A recently released Congressional Research Service Report for Congress details current legislative issues regarding immigration-related detention.  Alison Siskin, an Analyst in Social Legislation for the Domestic Social Policy Division, compiled the report. 

The report addresses the numerous changes that have taken place with regard to noncitizen detention since the Sept. 11 attacks.  Following the attacks, the government gained broader authority under the Immigration and Nationality Act (INA) to detain aliens while awaiting a determination of whether they should be removed from the United States. Certain categories of aliens also became subject to mandatory detention by the Department of Homeland Security.  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.  If an alien is not subject to mandatory detention, he or she may be detained, paroled, or released on bond.

Certain aliens are in indefinite administrative custody because they cannot obtain travel documents to another country and the DHS refuses to release them even though they have been ordered removed from the U.S.  In 2000, the INS estimated that it had 5,000 aliens in indefinite administrative custody.  In addition, certain aliens are subject to expedited removal and detention because they arrive in the U.S. without valid documentation or with false documentation.  Under expedited removal, the decision is not subject to any further hearings, reviews, or appeals.

Some of the policy issues that surround detention of aliens include the number of aliens subject to mandatory detention, the justness of mandatory detention, the length of time in detention for aliens who have been ordered removed, and the amount of detention space available.  Statistics show a spike in detention numbers in 1997-1998, which was the first year that all the laws of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) were implemented.  IIRIRA increased the number of aliens subject to mandatory detention, creating a concern about mandatory detention as applied to asylum seekers arriving without appropriate documentation.  The numbers show a steady increase following that spike.  Some are concerned that decisions regarding when to release or detain aliens may be based on the amount of detention space instead of the merits of the individual case.  For FY2004, 22,812 noncitizens were in DHS detention on an average day.  In FY2002, INS budgeted $1,583,025 per day for 21,107 beds.  In FY2004, the DHS has budgeted $80 a day for each detainee in detention, not including the cost of transportation or deportation.

The administration and detention of noncitizens is now in the control of the DHS’ Bureau of Immigration and Customs Enforcement (ICE) following the government’s reorganization after Sept. 11.  While all authority and function of the DHS to administer and enforce immigration laws is vested with the Secretary of Homeland Security, the language of the Homeland Security Act of 2002 may have left the Attorney General with concurrent authority over immigration laws.  In Armentero v. INS, the Ninth Circuit determined that until the language was clarified, immigration habeas petitioners should name the Attorney General AND the DHS Secretary as respondents in their habeas petitions.  In addition, it can be argued that the Attorney General shares concurrent powers with the DHS Secretary authority for bond determinations for aliens and the authority to arrest, detain, and release aliens.

Members of the 108^th Congress have introduced several bills concerning the detention of noncitizens, but none of the bills have received any 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 other bills, including 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 bills would increase funding for detention space or provide reimbursement to local entities for the cost of detaining aliens.  (H.R. 1238, H.R. 2235, H.R. 2671, H.R. 3522, H.R. 3534, S. 1906, S. 1024)  Three of these bills, H.R. 2671, H.R. 3522, and S. 1906, address issues of the authority to apprehend and detain aliens.