MANDATORY DETENTION
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
mandated the detention of vast categories of immigrants. It amended U.S. immigration
law to require the detention of almost all non-citizens with criminal convictions. Now,
virtually all non-citizens who are released from jail or prison on or after October 9,
1998 (and subject to removal proceedings based on criminal or national security
grounds), are ineligible for bond. These individuals include many long-time permanent
residents with U.S. citizen family members, as well as persons convicted of
non-violent crimes who may have served little or no time in jail. Asylum-seekers who
have fled to the United States without proper documents are also subject to mandatory
detention. Arriving asylum-seekers cannot be released from detention until they
establish a credible fear of persecution. In addition, persons with final orders of
removal are ineligible for bond for 90 days.
The United States has a long and proud history of safeguarding individual liberty.
Principals of fairness and due process require that detention be properly justified and
that hearings be afforded so that judges can make individualized determinations where
flight risk, dangerousness to the community, and other relevant factors can be
considered. However, under the mandatory detention provisions of the Immigration and
Nationality Act (INA), non-citizens are deprived of these basic standards of fairness,
which mandate that no person should be detained without a hearing conducted by an
independent judge.
Immigration Judges cannot release persons who can prove that they are not flight risks
or dangers to the community. Nor can an Immigration Judge release an individual in
order to allow him or her to support a U.S. citizen spouse or child. As a result,
non-citizens are separated from their families for months and even years during their
immigration proceedings. Asylum-seekers without valid entry documents, many of
whom have suffered persecution and detention at the hands of unjust regimes in their
own countries, are further traumatized by immediate detention in the United States.
As a result of mandatory detention, immigrants with criminal convictions who were
sentenced to parole and who served little or no actual jail time, often spend lengthy
periods of time in DHS custody. Because mandatory detention forces the DHS to arrest
and detain petty offenders who represent neither a threat to their communities or flight
risks, it precludes the DHS from making common-sense decisions on the best use of its
scarce detention space. This has contributed mightily to the crisis in the immigration
detention system. Since the passage of the 1996 Immigration Act, the number of
immigrants detained per day has more than doubled from 9,303 in 1996 to 22,000 in
2003.
Solutions
The mandatory detention provisions of the INA, which strip Immigration Judges of the
ability to make custody determinations based on the totality of a person's situation,
should be repealed. Immigration Judges must have the ability to make individualized
release decisions and must be truly independent adjudicators. Because Immigration
Courts are part of the Department of Justice, the Attorney General has the ability to
overturn any decision made by an Immigration Judge. To ensure that Immigration
Judges are truly independent, they should be separated from the Justice Department.
Current law must be reformed to ensure that the DHS and Immigration Judges have
discretion to release persons who are neither flight risks nor threats to society. Until
such reforms are passed, the DHS should aggressively pursue alternative forms of
detention for those subject to mandatory detention. The goals of mandatory detention,
to safeguard the community and prevent flight, could be accomplished through
supervised release programs and home detention. (1)
footnote
1. For more information on mandatory detention, see CLINIC, "The Needless Detention
of Immigrants in the United States," pp. 28-30, (August 2000), as well as backgrounder
on mandatory detention by the Migration and Refugee Services of the U.S. Conference
of Catholic Bishops, available at http://www.usccb.org/mrs/detention.htm.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
mandated the detention of vast categories of immigrants. It amended U.S. immigration
law to require the detention of almost all non-citizens with criminal convictions. Now,
virtually all non-citizens who are released from jail or prison on or after October 9,
1998 (and subject to removal proceedings based on criminal or national security
grounds), are ineligible for bond. These individuals include many long-time permanent
residents with U.S. citizen family members, as well as persons convicted of
non-violent crimes who may have served little or no time in jail. Asylum-seekers who
have fled to the United States without proper documents are also subject to mandatory
detention. Arriving asylum-seekers cannot be released from detention until they
establish a credible fear of persecution. In addition, persons with final orders of
removal are ineligible for bond for 90 days.
The United States has a long and proud history of safeguarding individual liberty.
Principals of fairness and due process require that detention be properly justified and
that hearings be afforded so that judges can make individualized determinations where
flight risk, dangerousness to the community, and other relevant factors can be
considered. However, under the mandatory detention provisions of the Immigration and
Nationality Act (INA), non-citizens are deprived of these basic standards of fairness,
which mandate that no person should be detained without a hearing conducted by an
independent judge.
Immigration Judges cannot release persons who can prove that they are not flight risks
or dangers to the community. Nor can an Immigration Judge release an individual in
order to allow him or her to support a U.S. citizen spouse or child. As a result,
non-citizens are separated from their families for months and even years during their
immigration proceedings. Asylum-seekers without valid entry documents, many of
whom have suffered persecution and detention at the hands of unjust regimes in their
own countries, are further traumatized by immediate detention in the United States.
As a result of mandatory detention, immigrants with criminal convictions who were
sentenced to parole and who served little or no actual jail time, often spend lengthy
periods of time in DHS custody. Because mandatory detention forces the DHS to arrest
and detain petty offenders who represent neither a threat to their communities or flight
risks, it precludes the DHS from making common-sense decisions on the best use of its
scarce detention space. This has contributed mightily to the crisis in the immigration
detention system. Since the passage of the 1996 Immigration Act, the number of
immigrants detained per day has more than doubled from 9,303 in 1996 to 22,000 in
2003.
Solutions
The mandatory detention provisions of the INA, which strip Immigration Judges of the
ability to make custody determinations based on the totality of a person's situation,
should be repealed. Immigration Judges must have the ability to make individualized
release decisions and must be truly independent adjudicators. Because Immigration
Courts are part of the Department of Justice, the Attorney General has the ability to
overturn any decision made by an Immigration Judge. To ensure that Immigration
Judges are truly independent, they should be separated from the Justice Department.
Current law must be reformed to ensure that the DHS and Immigration Judges have
discretion to release persons who are neither flight risks nor threats to society. Until
such reforms are passed, the DHS should aggressively pursue alternative forms of
detention for those subject to mandatory detention. The goals of mandatory detention,
to safeguard the community and prevent flight, could be accomplished through
supervised release programs and home detention. (1)
footnote
1. For more information on mandatory detention, see CLINIC, "The Needless Detention
of Immigrants in the United States," pp. 28-30, (August 2000), as well as backgrounder
on mandatory detention by the Migration and Refugee Services of the U.S. Conference
of Catholic Bishops, available at http://www.usccb.org/mrs/detention.htm.
415 Michigan Ave., NE
Suite 150
Washington, DC 20017
202.635.2556
202.635.2649 fax
media inquiries:
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(202) 635-5810
Suite 150
Washington, DC 20017
202.635.2556
202.635.2649 fax
media inquiries:
e-mail me
(202) 635-5810
Advocacy Topics
Alternatives to Detention
Asylees and Refugees
Asylum-Seekers
Barriers to Family Reunification
Board of Immigration Appeals
Border Enforcement and Immigrant
Deaths
Citizenship
Consular Identification Documents
Detention
Department of Homeland Security
Driver's License Restrictions
Immigration Processing Delays
Indefinite Detention
Legalization
Local Law Enforcement
Mandatory Detention
National Security and Immigration
Unaccompanied Minors
Undocumented Immigrants:
State/Local Initiatives
Video Conferencing
Voter Registration
Alternatives to Detention
Asylees and Refugees
Asylum-Seekers
Barriers to Family Reunification
Board of Immigration Appeals
Border Enforcement and Immigrant
Deaths
Citizenship
Consular Identification Documents
Detention
Department of Homeland Security
Driver's License Restrictions
Immigration Processing Delays
Indefinite Detention
Legalization
Local Law Enforcement
Mandatory Detention
National Security and Immigration
Unaccompanied Minors
Undocumented Immigrants:
State/Local Initiatives
Video Conferencing
Voter Registration
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