Immigration-Related Detention: Current Legislative Issues

Publication Date: April 2004

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Population and demographics

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Abstract:

The attacks of September 11, 2001, have increased interest in the authority under statute to detain noncitizens (aliens) in the United States. Under the law there is broad authority to detain aliens 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 inadmissable or deportable on criminal grounds, those who are inadmissable 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. As of March, for FY2004, on an average day, 22,812 noncitizens were in Department of Homeland Security (DHS) detention.

There are many policy issues surrounding detention of aliens. The Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA) increased the number of aliens subject to mandatory detention, and raised concerns about the justness of mandatory detention, especially as it is applied to asylum seekers arriving without proper documentation. Additionally, the increase in the number of mandatory detainees has raised concerns about the amount of detention space available to house DHS detainees. Some contend that decisions on which aliens to release from detention and when to release aliens from detention may be based on the amount of detention space, not on the merits of individual cases.

Another issue is the Attorney General's role in the detention of noncitizens. The creation of DHS moved the administration of detention of noncitizens from the Department of Justice's Immigration and Naturalization Service (INS) to DHS' Bureau of Immigration and Customs Enforcement (ICE). Nonetheless, it can be argued that the language in the Homeland Security Act of 2002 (P.L. 107-296; HSA) has left the Attorney General with concurrent authority over immigration law, including the authority to arrest, detain, and release aliens.

Bills introduced in the 108th Congress cover a range of provisions and perspectives concerning the detention of noncitizens, but none of the bills has received action. H.R. 47 would allow judicial review of bond and detention determinations, legislate the six-month post-removal-order custody determination, and allow for de novo review of post-removal-order detention. H.R. 47 and several other bills (H.R. 184, H.R. 3309, H.R. 3115, and H.R. 3918) would make changes to the mandatory detention provisions codified in IIRIRA. Other introduced bills (H.R. 1238, H.R. 2235, H.R. 2671, H.R. 3522, H.R. 3534, S. 1906, and S. 1024) would increase funding for detention space or provide reimbursement to local entities for the cost of detaining aliens. Additionally, H.R. 2671, H.R. 3522, and S. 1906 address issues of the authority to apprehend and detain aliens. This report will be updated as legislative action occurs.