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Wednesday, February 27, 2013

Immigration-Related Detention

Alison Siskin
Specialist in Immigration Policy

The 113th Congress may consider a comprehensive reform of the nation’s immigration system (CIR), and during such discussions, the detention of noncitizens in the United States might be an issue. Congress may choose to reevaluate detention priorities (i.e., who should be detained, when they should be detained) and detention resources. Under the law, there is broad authority to detain foreign nationals (aliens/noncitizens) while awaiting a determination of whether the noncitizen should be removed from the United States. The law also mandates that certain categories of aliens are subject to mandatory detention (i.e., the aliens must be detained). Aliens subject to mandatory detention include those arriving without documentation or with fraudulent documentation, those who are inadmissible or deportable on criminal grounds, those who are inadmissible or deportable on national security grounds, those certified as terrorist suspects, and those who have final orders of deportation. Aliens not subject to mandatory detention may be detained, paroled, or released on bond. The priorities for detention of these aliens are specified in statute and regulations. For example, the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA) increased the categories of aliens subject to mandatory detention. This increase has raised concerns about the justness of mandatory detention, especially as it is applied to asylum seekers arriving without proper documentation.

As of December 22, 2012, on an average day in FY2013, there were 34,696 noncitizens in Department of Homeland Security (DHS) custody. The amount of detention space is almost exclusively controlled by Congress through appropriations, and Congress has been active in providing oversight of detention space allocations and detention conditions. Since FY2002, Congress has increased the number of funded detention beds from 21,109 beds to 34,000 beds. As DHS increases its ability to identify aliens who are subject to removal from local jails in more remote locations, the nationwide allocation of detention space may become an issue.

Furthermore, the detention policy for aliens who have received a final order of removal may also be a congressional concern. After a final removal order has been issued against an alien, the law provides that the alien be removed within 90 days, except as otherwise provided in the statute. Certain aliens subject to a removal order “may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision.” This provision had been interpreted as permitting indefinite detention where removal was not reasonably foreseeable, but in 2001, the U.S. Supreme Court in Zadvydas v. Davis, interpreted it as only permitting detention for up to six months where removal was not reasonably foreseeable. Nonetheless, the U.S. Supreme Court stated that its ruling was made “absent clear guidance from Congress” (i.e., that it was not clear what congressional intent was related to detaining aliens who could not be removed within 90 days). Comprehensive immigration reform (CIR) bills in the 109
th and 110th Congress would have modified and codified the regulations regarding the detention of those with final orders of removal. In the 112th Congress, H.R. 1932, as reported by the House Judiciary Committee would have amended the Immigration and Nationality Act to allow DHS to indefinitely detain, subject to six-month reviews, aliens under orders of removal who could not be removed if certain conditions were met.

Date of Report: January 18, 2013
Number of Pages: 21
Order Number: RL32369
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