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IWS Documented News Service

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Institute for Workplace Studies----------------- Professor Samuel B. Bacharach

School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies

Cornell University

16 East 34th Street, 4th floor---------------------- Stuart Basefsky

New York, NY 10016 -------------------------------Director, IWS News Bureau

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Congressional Research Service (CRS)

 

Immigration-Related Detention: Current Legislative Issues

Alison Siskin, Specialist in Immigration Policy

January 12, 2012

http://www.fas.org/sgp/crs/homesec/RL32369.pdf

[full-text, 20 pages]

 

Summary

As Congress considers addressing some of the problems in the nation’s immigration system, the

detention of noncitizens in the United States may be an issue as Congress may chose to reevaluate

detention priorities (i.e., who should be detained) and resources. 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 December 13, 2011, on an average day in FY2012, 32,953 noncitizens were in

Department of Homeland Security (DHS) custody.

 

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, 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.

 

The 108th Congress passed P.L. 108-458, the Intelligence Reform and Terrorism Prevention Act of

2004, directing the Secretary of DHS to increase the amount of detention bed space by not less

than 8,000 beds for each year, FY2006 through FY2010; a total of 40,000 beds. Although

Congress increased the bed space between FY2006 and FY2010, the number of beds only

increased by approximately 12,000.

 

One bill related to immigration detention has received Congressional action in the 112th Congress.

H.R. 1932 was placed on the Union Calendar on October 17, 2011. After a removal order has

been issued against an alien, the law provides that the alien subject to a final removal order 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 ruled absent clear guidance

from Congress. H.R. 1932 as reported by the House Judiciary Committee, would amend 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.

 

In addition, in the 112th Congress, other bills have been introduced covering a range of provisions

and perspectives concerning the detention of noncitizens. Several bills—including H.R. 100 and

H.R. 1274—would mandate that DHS increase the amount of detention space. In addition, other

bills (e.g., H.R. 933 and S. 1258) would mandate the propagation of regulations concerning

detainee care, and expand the alternatives to detention program. Other proposed legislation, such

as H.R. 713, would make changes to the mandatory detention provisions, lessening the categories

of aliens required to be detained.

 

Contents

Introduction...................................................................................................................................... 1

Overview of Noncitizen Detention.................................................................................................. 2

Changes in Authorities with the Creation of the Department of Homeland Security............... 2

Statutory Authority for Detention.............................................................................................. 3

Local Law Enforcement ..................................................................................................... 5

Mandatory Detention................................................................................................................. 5

Post-removal Order Detention ............................................................................................ 6

Expedited Removal and Detention...................................................................................... 8

Release on Parole and Bond ...................................................................................................... 9

Rights of the Detained............................................................................................................. 10

Detention Conditions......................................................................................................... 11

Detention Statistics ........................................................................................................................ 12

Detention Population............................................................................................................... 12

Detention Space and Cost........................................................................................................ 13

Appropriations for Detention Operations.......................................................................... 14

Alternatives to Detention .................................................................................................. 15

Legislation in the 112th Congress................................................................................................... 16

Figures

Figure 1. Daily Detention Population and Funded Bedspace, FY2001-FY2012........................... 13

Tables

Table 1. Appropriations for ICE Enforcement and Removal Operations (ERO) and ERO Custody Operations: FY2008-FY2012.................... 15

 

 

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