is most often
the better alternative.5 A person being subjected to expedited removal is,
under normal circumstances, ineligible for a bond
pending removal.6
One other wrinkle in the issue of detention and bond
is INA § 235(b)(2 )(C), which states that an
arriving alien who is not clearly and beyond a doubt
entitled to be admitted and who is arriving on land
(whether or not at a designated port of arrival) from
a foreign territory contiguous to the United States
may be returned to that territory pending removal
proceedings. Neither Immigration and Customs Enforcement
(ICE) nor Customs and Border Protection (CBP) seem
to do this, at least on California’s border
with Mexico. Despite the great expense of detaining
aliens and complaints about the policy of “catch
and release” of aliens7 because of a shortage of detention space, DHS seems
uninterested in simply returning Mexicans to Mexico
to await their
removal hearings.
This is not to say that all arriving Mexicans (or
Canadians) would benefit from releasing them to their
countries pending removal hearings. Both Canada and
Mexico are very large countries and returning an alien
to the other side of the border is not by any means
like sending him home to wait for court. Also, judging
by how long detained aliens wait for court hearings,
one can only imagine how long an “exiled”
alien waiting in Mexico or Canada would have to wait
for a hearing to resolve his or her case, effectively
deporting him or her in the interim.
ARREST OF ALIENS INSIDE THE UNITED STATES
An alien admitted to the United States, including
permanent residents, or who made his or her way into
the United States without inspection, can be detained
pending a decision on whether he or she is to be removed
from the United States.8 Interestingly, this detention
statute explicitly states the purpose of detention
– pending a decision on whether the alien is
to be removed from the United States. It is not a
provision for the warehousing of non-deportable but
undesirable aliens. This scenario often occurs when
an alien lawfully in the United States is arrested
and charged with a crime and the criminal court sets
a bond for his release. When there is an immigration
hold, sometimes ICE takes custody of the person. The
issue is immediately what authority ICE has to hold
the person. If there is no ground of removability,
then ICE cannot hold him. If there is a ground to
remove the individual, then ICE needs to set them
up for a removal hearing before an immigration judge
(IJ). To simply hold the alien while the criminal
case progresses is outside of ICE’s authority.
MANDATORY DETENTION OF DETAINED ALIENS
When seeking release, the first area of investigation
is whether ICE even has the authority to release the
alien. The Mandatory Detention statute, INA §
236(c)9, governs this decision.. This statute was
part of IIRAIRA,10 enacted on September 30, 1996.
Because the law represented a dramatic change in detention
policy and Congress realized that detention space
was not available, Congress provided for a transitional
period with transitional custody rules.11 The law
of mandatory detention did not come into force for
two years after the passage of IIRAIRA, on October
9, 1998. The statute states that:
[T]he Attorney General shall take into custody any
alien [who has subject to certain grounds of removability]
when the alien is released, without regard to whether
the alien is released on parole, supervised release,
or probation, and without regard to whether the alien
may be arrested or imprisoned again for the same offense.”12
The interpretation of the “when the alien
is released” language became of focus of a substantial
amount of litigation in the federal district courts
after the mandatory detention provisions came into
force on October 9, 1998.
Aliens asserted that only aliens picked up by immigration
officers when they were leaving jail were subject
to mandatory detention. Aliens also argued that mandatory
detention was unconstitutional as an infringement
of their substantive due process right to liberty
and their procedural due process right to a hearing
regarding their right to a hearing to determine whether
they could be released. The government asserted that
aliens sitting at home on their couches, released
even long before October 9, 1998, were subject to
mandatory detention once the transitional rules expired.
After much litigation, the result is that contrary
to the government’s assertions, the mandatory
custody rules are not retroactive. They apply only
to persons released from state or federal custody
on or after October 9, 1998.13 Contrary to aliens’
assertions, there does not need to be an immediate
handover from the criminal jail to the immigration
jail for mandatory custody to apply– the alien
can be arrested on his livingroom couch as long as
he was released to his couch on or after October 9,
1998.14 Also, contrary to aliens’ assertions,
the Supreme Court concluded that mandatory detention
of aliens, including permanent residents, while removal
proceedings are pending is Constitutional.15 The Ninth
Circuit Court of Appeals has recently carved out some
exceptions for cases of particularly egregious prolonged
detention.16
The exceptions to being subject to mandatory custody
are very limited. This section restricts release to
those involved in a witness protection program, making
virtually all aliens covered in 236(c) subject to
mandatory detention. To the astonishment of many,
there is no exception for health reasons or for hardship
to family members. Mandatory means mandatory.
MANDATORY DETENTION FOR INADMISSIBLE ALIENS
According to the mandatory detention statute, anyone
charged with inadmissibility for conduct under INA
§ 212(a)(2) shall be detained during the pendency
of removal proceedings.17 This includes individuals
arriving at a port of entry and seeking admission
(arriving aliens)18 and
individuals who are physically present in the United
States but not admitted, such as those who entered
without inspection and parolees, and thus subject
to grounds of inadmissibility.
Because aliens subject to grounds of inadmissibility
are subject to mandatory detention for any ground
of inadmissibility under INA § 212(a)(2), virtually
all aliens, including permanent residents who are
deemed arriving aliens who have convictions and were
released from jail for their crimes on or after October
9, 1998, must be detained. Regarding aliens with moral
turpitude offenses, it is useful to bear in mind the
petty crime exception to the ground of inadmissibility
for crimes of moral turpitude at INA § 212(a)(2)(A)(ii),
which could mean that a client is not inadmissible
at all, even if his “petty crime” is also
a crime that could be a deportable offense
such as an aggravated felony,19 or a crime of domestic
violence.20 This is so because in such a case the
client would not be inadmissible under INA §
212(a)(2)(A(i)(II) because of the petty offense exception
and would not be deportable under INA § 237 by
virtue of being an arriving alien and not subject
to an INA § 237 ground of deportability.21 It
is also worthy of note that any controlled substance
violation comes under INA § 212(a)(2), specifically
at INA § 212(a)(2)(A)(i)(II), which amounts to
a large number of those mandatorily detained. One
should, of course, be aware of leniencies in the Ninth
Circuit for a single simple possession conviction
under Lujan Armendariz v. INS.22 Aliens inadmissible
for actions or potential actions relating to terrorism23 are also subject to mandatory detention.24
MANDATORY DETENTION FOR DEPORTABLE ALIENS.
Persons who face charges of deportability under INA
§ 237(a) (i.e., those admitted to the United
States) are also subject to mandatory detention. An
attorney must carefully review INA § 236(c)(1)
before concluding at a crime is a mandatory detention
crime. While two crimes of
moral turpitude,25 aggravated felonies,26 controlled
substance crimes,27 firearms offenses,28 and a list
of miscellaneous crimes,29 do lead to mandatory detention,
others, such as crimes of domestic violence, stalking,
violation of a protection order and crimes against
children,30 crimes relating to false documents and
failing to register,31 export violation crimes,32 or a single crime of moral turpitude within five years
of admission33 unless a year or more of confinement
was actually imposed, do not result in mandatory detention.
The ground of deportability for espionage, sabotage,
criminal activity that endangers public safety or
national security, or overthrowing the United States
by force or violence or otherwise unlawfully is also
a mandatory detention offense.34
Because of the differences between grounds of inadmissibility
and grounds of deportability, some anomalies exist.
For example, while an alien seeking admission to the
United States may be an aggravated felon,35 which
is a ground for mandatory detention at INA §
236(c)(1)(B), aggravated felony is not a ground of
inadmissibility. Thus, it is possible that an alien
deemed an alien applying for admission, while an aggravated
felon, would not be subject to mandatory detention
if his crime did not fit anywhere under the mandatory
detention grounds found at INA § 212, which governs
non-admitted and arriving aliens. Similarly, while
an alien who was admitted to the United States and
convicted of a firearms offense36 is subject to mandatory
detention, an unadmitted alien or an arriving alien
would not necessarily be because firearms offenses
are not grounds of inadmissibility.
Perhaps an example is useful. Your client entered
the United States five years ago without inspection.
He remains undocumented. He was convicted of being
an illegal alien in possession of a handgun, and sentenced
under 18 USC § 922(g)(5). This conviction is
arguably a firearms offense pursuant to INA §
237(a)(2)(C) and an aggravated felony pursuant to
INA § 101(a)(43)(E)(ii). Both of these sections
mandate mandatory detention. However, because your
client entered without inspection, he did not undergo
inspection and authorization by an immigration officer
and pursuant to INA § 101(a)(13) has not been
admitted. As such he cannot be placed in proceedings
governed by the INA § 237 grounds because he
is not in and admitted to the United States as required
at INA § 237(a). Consequently, he is charged
under INA § 212(a) grounds. There is no criminal
ground at INA § 212(a)(2) that corresponds to
the firearms offense ground or the aggravated felony
ground. Thus he is eligible for release on bond. Should
ICE not accept this argument, an IJ should.
RELEASE FROM DETENTION FOR ARRIVING ALIENS.
Once the alien is detained and has avoided expedited
removal, efforts begin to effect the alien's release.
These overtures are made to ICE, as the immigration
courts do not have jurisdiction regarding arriving
aliens.37 Because an IJ has no authority over the
apprehension, custody, and detention of arriving aliens
he is also without authority to consider the bond
request of an alien returning pursuant to a grant
of advance parole.38 At this point, the alien is seeking
parole into the United States, parole being a legal
fiction wherein an alien is physically inside the
United States, though he has not been admitted to
the country.
ICE’s concerns are whether the alien poses
a threat to public safety and whether the alien is
a flight risk.39 An attorney should present a packet
to the ICE officer requesting release and documenting
that ICE should not find that the alien is a danger
to the community or a flight risk. It is prudent to
include documentation to describe the human element
of the alien, as this can go a long way in showing
that the alien is not a danger.
Thus, documentation showing that the alien has a
family, supports his family economically and emotionally,
is involved in the schooling of his children, cares
for ill relatives, attends religious services, pays
taxes, and is a good friend and neighbor can help
effect release. In addition, in the case of an alien
with criminal convictions, documentation showing the
relatively minor nature of the conviction, that probation
was completed successfully, that the crime occurred
a long time ago, and the alien has since rehabilitated,
and that the crime was an aberration, also will help
demonstrate that the alien is not a danger. Documentation
such as copies of marriage and birth certificates,
family members' immigration documents, proof of employment
through recent pay stubs and tax returns, and letters
from family, friends, doctors, probation officers,
co-workers, employers, and clergymen will help the
client.
As far as the issue of flight risk, if relief is
available to the client, this is strong evidence that
the alien has every interest in attending his hearing.40 Evidence that shows strong roots to the community
and close family ties and interdependence is also
probative of a low flight risk. A lack of history
of failing to appear and of absconding should also
be pointed out. ICE should also be reminded that any
residual concerns regarding a flight risk can be cured
through the setting of a reasonable bond. Some ICE
offices look for an I-134 Affidavit of Support as
part of the release request packet, particularly in
the case of releasing aliens seeking asylum who are
new to the United States.
If you are dealing with a local ICE field office
that is new to you, you should contact that office
and practitioners who have dealt with that office
to learn what that office expects and what the procedures
are for requesting a client’s release from custody.
RELEASE FROM DETENTION FOR ALIENS WHO HAVE
ACCOMPLISHED ENTRY.
After ICE arrests an alien present in the United
States after an admission or after entering without
inspection, ICE makes an initial custody determination41 .
An alien may also request a custody (or bond) hearing
before an IJ to either contest ICE’s bond determination
and seek a lower bond amount or to request that bond
be set42 . If ICE determines that an alien is subject
to mandatory detention, that determination may also
be contested before an IJ at a bond hearing.43
Exactly how to schedule a bond hearing differs from
court to court. The regulations allow for scheduling
by written or oral motion or by request by telephone.44 Often, IJ’s accept documentation at the time
of the hearing in support of the bond request. Individual
courts and even individual IJ’s may have different
practices so consultation with the clerk of the court
is a prudent move. Where the argument is that an individual
is not properly classifiable as subject to mandatory
detention or is not removable, it is advisable to
brief the court in advance of the hearing. Even then,
it is quite possible (if the ICE Chief Counsel opposes
your position) the IJ will not rule without giving
the government a chance to respond, necessitating
prolonged detention for your client.
Where Counsel has a strong argument that an alien
is not subject to mandatory detention, either because
the client does not fit in a category under INA §
236(c) or because the alien is not removable at all,
relying on the IJ at a custody hearing to release
your client could take a long time or be unavailing
should the IJ defer to the IJ conducting the removal
hearing to make important legal conclusions. In such
a case, prudence dictates informing ICE Detention
and Removal officers and the Office of the Chief Counsel
of your arguments before the custody hearing. ICE
officials know they make mistakes and may just release
your client. Where an alien’s detention is unlawful,
it also alerts the officer to this and the fact that
his disregard for the law could subject ICE and even
the individual officer to civil sanctions.45
An IJ has the discretion of whether or not to record
bond proceedings. A bond proceeding is separate and
apart from removal proceedings.46 Thus, Counsel must
re-submit documents with the court for a removal proceeding
though the documents may have been filed with the
court in a bond proceeding.
The INA requires that the minimum bond to release
an alien be $1,500,47 at least when the IJ sets bond.
IJ’s sometimes order release without the requirement
to post any bond. This can occur when there are particularly
compelling humanitarian reasons, such as when an alien
is unambiguously eligible and deserving of relief
from removal but is very poor, or when it is quite
obvious that the alien is not removable. It is not
clear where the authority lies for release of an alien
on his own recognizance; perhaps from INA § 236(a)(2)(B),
which allows for conditional parole, a term of art
unexplained in the statute or regulations. It would
indeed be anomalous for an IJ to determine that the
government is substantially unlikely to prevail in
a removal case because the alien is in fact a United
States citizen, but then require this alien to post
a bond to be released.
APPEAL
Either party may appeal the determination of the
IJ with respect to custody to the Board of Immigration
Appeals (BIA). There is no fee for a bond appeal.48 Because there is often no audio record, the IJ must
prepare a memorandum of decision summarizing his or
her findings and conclusions.49 There are no transcripts
or formal evidentiary record on appeal; the BIA will
issue a briefing schedule and all parties are presumed
to have a record of the documentary evidence. Bearing
in mind that a BIA decision regarding the bond appeal
may be months off, one should consider whether the
removal case will be concluded before the BIA adjudicates
the bond appeal.
ICE has the authority to stay an IJ’s custody
determination. ICE can do this two ways. ICE can ask
the BIA to impose a stay when it files an appeal.50 Additionally, ICE can stay an IJ's order in any case
where ICE had originally determined that there would
be no bond or set a bond of $10,000 or higher.51 To
do this, the ICE counsel has to file a Notice of Intent
to Appeal Custody Redetermination, Form EOIR-43, within
one business day of the IJ’s order. For this
“automatic stay” to remain in place, ICE
counsel must actually file a notice of appeal within
ten business days of the IJ’s order. In the
meantime, the alien remains in confinement. The stay
remains in place unless the BIA lifts it. The BIA’s
lifting of the stay itself is automatically stayed
for five days to give ICE an opportunity to certify
the lifting decision to the Attorney General.52
CHANGED CIRCUMSTANCES
It is not uncommon that at a bond hearing, the IJ
refuses to allow the alien to be released.53 In addition
to appealing the decision, an alien can also ask for
a new custody hearing. While the first bond redetermination
hearing can most often be requested orally, the second
and subsequent requests are made on written motions.54
The standard is that the alien present substantially
changed circumstances before an IJ will grant a second
or subsequent bond hearing.55 This is a difficult
standard, particularly because of the nature of the
initial bond hearing. The alien and counsel are often
disposed to seek at bond hearing as soon as possible.
Sometimes the documents that could persuade an IJ
to set a bond are not yet available and the IJ refuses
to set a bond. Just obtaining these documents is not
a substantially changed circumstance that will motivate
a new hearing . The reality is that there is effectively
only one bite of the apple at the custody hearing
phase of the case and it is best to prepare adequately
rather than squander the only real opportunity to
have the IJ order a reasonable bond and release of
the alien. An alien can seek a second or subsequent
bond redetermination hearing without jeopardizing
a pending appeal of a decision rendered in the first
hearing56.
In the case of arriving aliens, recourse for reconsideration
is to submit a new request to the ICE officer in charge
of the case or ask for supervisory review. Quite frequently
ICE officers deny bonds based on mistaken assumptions
about the case. For example, in one recent case, an
ICE officer denied an alien’s release because
the alien had a prior deportation order. The ICE officer
assumed the alien therefore had no relief available
to him. When it was pointed out that the deportation
occurred before the alien became a permanent resident
through amnesty, a bond was set. In another case,
an ICE officer denied a bond because the alien had
already received relief once in immigration court,
and thus could not obtain relief a second time.57 When it was pointed out that the relief the alien
received was Registry,58 the officer set a bond.
One interesting variation on the normal course of
proceedings is when, after an IJ sets a bond, ICE
alleges a change in circumstances to either refuse
to release the alien or takes the alien back into
its custody. It seems contrary to the regulatory scheme
for the government to be able to simply ignore an
IJ’s order. The government, on the other hand
asserts that if new information is unearthed or new
anti-social conduct is committed, the government should
be free to detain the alien rather than countenance
a threat to society roaming the streets. The government
asserts that has authority to take an alien back into
custody on its own initiative.59 Further, an amendment
to the regulations changed 8 CFR 1003.19(e), regarding
filing a motion with the IJ for reconsideration of
custody status, from neutrally relating to both the
government and the alien to referring only to the
alien.60 Thus, the mechanism for the government to
seek reconsideration of the terms of custody through
the immigration court does not even exist.
CONCLUSION
Homeland Security has been vested with great powers
to detain aliens. The procedures the agency uses to
arrest, detain, and release aliens depend on where
the alien was arrested, when the alien was arrested
and why the alien is being detained. Counsel for aliens
ensnared in the DHS detention system are wise to figure
out exactly what the legal position of the client
alien is. While the harshness of the current system
of detention precludes the release of many, for those
who can be released, the efforts to make this release
possible are particularly rewarding because of the
importance we all attach to freedom.
10
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009. Prior
to IRRAIRA, other detention laws applied, including
the Immigration Act of 1990 that required the detention
of aggravated felons who were not permanent residents.
See, inter alia, the pre-IRRAIRA INA §§ 242(a)(2)(A)
and (B).
11 8 CFR §§ 1236.1(c)(2) - (c)(8).
12 INA § 236(c)(1).
13 Matter of Adeniji, 22 I. & N. Dec. 1102 (BIA
1999).
14 Matter of Rojas, 23 I. & N. Dec. 117 (BIA
2001). This decision has never been affirmed by the
Ninth Circuit Court of Appeals, probably because no
one has sat detained long enough without a change
in circumstances (like losing his case) for the case
to be decided.
15 Demore v. Kim, 538 U.S. 510 (U.S. 2003).
16 Tijani v. Willis, 430 F.3d 1241, 1243 (9th Cir.
2005); Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir.
2006).
17 INA § 236(c)(1)(A).
18 See, 8 CFR § 1.1(q) for the definition of
arriving alien and INA § 101(a)(13)(C) for the
definition of when a permanent resident is considered
an applicant for admission and thus, an arriving alien.
19 INA § 237(a)(2)(A)(iii).
20 INA § 237(a)(2)(E).
21 The ground of deportability, INA § 237(a)(2)(E),
is not a mandatory-detention offense. See, discussion,
infra.
22 222 F.3d 728, 733 (9th Cir. 2000).
23 INA § 212(a)(3)(B).
24 INA § 236(c)(1)(D).
25 INA § 237(a)(2)(A)(ii).
26 INA § 237(a)(2)(A)(iii).
27 INA § 237(a)(2)(B).
28 INA § 237(a)(2)(C).
29 INA § 237(a)(2)(D).
30 INA § 237(a)(2)(E).
31 INA § 237(a)(3).
32 INA § 237(a)(4)(A)(i).
33 INA § 237(a)(2)(A)(i)(I).
34 INA § 237(a)(4)(B).
35 INA § 237(a)(2)(iii).
36 INA § 237(a)(2)(C).
37 8 CFR § 236.1(c)(11).
38 Matter of Oseiwusu, 22 I. & N. Dec. 19 (BIA
1998); 8 CFR § 1212.5(b).
39 8 CFR § 236.1(c)(8)(1999); Matter of Drysdale,
20 I. & N. Dec. 815 (BIA 1994); Matter of Adeniji,
Int. Dec. 3417 (BIA 1999).
40 San Diego ICE has a policy as of late not to
release any alien who is not eligible for relief.
This applies to cases where inadmissibility is at
issue, such as alien smuggling cases. As an example,
trying to show an ICE officer how weak the smuggling
case is will not dissuade officers from denying a
request for release from custody unless the alien
has Cancellation of Removal for Certain Permanent
Residents relief available to him or her.
41 8 CFR § 1236.1(c)(1). As of late, ICE officers
in San Diego, asserting they are overwhelmed with
bond determinations in cases of arriving aliens where
they have exclusive jurisdiction, are not releasing
aliens and leaving the bond-setting process to the
immigration court.
42 8 CFR § 1003.19. An alien can even ask for
a bond hearing up to seven days after he is released
if he is unsatisfied with the terms of his release,
i.e., the restrictions ICE has placed on him or her
or the amount of the bond ICE set. 8 CFR §1236.1(d)(1).
After this seven day period, the alien can make this
request to ameliorate the terms of release to the
local ICE field office director.
43 Matter of Joseph, 22 I. & N. Dec. 799 (BIA
1999). An alien may seek release, not only based on
an assertion that the removability charge is not a
basis for mandatory detention, but also based on a
contention that the charge of removability is not
sustainable and thus detention is not appropriate.
See also, 8 CFR § 3.19(h)(2)(ii). At a Joseph
hearing,” the BIA indicated that when an IJ
undertakes to decide whether an alien is a member
of a mandatory detention category, the IJ need not
make a finding regarding the merits of the case, but
needs only to decide that the INS is substantially
unlikely to prevail in its charge. At a Joseph hearing,
the alien can also contest that he is an arriving
alien which deprives the IJ of jurisdiction over bond
setting. This usually occurs in the context of a lawful
permanent resident apprehended at the border who asserts
he is not applying for admission according to INA
§ 101(a)(13). Similarly, a United States citizenship
claim can be made at a Joseph hearing. The Joseph
hearing procedural safeguard to unlawful detention
was an underpinning of the Supreme Court’s conclusion
that mandatory detention of permanent residents is
constitutional. Demore v. Kim, supra.