AMERICAN IMMIGRATION LAWYER’S ASSOCIATION ISSUES POSITION PAPER ON MANDATORY DETENTION

Leading the growing number of groups that have officially condemned the practice of the mandatory detention of all immigrants with criminal convictions is the American Immigration Lawyers Association (AILA).  Mandatory detention was created in 1996, but was its effective date was deferred until October 1998 so the INS could develop the resources to implement the plan.  There is a great deal of debate between the INS and advocates as to the correct application of the mandatory detention provisions, a debate that is reflected in the numerous federal court opinions on the subject.  The law applies to aggravated felons, drug offenders, and anyone who served at least one year in prison.  Much of the debate surrounding the law stems from the fact that the INS applies it retroactively, detaining people who were released from prison years ago.  Once detained, the alien is not given a bond hearing at which they can present evidence in favor of their release, such as that they may have been a model community member since a youthful brush with the law.  In the time since mandatory detention went into effect, the detainee population has increased tremendously, to the point where there is little space to house anyone else. 

When proposed, supporters called mandatory detention a necessary way to ensure that people in deportation proceeding would appear for their hearings, citing statistics about how many people failed to appear when released.  Undoubtedly, some people did fail to appear, but the new rules on mandatory detention, say advocates such as AILA, go too far. 

According to AILA, mandatory detention “wastes taxpayer money and diverts much needed resources from the legitimate and necessary task of detaining those violent aliens with criminal histories.  INS must have the discretion to release immigrants who pose no risk to society and are likely to show up for their hearings.”

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