The Mandatory Federal Detention Provisions in the Laken Riley Act

Earlier this year, the Laken Riley Act became federal law. Many are concerned or confused about this new federal legislation. Specifically, the Act’s mandatory federal detention provisions. What about undocumented persons? Visa holders? DACA people? Who can be detained if charged with theft or a violent act? Consider the following:

1. The 2025 Laken Riley Act

Passed into law earlier this year, the Laken Riley Act is an amendment to the Immigration and Nationality Act of 1952 (“INA”), amending sections 8 U.S.C. ch. 12 subch. II §§ 1182(d)(f); 1225(b); 11226; 1226(c); 1231(a)2); 1252(f); and 1253.

Read the Laken Riley Act here.

The federal legislation is named after Georgia nursing student Laken Riley who was murdered while jogging on the campus of the University of Georgia at Athens. Jose Antonio Ibarra was convicted of felony murder alongside other charges that included aggravated assault with intent to rape, and sentenced to life in prison without the possibility of parole.

He was a Venezuelan citizen confirmed to have been caught crossing the Texas border (El Paso) and released into the United States by the Department of Immigration and Customs Enforcement (“ICE”). Before the murder, Ibarra had been charged with “acting in a manner to injure a child less than 17” as well as a motor vehicle license violation in New York City, and had also been arrested on charges of theft in Athens, Georgia.

For more details, read “Laken Riley Murder: Jose Ibarra Sentenced To Life Without Parole For Killing Georgia Student,” written by Molly Bohannon and published by Forbes on November 20, 2024; and “For Suspect in U. of Georgia Killing, an Obscure Trail Across States,” written by Colbi Edmonds and Alessandro Marazzi Sassoon and published by the New York Times on February 29, 2024.

Shortly after its passage, the Department of Justice sent out internal guidance for its Executive Office for Immigration Review (EOIR), explaining that the Act (1) provides “…an additional category of aliens who are subject to mandatory detention,” referencing INA § 236(c)(1)(E), 8 U.S.C. § 1226(c)(1)(E), and (2) that the Act provides clarification for certain terms, including the terms “burglary,” “theft,” “larceny,” “shoplifting,” “assault of a law enforcement officer,” and “serious bodily injury” “have the meanings given such terms in the jurisdiction in which the acts occurred.” INA § 236(c)(2), 8 U.S.C. § 1226(c)(2).

2. What is Federal Detention?

The U.S. Marshals Service oversees the federal detention process. From the moment that someone comes into custody within the federal criminal justice system, no matter the various federal agencies involved, the Marshals Service assumes responsibility for the individual. The Marshals transport and house the person in a jail.

Federal detention is being held behind bars before being sentenced for a crime. After an arrest, the individual is kept in federal custody (detained) unless the judge grants bail or otherwise releases them.

Jails are not the same as prisons. Detention is in a jail. For more, read Will You Go to State Jail or Texas Prison? The Importance of Plea Negotiations.

How long does this detention last? It depends if they can get bonded out or not. As the U.S. Marshals Service explains:

Individuals who are arrested or detained for violation of federal statutes must be brought before a magistrate or judge for an initial hearing. After the hearing, prisoners may be released or remanded into the custody of the respective U.S. Marshal to stand trial. If convicted at the actual trial, it is the agency’s responsibility to deliver the prisoner to an institution to serve the imposed sentence.

The U.S. Marshals Service keeps these accused people (innocent, remember, until proven guilty) incarcerated in various places. The jail cells may be in federal facilities. They may also be in state or local jails, or even in private jails.

Offices for the U.S. Marshals Service are found all around the State of Texas. Within Dallas County alone, for instance, there are ten different offices and one detention center.

• For more on detention or pre-trial release, read our discussion in How To Get Out of Jail on a Federal Charge: Federal Arrest, Bail, and PreTrial Detention. Also see our upcoming article discussing the United States Marshals Service in more detail.

3. No Bond in the Laken Riley Act

Bond is a vehicle that allows someone in federal detention to be released from jail while awaiting trial on the criminal charges levied against them. It is a process involving the person paying a specific amount of money or pledging collateral that the court deems sufficient to insure they will return for their court appearances, including their trial. The bond is a decision made by the judge.

In the Laken Riley Act, provisions are clear: there is no bond allowed. Mandatory detention is mandated for those listed within the legislation.

Staying in jail, even though the person has been arrested or charged and not convicted, is required by the Laken Riley Act. The judge has no discretion here.

4. Unlawfully Present

The Laken Riley Act is specific in its application. Detention applies only to those who are “unlawfully present in the United States or did not possess the necessary documents when applying for admission.”

Therefore, bond remains available to non-citizens who can demonstrate to the court that they are legally present here or had the necessary documents in hand when applying for admission to the United States.

5. Specific Crimes in the Laken Riley Act

Not all federal criminal charges come under the provisions of the Laken Riley Act. The legislation amends the categories of mandatory detention under the INA by inserting a new category that requires the Department of Homeland Security (“DHS”) (think ICE) to detain any alien (as defined in the INA) who:

is inadmissible under paragraph (6)(A), (6)(C), or (7) of section 212(a); and is charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, shoplifting, or assault of a law enforcement officer offense, or any crime that results in death or serious bodily injury to another person.

For purposes of mandatory detention, the Laken Riley Act also states that the identified offenses will have the meanings given such terms in the jurisdiction where they occurred.

Therefore, someone who is arrested (much less convicted, or confessing to committing) for any one of the following crimes and meeting the definition of illegal alien in the INA does not get the option for bond and a return to freedom pending a trial. The Laken Riley Act is clear they are to be mandatorily detained by the U.S. Marshals Service until the matter is resolved for charges involving:

• burglary

• theft

• larceny

• shoplifting

• assault of a law enforcement officer

• any crime that results in serious bodily injury or death to another person.

Of note, this is not an entirely new hurdle faced by experienced federal criminal defense lawyers. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 mandates that illegal aliens who commit certain crimes face mandatory detention while their immigration proceedings are pending. In its amendment to the INA, this 1996 legislation (under Section 246(c) of the INA) establishes mandatory detention for things like crimes of moral turpitude ( e.g., aggravated felony, drug offense, firearms offense) or crimes like espionage, sabotage, treason, or terrorist activity. See, Demore v. Kim, 538 US 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (upholding mandatory detention provisions).

Some Texans may find interest in a portion of the Laken Riley Act deemed the “Cornyn Amendment,” for the insertion proposed by Texas Senator John Cornyn. It provides for detaining illegal aliens who are charged with or convicted of assaulting a law enforcement officer are to be held in jail without bond. Read, “VIDEO: Senate Passes Cornyn Amendment to Detain Illegal Migrants Who Assault Law Enforcement Officers,” published by the Office of United States Senator John Cornyn on January 16, 2025.

Undocumented Persons

Undocumented people are those who are in the United States without proper paperwork: they are without legal inspection and approval by the government or they have immigration status but have obtained it through fraud or misrepresentation. They do not have legal avenues to obtain citizenship here.

From Wex, a cursory explanation:

Undocumented immigrants are individuals who have either illegally entered the United States without inspection, or legally entered with valid nonimmigrant visas but those visas have expired. For instance, an individual issued a student F-1 visa can become undocumented if they do not fulfill the minimum course of study requirement or if they work without authorization….

Undocumented immigrants live in the United States without legal immigration status. They are not provided work authorizations and there are no pathways for them to gain citizenship….

Undocumented immigrants may change to legal status by claiming asylum or temporary protected status.

See, 8 C.F.R. § 214.2(f); 8 U.S.C. § 1357(a); 8 U.S.C. § 1226; 8 U.S.C. § 1231).

Undocumented individuals are subject to mandatory detention under the Laken Riley Act.

Visa Holders, Green Card Holders

There are different types of visas overseen by the State Department. For instance, there are work visas; family-based visas; and student visas. Green card holders are lawful permanent residents (LPR) who have passed government admissibility checks.

There will not be mandatory detention under the Laken Riley Act for visa holders or green card holders, because the Act only applies to non-citizens of the United States who are “unlawfully present” or entered the country without the required documentation. INA §§ 236(c); 212(a)(6)(A), (C), or (7)).

The Laken Riley Act does not apply to those who are considered valid entrants into the country.

Deferred Action for Childhood Arrivals (DACA) Recipients

The Deferred Action for Childhood Arrivals (DACA) program applies to people who came into the United States as children without government approval documentation, allowing them to stay in the country for two years and thereafter applying for renewal.

The initial version of the Laken Riley Act did not protect DACA recipients. Two amendments were advanced by Senator Dick Durbin to exclude DACA recipients from the Laken Riley Act. See, Durbin, Senators File Amendment To Protect Dreamers In The Laken Riley Act, published by the U.S. Senate Committee on the Judiciary on January 14, 2025. However, the Laken Riley Act passed the Senate without including the Durbin amendments for DACA recipients or those eligible for DACA. See, “Durbin Statement On Senate Passage Of The Laken Riley Act,” published by the U.S. Senate Committee on the Judiciary on January 20, 2025.

Currently, DACA recipients are not excluded from the Laken Riley Act. By definition, they are considered “unlawfully present” under the Act and therefore fall under the mandatory detention provisions.

Temporary Protected Status

Temporary Protected Status (“TPS”) applies to a select number of foreign nations that the Secretary of Department of Homeland Security applies to eligible citizens of these countries because “… conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.”

It is a temporary situation, and by itself is not an avenue to permanent residency. The current list of countries for TPS are as follows: Afghanistan; Burma (Myanmar); Cameroon; El Salvador; Ethiopia; Haiti; Honduras; Lebanon; Nepal; Nicaragua; Somalia; South Sudan; Sudan; Syria; Ukraine; Venezuela; and Yemen.

TPS is not excluded from the Laken Riley Act.

Criminal Defense and Mandatory Detention Under the Laken Riley Act

The Laken Riley Act became law on January 29, 2025. It amends federal immigration law to prohibit bond or other release of certain people who have been arrested for specific crimes named within the Act, while defining the elements of these crimes rests on the applicable state law.

This is mandatory detention, meaning the person has to stay in jail from arrest until their matter is resolved. They may be convicted and sentenced; they may be found innocent and released. Either way, the Laken Riley Act means they stay in jail despite being considered innocent until proven guilty for the charges they face.

Mandatory detention, obviously, is extremely harsh. Freedom is taken away for significant time periods.

From a defense standpoint, the primary consideration must be the status of the individual. Only those that are “unlawfully present” are impacted as made clear by the provisions of the Act itself.

Each case must be immediately reviewed for the legal basis for the person’s presence in the country. For instance, challenges that they have legal documentation obtained by fraud must be addressed.

Secondly, the specific crimes must be countered. The criminal charges are detailed in the Laken Riley Act, and only these charges spur mandatory detention. Are there weaknesses in the state’s case here? Have each element of the crime of theft, for instance, been proven by authenticated and admissible evidence? If not, then there are arguments to be made that mandatory detention does not apply and bond should be considered.

For more on immigration issues, read our earlier discussions in:

• Illegal Reentry into Texas: Crimes Under Federal Statute and Texas Law;

• Texas’ Senate Bill 4, the “Show Me Your Papers Law,” is Arguably Unenforceable Under Existing State Law;

• Not a U.S. Citizen and Arrested in Dallas County? How to Get Bonded Out Even with ICE Hold or Immigration Bond;

• Alien Smuggling in Texas: Federal Felonies & United States Sentencing Guidelines.

Also see:

• Why You May Need a Federal Criminal Defense Lawyer in Texas;

• How Arrests Happen: From Investigation to Arraignment, Being Charged for a Federal Crime;

• The Case of the Non-Citizen Facing Felony PPP Fraud Indictment: Innocent of All Charges.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Pre-Arrest Criminal Investigations.”