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 109th 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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Unauthorized Aliens: Policy Options for Providing Targeted Immigration Relief

Andorra Bruno
Specialist in Immigration Policy

The 113th Congress is expected to consider comprehensive immigration reform legislation. If and when it does, a key challenge will be how to address the unauthorized alien population, estimated to number some 11 million. The unauthorized alien population is often treated as if it were monolithic, but it is, in fact, quite diverse. It includes individuals who entered the United States in different ways, for different reasons, and who have different types of connections to the United States. The circumstances of individuals who compose the unauthorized alien population affect their treatment under immigration law, especially with respect to prospects for obtaining legal status in the United States. Relevant immigration status-related factors include mode of entry into the United States, length of unlawful presence in the country, and the existence of family or employment connections.

The differences in circumstances among unauthorized aliens are particularly relevant in the context of current discussions about how to address this population. In past years, immigration proposals on unauthorized aliens often called for the establishment of broad legalization programs to enable large numbers of unauthorized aliens to become U.S. legal permanent residents (LPRs) or, conversely, included provisions aimed at promoting the departure of large numbers of unauthorized aliens from the country over time. More recently, there has been discussion of developing policies to provide targeted immigration relief to unauthorized aliens. Immigration relief is a broad term that encompasses relief from removal from the United States without the granting of a legal immigration status as well as relief in the form of a legal immigration status.

A main focus of recent discussions has been making eligibility for legal status available to certain segments of the unauthorized population. Aliens with approved immigrant visa petitions, especially those with U.S. citizen or LPR family members, seem to be of particular interest. Selected segments of the unauthorized alien population without an affirmative pathway to legal status, such as students who entered the United States as children and beneficiaries of long-term humanitarian relief, have also been the subject of policy proposals.

Policies to provide targeted relief to unauthorized aliens could be legislative or administrative. Legislative options could include amending existing statutory provisions to make it easier for certain unauthorized aliens to obtain LPR status. They also could include establishing statutory mechanisms to enable certain subgroups of unauthorized aliens to become LPRs who may not have pathways to do so under current law, as in the case of the Development, Relief, and Education for Alien Minors (DREAM) Act.

Unauthorized aliens also could receive temporary relief from removal through administrative action. The Department of Homeland Security’s Deferred Action for Childhood Arrivals (DACA) program, which was established in the absence of congressional action on DREAM Act legislation and includes similar eligibility criteria, provides a recent example. Such administrative actions can provide temporary relief, but, unlike legislative enactments, cannot provide beneficiaries with a legal immigration status.


Date of Report: February 13, 2013
Number of Pages: 24
Order Number: R42958
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Immigration Provisions of the Violence Against Women Act (VAWA)

William A. Kandel
Analyst in Immigration Policy

The Immigration and Nationality Act (INA) includes provisions to assist foreign nationals who have been victims of domestic abuse. These provisions, initially enacted by Congress with the Immigration Act of 1990 and the Violence Against Women Act (VAWA) of 1994, afford benefits to abused foreign nationals and allow them to self-petition for lawful permanent resident (LPR) status independently of the U.S. citizen or LPR relatives who originally sponsored them. Congress reauthorized VAWA with the Battered Immigrant Women Protection Act of 2000, which also created the U visa for foreign national victims of a range of crimes—including domestic abuse—who assisted law enforcement. A second reauthorization in 2005 added protections and expanded eligibility for abused foreign nationals.

Authorization for appropriations for the programs under VAWA expired in 2011. The 112th Congress passed two bills, S. 1925 and H.R. 4970, reauthorizing most VAWA programs, among other provisions. Despite containing some related immigration provisions, H.R. 4970 differed in substantive ways from S. 1925. It did not extend protections to new groups to the same extent as S. 1925 and included more restrictions with the purpose of curtailing immigration fraud. Most notably, it maintained the annual number of U visas at its current limit of 10,000, in contrast with S. 1925 which would have increased the number to 15,000. To fund the increase in U visas, S. 1925 included a revenue provision that created a “blue slip” procedural complication. Negotiations stalled between the chambers, and neither bill was enacted into law.

In the 113th Congress, S. 47 and H.R. 11 have been introduced. S. 47 was placed on the Senate Legislative Calendar and H.R. 11 was referred to committee. The VAWA-related immigration provisions, similar in both bills, are comparable to those found in S. 1925 from the previous Congress. However, in contrast to that bill, S. 47 and H.R. 11 would maintain the annual number of U visas at 10,000, thereby eliminating the associated “blue slip” procedural complication.

Two potential concerns for Congress have been emphasized regarding the immigration provisions of VAWA. The first is whether the proposed VAWA reauthorization provides sufficient relief to foreign nationals abused by their U.S. citizen or LPR sponsoring relatives. Advocates for battered foreign nationals suggest that additional provisions are needed to assist this population in obtaining legal and economic footing independently of their original sponsors for legal immigrant status. Critics of expanding immigration, however, question the extent to which these provisions may increase the number of legal immigrants, thereby incurring costs to U.S. taxpayers.

The second related concern is the degree to which VAWA provisions unintentionally facilitate immigration fraud. This may occur through what some perceive as relatively lenient standards of evidence to demonstrate abuse; as the unintended result of processing procedures between the District Offices of the U.S. Citizenship and Immigration Services (USCIS), which adjudicate most immigration applications, and the USCIS Vermont Service Center, which adjudicates VAWA petitions; or as an unintended consequence of the structure of current law. While some suggest that VAWA provides opportunities for dishonest and enterprising foreign nationals to circumvent U.S. immigration laws, empirical evidence offers minimal support for these assertions.


Date of Report: February 1, 2013
Number of Pages: 38
Order Number: R42477
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Prosecutorial Discretion in Immigration Enforcement: Legal Issues

Kate M. Manuel
Legislative Attorney

Todd Garvey
Legislative Attorney

The term prosecutorial discretion is commonly used to describe the wide latitude that prosecutors have in determining when, whom, how, and even whether to prosecute apparent violations of the law. The Immigration and Naturalization Service (INS) and, later, the Department of Homeland Security (DHS) and its components have historically described themselves as exercising prosecutorial discretion in immigration enforcement. Some commentators have recently challenged this characterization on the grounds that DHS enforces primarily civil violations, and some of its components cannot be said to engage in “law enforcement,” as that term is conventionally understood. However, even agencies that do not prosecute or engage in law enforcement have been recognized as having discretion (sometimes referred to as enforcement discretion) in determining whether to enforce particular violations.

Federal regulation of immigration is commonly said to arise from various powers enumerated in the Constitution (e.g., naturalization, commerce), as well as the federal government’s inherent power to control and conduct foreign relations. Some, although not all, of these powers belong exclusively to Congress, and courts have sometimes described Congress as having “plenary power” over immigration. However, few courts or commentators have addressed the separation of powers between Congress and the President in the field of immigration, and the executive has sometimes been said to share plenary power over immigration with Congress as one of the “political branches.” Moreover, the authority to exercise prosecutorial or enforcement discretion has traditionally been understood to arise from the Constitution, not from any congressional delegation of power.

Certain decisions have been widely recognized as within the prosecutorial discretion of immigration officers. These include deciding whether to initiate removal proceedings and what charges to lodge against the respondent; canceling a Notice to Appear or other charging document before jurisdiction vests with an immigration judge; granting deferred action or extended voluntary departure to an alien otherwise subject to removal (deportation); appealing particular decisions or orders; and imposing fines for particular offenses, among other things. Enforcement priorities and resources, as well as humanitarian concerns, have typically played a role in determining whether to exercise discretion in individual cases. For example, the George W. Bush Administration temporarily suspended employer sanctions in areas affected by Hurricane Katrina, and the Obama Administration recently began granting deferred action to certain unauthorized aliens brought to the United States as children.

While the executive branch’s prosecutorial or enforcement discretion is broad, it is not unfettered, and particular exercises of discretion could potentially be checked by the Constitution, statute, or agency directives. Selective prosecution, or prosecution based on race, religion, or the exercise of constitutional rights, is prohibited, although aliens generally cannot assert selective prosecution as a defense to removal. A policy of non-enforcement that amounts to an abdication of an agency’s statutory responsibilities could potentially be said to violate the Take Care Clause. However, standing to challenge alleged violations of the Take Care Clause may be limited, and no court appears to have invalidated a policy of non-enforcement founded upon prosecutorial discretion on the grounds that the policy violated the Take Care Clause. Non-enforcement of particular laws could also potentially be challenged under the Administrative Procedure Act if a statute provides specific guidelines for the agency to follow in exercising its enforcement powers. In addition, an agency could potentially be found to have constrained its own discretion, as some courts found that the INS had done in the 1970s with its operating instruction on deferred action.


Date of Report: January 17, 2013
Number of Pages: 30
Order Number: R42924
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