Order Code RL32369
CRS Report for Congress
Received through the CRS Web
Immigration-Related Detention:
Current Legislative Issues
April 28, 2004
Alison Siskin
Analyst in Social Legislation
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

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Immigration-Related Detention:
Current Legislative Issues
Summary
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.

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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Mandatory Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Indefinite Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Expedited Removal and Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Release on Parole and Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Rights of the Detained . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Detention Statistics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Detention Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Detention Space and Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Alternatives to Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Legislation in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Increase Discretionary Flexibility and Reviews . . . . . . . . . . . . . . . . . . . . . . 14
Detention Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Local Law Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
New Detention Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
List of Figures
Figure 1. Average Daily Population in Detention: FY1994-FY2004 . . . . . . . . 12

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Immigration Related Detention:
Current Legislative Issues
Introduction
The attacks of September 11, 2001, have increased interest in the authority
under the Immigration and Nationality Act (INA) to detain noncitizens (aliens)1 in
the United States. The law provides broad authority to detain aliens while awaiting
a determination of whether they should be removed from the United States, and
mandates that certain categories of aliens are subject to mandatory detention (i.e., the
aliens must be detained) by the Department of Homeland Security (DHS). Aliens not
subject to mandatory detention may be detained, paroled, or released on bond.
“Enemy combatants” at the Guantanamo U.S. military base in Cuba are not under the
authority of DHS, nor are noncitizens incarcerated in federal, state, and local
penitentiaries for criminal acts.
Any alien can be detained while DHS determines whether the alien should be
removed from the United States. The large majority of the detained aliens have
committed a crime while in the United States, have served their criminal sentence,
and are detained while undergoing deportation proceedings. Other detained aliens
include those who arrive at a port-of-entry without proper documentation (e.g.,
fraudulent or invalid visas, or no documentation), but most of these aliens are quickly
returned to their country of origin through a process known as expedited removal.2
The majority of aliens arriving without proper documentation who claim asylum are
held until their “credible fear hearing,” but some asylum seekers are held until their
asylum claims have been adjudicated.
There are many policy issues surrounding detention of aliens including concerns
about the number of aliens subject to mandatory detention, and the justness of
mandatory detention, especially as it is applied to asylum seekers arriving without
proper documentation. Some have raised concerns about the length of time in
detention for aliens who have been ordered removed. Additionally, issues have been
raised about the amount of detention space available to house DHS detainees.
Another area of uncertainty is the Attorney General’s role in the detention of
noncitizens, since the creation of DHS.
1 An alien is “any person not a citizen or national of the United States” and is synonymous
with noncitizen.
2 Karen Musalo, et al., The Expedited Removal Study Releases Its Third Report, 77
Interpreted Releases 1189, 1191 (Aug. 21, 2000).

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Overview of Noncitizen Detention
Changes in Authorities with the Creation of the Department
of Homeland Security
The INA provides the Attorney General with broad authority to detain aliens
while awaiting a determination of whether they should be removed from the United
States,3 but the creation of DHS moved the administration of detention of noncitizens
from the Department of Justice’s Immigration and Naturalization Service (INS) to
DHS’ Under Secretary of Border and Transportation Security.4 While current
regulations vest all authorities and functions of the DHS to administer and enforce
the immigration laws with the Secretary of Homeland Security (hereafter the
Secretary) or his delegate,5 it can be argued that the language in the Homeland
Security Act of 2002 (HSA)6 has left the Attorney General with concurrent authority
over immigration law.7 The Ninth Circuit in Armentero v. Immigration and
Naturalization Service, for example, appeared to struggle with determining who
should be the correct respondent in a habeas petition filed by an INS detainee. The
Ninth Circuit stated:
Because the Homeland Security Act transfers most immigration law enforcement
responsibilities from the INS, a sub-division of the Department of Justice, to the
BTS [Directorate of Border and Transportation Security], a sub-division of the
Department of Homeland Security, the extent of the Attorney General’s power
to direct the detention of aliens is unclear.8
The court further concluded that “[u]ntil the exact parameters of the Attorney
General’s power to detain aliens under the new Homeland Security scheme are
decisively delineated, we believe it makes sense for immigration habeas petitioners
to name the Attorney General in addition to naming the DHS Secretary as
respondents in their habeas petitions.”
In addition, both DOJ, through the Executive Office of Immigration Review
(EOIR), and DHS have authority for determining bond for aliens. Officials within
DHS also make bond determinations that may or may not subsequently come before
3 INA §236(a).
4 P.L. 107-296 §441.
5 8 C.F.R. §2.1. (“The Secretary, in his discretion, may delegate any such authority or
function to any official, officer, or employee of the DHS or any employee of the U.S. to the
extent authorized by law.”) This regulation was authorized, in part, by §103 of the INA,
which was amended by the Homeland Security Act of 2002 (P.L. 107-296) to charge the
Secretary of DHS with the administration and enforcement of the INA.
6 P.L. 107-296, signed into law on Nov. 25, 2002.
7 David A. Martin, “Immigration Policy and the Homeland Security Act Reorganization: An
Early Agenda for Practical Improvements,” Migration Policy Institute Insight, vol. 1, Apr.
2003.
8 Armentero v. Immigration and Naturalization Service, 340 F.3d 1058, 1072 (9th Cir. 2003).

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EOIR. The Board of Immigration Appeals (BIA), the appellate body within EOIR,
hears appeals from matters decided by immigration judges. The BIA has jurisdiction
to consider appeals of various decisions now made by immigration officials in DHS,
including the granting of bond.
The Attorney General has final say in matters of immigration law that come
before EOIR.9 For example, on April 17, 2003, the Attorney General released a
decision10 that instructs immigration judges to consider “national security interests
implicated by the encouragement of further unlawful mass migrations ...” in making
bond determinations for unauthorized migrants who arrive in “the United States by
sea seeking to evade inspection.” In the decision, the Attorney General states that he
retains the authority to detain or authorize bond for aliens, but the authority is
“shared” with the Secretary since DHS’ officials make the initial determination
whether an alien will remain in custody during removal proceedings.11
Statutory Authority for Detention
The INA gives the Attorney General the authority to issue a warrant to arrest and
detain any alien in the United States while awaiting a determination of whether the
alien should be removed from the United States.12 As a result of the HSA, the daily
responsibility for detaining aliens resides with the Under Secretary of Border and
Transportation Security whose authority is exercised by the Bureau of Immigration
and Customs Enforcement (ICE),13 but under law the Attorney General may still
retain the authority to arrest and detain aliens. The Illegal Immigrant Reform and
Immigrant Responsibility Act of 1996 (IIRIRA)14 amended the INA, effectively
specifying levels of detention priority and classes of aliens subjected to mandatory
detention. Mandatory detention is required for certain criminal and terrorist aliens
who are removable, pending a final decision on whether the alien is to be removed.
No bail is available and only a hearing can determine whether the alien qualifies as
a criminal or terrorist alien. Aliens not subjected to mandatory detention can be
9 For more information see CRS Report RL31997, Authority to Enforce the Immigration and
Nationality Act (INA) in the Wake of the Homeland Security Act: Legal Issues, by Stephen
R. Viña.
10 23 I&N Dec. 572 (A.G. 2003).
11 See INA §103(a), as amended; 8 C.F.R. §§236.1(c), 236.1(d), 287.3(d). For more
information on this decision See CRS Congressional Distribution Memorandum, Policy
Implications of Department of Justice Ruling on Bond Determinations for Unauthorized
Aliens in Detention, by Alison Siskin. Available from the author.
12 INA §236(a).
13 The two main parts of the Directorate of Border and Transportation Security in DHS are
the Bureau of Immigration and Customs Enforcement and the Bureau of Customs and
Border Protection (CBP).
14 Subtitle C of the Omnibus Consolidated Appropriations Act, 1997, P.L. 104-208, signed
into law Sept. 30, 1996.

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paroled,15 released on bond,16 or continue to be detained. Decisions on parole made
by the Secretary and bond decisions made by the Attorney General are not subject to
review.
In October 1998, the former INS issued a memorandum establishing detention
guidelines consistent with the changes made by IIRIRA.17 According to the
guidelines, detainees are assigned to one of four detention categories: (1) required;
(2) high priority; (3) medium priority; and (4) lower priority.18 Aliens in required
detention must be detained19 while aliens in the other categories may be detained
depending on detention space and the facts of the case. Higher priority aliens should
be detained before aliens of lower priority.20
Additionally, the U.S.A. Patriot Act21 amended the INA to create a new section
(236A) which requires the detention of an alien whom the Attorney General certifies
as someone who the Attorney General has “reasonable grounds” to believe is
involved in terrorist activities or in any other activity that endangers national security.
The Attorney General must initiate removal proceedings or bring criminal charges
within seven days of arresting the alien or release the alien. An alien who is detained
solely as a certified terrorist, who has not been removed, and who is unlikely to be
removed in the foreseeable future may be detained for periods of up to six months
15 “Parole” is a term in immigration law which means that the alien has been granted
temporary permission to enter and be present in the United States. Parole does not
constitute formal admission to the United States and parolees are required to leave when the
parole expires, or if eligible, to be admitted in a lawful status. Section 402 of the HSA
states: “The Secretary [of the Department of Homeland Security], acting through the Under
Secretary for Border and Transportation Security, shall be responsible for the following: ...
(4) Establishing and administering rules, ... governing the granting of visas or other forms
of permission, including parole, to enter the United States to individuals who are not a
citizen or an alien lawfully admitted for permanent residence in the United States.”
16 The minimum bond amount is $1,500.
17 Memorandum from Michael Pearson, INS Executive Associate Commissioner, Office of
Field Operations, to Regional Directors, Detention Guidelines Effective October 9, 1998.
18 High priority are aliens removable on security related or criminal grounds who are not
subject to required detention, and aliens who are a danger to the community or a flight risk.
Medium priority detainees are inadmissible, non-criminal arriving aliens not in expedited
removal and not subject to mandatory detention. Low priority detainees are other removable
aliens not subject to required detention, and aliens who have committed fraud while
applying for immigration benefits with DHS.
19 There are some very limited exceptions to mandatory detention. An alien subject to
mandatory detention may be released only if release is necessary to protect an alien who is
a government witness in a major criminal investigation, or a close family member or
associate of that alien, and the alien does not pose a danger to the public or a flight risk.
20 Michael A. Pearson, INS Detention Guidelines, Oct. 7, 1998. Reprinted in Bender’s
Immigration Bulletin, vol. 3, no. 21, Nov. 1, 1998, p. 1111. (Hereafter cited as Pearson, INS
Detention Guidelines.)
21 P.L. 107-56 signed into law on Oct. 26, 2001.

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only if his release would pose a danger to national security or public safety. The
Attorney General must review the terrorist certification every six months.22
Under the INA, the Attorney General also has the authority to arrest and detain
aliens without a warrant if he has “reason to believe that the alien ... is in the United
States in violation of any [immigration] law and is likely to escape before a warrant
can be obtained.”23 Functionally, DHS is responsible for arresting and detaining
aliens. If an alien is arrested without a warrant, a decision must be made within 48
hours to detain or release the alien. Aliens paroled or released on bond may be
rearrested at any time. On September 20, 2001, the Department of Justice (DOJ)
issued an interim regulation to provide more flexibility in detaining aliens prior to
determining whether to charge or release them. The interim regulation extended the
period that an alien may be detained, pending the determination of whether to arrest,
from 24 hours to 48 hours or — in the event of emergency or extraordinary
circumstances — within an “additional reasonable period of time.” The regulation
took effect on September 17, 2001.24
Additionally, 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.25 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 ....”26 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,27 interpreted it as only
permitting detention for up to six months where removal was not reasonably
foreseeable.
22 Habeas corpus proceedings are the avenue for judicial review of certification and
detention.
23 INA §287(a)(2).
24 Federal Register, Sept. 20, 2001, vol. 66, no. 184, pp. 48334-48335; 8 C.F.R. Part 287.
Of the people taken into INS custody during the investigation of the Sept. 11 attacks, in 17%
of the cases INS took more than seven days to file charges. In 2% of the cases, INS filed
charges after more than 30 days. Jim Edwards, “Data Show Shoddy Due Process for Post-
Sept. 11 Immigration Detainees,” New Jersey Law Journal, Feb. 6, 2002.
25 INA §241(a)(1)(A).
26 INA §241(a)(6).
27 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001). For a full discussion of
Zadvydas v. Davis, see CRS Report RL31606, Detention of Noncitizens in the United States,
by Alison M. Siskin and Margaret Mikyung Lee.

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Local Law Enforcement.28 The INA contains both criminal and civil
violations. Historically, the authority for state and local law enforcement officials to
enforce immigration law has been construed to be limited to the criminal provisions29
of the INA. The enforcement of the civil provisions,30 which includes apprehension
and removal of deportable aliens, has strictly been viewed as a federal responsibility,
with states playing an incidental supporting role.
Although there is debate with respect to state and local law enforcement
officers’ authority to enforce civil immigration law, it is permissible for state and
local law enforcement officers to inquire into the status of an immigrant during the
course of their normal duties in enforcing state and local law. For example, when
state or local officers question the immigration status of someone they have detained
for a state or local violation, they may contact an ICE agent at the Law Enforcement
Support Center (LESC).31 The federal agent may then place a detainer on the
suspect, requesting the state official to keep the suspect in custody until a
determination can be made as to the suspect’s immigration status. However, the
continued detention of such a suspect beyond the needs of local law enforcement, and
solely designed to aid in enforcement of federal immigration laws, may be
unlawful.32
28 For more information on the role of state and local law enforcement, see CRS Report
RL32270, Enforcing Immigration Law: The Role of State and Local Law Enforcement, by
Lisa M. Seghetti, Stephen R. Viña, and Karma Ester. (Hereafter cited as RL32270,
Enforcing Immigration Law.)
29 Examples of criminal violations include alien smuggling, harboring of aliens, and
trafficking in people, which are prosecuted in federal courts.
30 Examples of civil violations include being present in the United States without a valid
immigration status, or working without employment authorization which may lead to
removal through administrative proceedings through the Executive Office of Immigration
Review.
31 Under current practice in most jurisdictions, state and local law enforcement officials can
inquire into an alien’s immigration status if the alien is being questioned by an officer as a
result of a criminal investigation or other related matters (i.e., traffic violation).
32 Charles Gordon, et. al, Immigration Law and Procedure, §72.02[2][b], at 72-27 (Matthew
Bender & Co., Inc. 2000) (citing Abel v. United States, 362 U.S. 217 (1960); United States
v. Cruz, 559 F.2d 30 (5th Cir. 1977)).

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Mandatory Detention
The law requires the detention of:
! criminal aliens;33
! national security risks;34
! asylum seekers, without proper documentation, until they can
demonstrate a “credible fear of persecution”;
! arriving aliens35 subject to expedited removal (see below);
! arriving aliens who appear inadmissable for other than document
related reasons; and
! persons under final orders of removal who have committed
aggravated felonies, are terrorist aliens, or have been illegally
present in the country.36
The USAPATRIOT Act added a new section (§236A) to the INA which
provides for the mandatory pre-removal-order detention of an alien who is certified
by the Attorney General as a terrorist suspect. It can be argued that the Attorney
General and the Secretary both have the discretion to detain any alien who is in
removal proceedings, and must detain all aliens who are charged as terrorists, and
almost all aliens charged as criminals upon their release from criminal incarceration
whether they are released on probation or parole.37
Indefinite Detention. There are certain aliens in indefinite administrative
custody who have been ordered removed from the United States, but are detained
because they cannot obtain travel documents to another country and DHS refuses to
33 Criminal aliens include those who are inadmissable on criminal-related grounds as well
as those who are deportable due to the commission of certain criminal offences while in the
United States. An alien is inadmissable for: (1) crimes of moral turpitude; (2) controlled
substance violations; (3) multiple criminal convictions with aggregate sentences of five
years or more; (4) drug trafficking; (5) prostitution and commercialized vice; and (6) receipt
of immunity from prosecution for serious criminal offenses (INA §212(a)). An alien is
deportable for the following offenses: (1) crimes of moral turpitude; (2) aggravated
felonies; (3) high speed flight; (4) controlled substance violations; (5) certain firearm
offenses; and (6) crimes of domestic violence, stalking, and child abuse (INA §237(a)(2)).
Any alien who is found in the United States who is inadmissable is deportable. Only the
following groups of criminal aliens who are inadmissable or deportable are not subject to
mandatory detention: (1) aliens convicted of a single crime of moral turpitude who were
sentenced to less than one year; (2) aliens convicted of high speed flight; and (3) aliens
convicted of crimes of domestic violence, stalking, and child abuse or neglect.
34 Any alien who is inadmissable or deportable for terrorist activity must be detained (INA
§212(a)(3)(B) and §237(a)(4)(B)).
35 The regulations define an arriving alien as an applicant for “admission to or transit
through the United States.” 8 C.F.R. §1.1(q).
36 Prior to IIRIRA, aliens convicted of aggregated felonies who could not be removed could
be released.
37 INA §236(c)(1).

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release them. These detainees are often referred to as “lifers” or “unremovables.”38
Many of these detainees have criminal records, but some simply lack immigration
status and the ability to return to their country of origin. Some detainees have been
in immigration detention for a longer time period than their criminal incarceration.
In 2000, INS estimated that it had 5,000 aliens in indefinite administrative custody.39
In a 5-4 decision in Zadvydas v. Davis (2001),40 the U.S. Supreme Court held
that a statute permitting indefinite detention would raise serious constitutional
problems because the Due Process Clause of the Fifth Amendment prohibits
depriving any person, including aliens, of liberty without due process of law.
Therefore, in keeping with principles of statutory construction and the absence of
clear congressional intent for indefinite detention, the Court read an implicit
limitation into the post-removal detention statute, such that detention is limited to a
period “reasonably necessary” to achieve an alien’s removal. The Supreme Court
established six months after the initial 90-day removal period expires as the
presumptively reasonable period. After this period, once an alien shows that there
is good reason to believe that “there is no significant likelihood of removal in the
reasonably foreseeable future,” the government must rebut that showing with
sufficient evidence. The Court emphasized that its holding does not mean that all
aliens must be released in six months and that an alien may be held until it has been
determined that “there is no significant likelihood of removal in the reasonably
foreseeable future.” The Court suggested that special arguments could be made for
a statutory scheme of preventive detention for terrorists or other aliens in special
circumstances and for heightened judicial deference for executive and legislative
branch decisions regarding national security matters.
In response to this decision, the Attorney General issued regulations governing
the review of post-removal order detention cases for a determination of foreseeability
of removal. The Attorney General issued regulations, effective November 14, 2001,
38 Most indefinite detainees are from countries that lack normal diplomatic relations with
the United States (e.g., Cuba, Iran, or North Korea). (The majority of “lifers” are Cubans
who came during the Mariel boatlift. The Mariel boatlift was an influx of asylum seekers
during a seven-month period in 1980 when approximately 125,000 Cubans and 25,000
Haitians arrived by boat to South Florida. About 10% of the Mariel Cubans had histories
of mental illness or violent crime.) Other indefinite detainees are stateless people (e.g.,
Palestinians and persons from the former Soviet Union who do not meet the citizenship
requirements for any of the newly independent states) or persons whose nationality cannot
be determined. Other indefinite detainees are from countries that refuse to accept the return
of their nationals (e.g., Vietnam, Laos, Cambodia, and the People’s Republic of China) or
from countries experiencing immense upheaval. Others may be indefinitely detained
because the alien has strong ties to the United States, and only attenuated connections to
their country of origin. For example, an alien may be brought by his parents to the United
States as a two-year old, and live in the United States for 40 years without naturalizing. If
the person commits a crime and is removable, his birth country may refuse to take him. See
U.S. House of Representatives, Committee on Appropriations, A report on the Department
of Justice’s management and operation of programs dealing with the detention, medical care,
and outplacement of Mariel Cubans. Surveys and Investigations Staff, Apr. 1991.
39 Conversation with Tim Huagh, INS Congressional Affairs.
40 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001).

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concerning the continued detention of aliens subject to final orders of removal that
are consistent with the Zadvydas decision.41 Subsequently, Chief Immigration Judge
Michael Creppy issued a memorandum on the Immigration Court’s policy regarding
these regulations. The regulations and the memorandum establish four categories of
aliens whose removal from the United States is not foreseeable, but whom the
Attorney General may continue to detain. These “special circumstances” include:
! aliens with a highly contagious disease that poses a threat to public
safety;
! aliens whose release would cause serious adverse foreign policy
consequences;
! aliens detained for security or terrorism reasons; and
! aliens determined to be specifically dangerous.
Of these four categories, only the fourth requires the involvement of the Immigration
Court; the other three remain under DHS discretion.42
Expedited Removal and Detention. Aliens who arrive in the United States
without valid documentation or with false documentation are subject to a process
known as “expedited removal,” under which the alien is ordered removed from the
United States, and the removal decision is not subject to any further hearings,
reviews, or appeals.43 Most aliens subject to this process face continuous detention.
Aliens subject to expedited removal must be detained until they are removed and may
only be released due to medical emergency or if necessary for law enforcement
purposes. If the arriving alien expresses a fear of persecution or an intent to apply
for asylum, the alien is placed in detention until a “credible fear” interview can be
held. If the alien is found to have a credible fear, he may be paroled into the United
States. If the credible fear is unsubstantiated, the alien is detained until the alien is
removed from the United States.44
Asylum Seekers. As discussed earlier, the Illegal Immigrant Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) mandated that aliens who arrive
without proper documentation and claim asylum be detained prior to their “credible
fear” hearing. Prior to IIRIRA, most aliens arriving without proper documentation
who applied for asylum were released on their own recognizance into the United
States (and given work authorization), a practice which enabled inadmissable aliens
falsely claiming persecution to enter into the country. Most of the fraudulent claims
were made by people attempting to come here for economic or family reasons,
41 66 Federal Register, p. 56967, 2001; 8 C.F.R. at §§241.4, 241.13 and 241.14.
42 Michael Creppy, “Operating Policies and Procedures Memorandum,” Nov. 19, 2001.
Reprinted in Interpreted Releases Jan. 14, 2002, pp. 74-83.
43 INA §235(b)(1)(A)(i).
44 Under the INA, expedited removal can also be applied to aliens who enter the United
States without inspection (i.e., cross the border without being inspected by an immigration
inspector) and cannot establish that they have been physically present in the United States
for more than two years, but it has yet to be applied to those who entered without inspection.
INA §235(b)(1)(A)(iii).

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CRS-10
illegally rather than through legal immigration channels.45 False asylum claims
utilize limited resources, causing those with legitimate claims to have to wait longer
to have their cases processed. Thus, many argued that the only way to deter
fraudulent asylum claims was to detain asylum seekers rather than releasing them on
their own recognizance. Indeed some claim that the practice of detaining asylum
seekers has reportedly helped reduced the number of fraudulent asylum claims.46
However, some contend that the policy of detaining all asylum seekers is too
harsh. They argue that there is a need to inhibit fraudulent asylum claims, but
mandatory detention of asylum seekers causes more problems than it solves. The
position of the United Nations High Commission on Refugees is that detention of
asylum seekers is “inherently undesirable.”47 Detention may be psychologically
damaging to an already fragile population such as those who are escaping from
imprisonment and torture in their countries. Often the asylum seeker does not
understand why they are being detained. Additionally, asylum seekers are often
detained with criminal aliens. Some contend that ICE should develop alternatives
to detention (e.g., electronic monitoring) for asylum seekers.
Release on Parole and Bond
The Secretary has the authority to parole detained aliens who are not subject to
mandatory detention. Most arriving aliens are not eligible for parole. Parole is
permitted for arriving aliens with serious medical conditions, pregnant women,
juvenile aliens who will be witnesses, and “aliens whose continued detention is not
in the public interest.”48 In general, parole is available on a “case-by-case basis for
urgent humanitarian reasons or significant public benefit.”49
Aliens not subject to mandatory detention may also be released on bonds of a
minimum of $1,500.50 To be released on bond, the alien must prove that he is not a
threat to people or property, and will appear at all future immigration proceedings.
45 CRS Issue Brief IB93095, Immigration: Illegal Entry and Asylum Issues, coordinated by
Ruth Ellen Wasem. This report is archived and available from the author.
46 David A. Martin, The 1995 Asylum Reforms: A Historical and Global Perspective,
(Washington, D.C.: Center for Immigration Studies, May 2000). Available at
[http://www.cis.org/articles/2000/back500.html].
47 Office of the of the United Nations High Commissioner for Refugees, UNHRC Revised
Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum
Seekers, Feb. 1999, p. 1.
48 8 C.F.R. §212.5(b).
49 INA §212(d)(5)(A). Prior to the enactment of IIRIRA, the standard for parole was if it
was in the public interest or for emergency reasons.
50 The IIRIRA raised the minimum bond amount from $500 to $1,500. INA §236(a)(2)(A).

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CRS-11
Rights of the Detained
The courts have ruled that detained aliens not under expedited removal51 have
the following rights:
! the right to apply for asylum;
! the right to communicate with consular or diplomatic officers of
their home country;52
! the right to be represented by counsel (but not at government
expense);53
! the right to challenge transfers to other detention facilities that might
interfere with the right to counsel;
! the right to medically adequate treatment;
! the right to access free legal service lists and telephones; and
! the right to self-help and other legal reference material.
Under the law, aliens also have the right to legally challenge their detention.54
Custody and bond determinations can be reviewed by an immigration judge at any
time before the removal order becomes final, except in certain cases.55 Additionally,
the alien may appeal the immigration judges’ decision to the Board of Immigration
Appeals (BIA). Nonetheless, the courts have afforded the Administration much
discretion in decisions related to where aliens are detained, the management of
detention facilities, and the treatment of aliens.
Detention Statistics
Detention Population
As Figure 1 shows, between FY1994 and FY2001 the average size of the daily
noncitizen detention population increased steadily. There was a very slight decrease
51 As discussed above, those under expedited removal have more limited rights than
detainees not subject to expedited removal.
52 In accordance with U.S. constitutional considerations, customary international law, and
the Vienna Convention on Consular Relations (Apr. 24, 1963, art. 36, T.I.A.S. 6820, 21
U.S.T. 77, to which the United States is a party), the regulations require notice to detained
aliens of their right to communicate with consular and diplomatic officers of their home
country. Additionally, certain countries have treaties with the United States that require
notification of the diplomatic officers of the country when one of their nationals is detained
in removal proceedings, regardless of whether the alien requests such notification and even
if the alien requests that no communication be made on his behalf. (8 C.F.R. §236.1(e))
53 Detained aliens have the right to obtain counsel, but since immigration procedures are
considered civil, not criminal, actions, the government is not obligated to provide counsel.
54 Charles Gordon, et al., Immigration Law and Procedure §108.01.
55 Immigration judges may not redetermine custody for: (1) aliens in exclusion proceedings;
(2) arriving aliens; (3) aliens deportable as security threats; (4) criminal aliens; and (5)
aliens in pre-IIRIRA deportation proceedings with aggravated felonies.

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CRS-12
in the size of the detention population between FY2001 and FY2002, and then a
steady increase between FY2002 and FY2004. The size of the daily population
increased by 153%, from 9,011 to 22,812, between FY1996, when IIRIRA was
enacted, and FY2004. The largest increase occurred between FY1997 and FY1998,
the year that all the provisions of the IIRIRA became enforceable. Some argue that
the size of the detained population is dependent on the amount of detention space,
and, the increase in the detained population after FY1998 reflects an increase in
detention space, not in the amount of people who should be detained.
The INS detained approximately 202,000 aliens during FY2002. Approximately
103,000 (51%) of these aliens had criminal records. The average daily detention
population was 20,282. Although 50% of all detainees were from Mexico, they
tended to have short stays in detention and, thus, they accounted for only 24% of
detention bed days. The other leading countries for the percentage of detention bed
days were: Cuba (9%); El Salvador (6%); Guatemala, Honduras, and China (each
with 5%); Jamaica (4%); and Haiti and the Dominican Republic (each with 3%).56
Figure 1. Average Daily Population in Detention: FY1994-FY2004
Thousands
25
22812
21133
20429
19458
20
17772
20282
15447
15
11871
10
9011
7475
6785
5
0
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
Source: FY1994 through FY2002 CRS presentation of published INS and DHS data.
FY2003 and FY2004 CRS presentation of unpublished DHS data.
Note: FY2004 is the average daily population in detention through March 20, 2004.
56 Department of Homeland Security, Office of Immigration Statistics, 2002 Yearbook of
Immigration Statistics, Oct. 2003, p. 175.

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CRS-13
Detention Space and Cost
Many contend that DHS does not have enough detention space to house all those
who should be detained. They contend that the increase in the number of classes of
aliens subject to mandatory detention has impacted the availability of detention space
for lower priority detainees. There are reportedly 300,000 noncitizens in the United
States who have been ordered deported who have not left the country. Some argue
that these 300,000 people would have left the country if they had been detained once
they were ordered deported. A study done by DOJ’s Inspector General found that
almost 94% of those detained with final orders of removal were deported while only
11% of those not detained who were issued final orders of removals left the
country.57 Concerns have been raised that decisions on which aliens to release and
when to release the aliens may be based on the amount of detention space, not on the
merits of individual cases, and that the amount of space may vary by area of the
country leading to inequities and disparate policies in different geographic areas.58
In addition, the overall increase in the number of noncitizens in DHS detention
has raised questions about the cost of detaining noncitizens. For FY2004, DHS
budgeted $80 a day for each detainee held in detention.59 This cost does not include
transportation or the cost of deporting the alien. For FY2000 through FY2002 INS
budgeted $75 a day for each detainee held in detention. In FY2000, INS, DHS’
predecessor, budgeted $1,390,125 per day for 18,535 beds of detention space. For
FY2001, the INS budget included $1,477,650 per day for 19,702 beds. In FY2002
INS budgeted $1,583,025 per day for 21,107 beds.60
Alternatives to Detention. Due to the cost of detaining aliens, and the fact
that many non-detained aliens with final orders of removal do not leave the country,
there has been interest in developing alternatives to detention for certain types of
aliens who do not require a secure detention setting. ICE is conducting an electronic
monitoring pilot program for low-risk, non-violent offenders in three locations.61
The pilot program uses Electronic Monitoring Devices (EMD’s) in the form of ankle
bracelets to monitor aliens who are out on bond while awaiting hearings during
57 Office of the Inspector General, Department of Justice. The Immigration and
Naturalization Service’s Removal of Aliens Issued Final Orders, Report I-2003-004, Feb.
2003.
58 The decision does not usually apply to aliens who are under mandatory detention. A high
priority detainee may be released to make space for a mandatory detainee. Nonetheless,
DHS does have explicit procedures for choosing between two mandatory detainees if there
is not enough bed space. Pearson, INS Detention Guidelines, p. 1116.
59 Unpublished DHS data obtained from Betty Mills-Carilli, Bureau of Immigration and
Customs Enforcement Office of Congressional Affairs, Department of Homeland Security,
Apr. 8, 2004.
60 Unpublished INS data obtained from Mark Schaffer, INS Office of Congressional Affairs,
Aug. 29, 2002. More recent data on the amount of bed space are not yet available.
61 The locations are Miami, Florida; Detroit, Michigan; and Anchorage, Alaska.

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removal proceedings or the appeals process.62 Additionally, the Administration has
requested $11 million for the alternatives to detention program.63
Legislation in the 108th Congress
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.
Increase Discretionary Flexibility and Reviews
H.R. 47, introduced by Representative John Conyers on January 7, 2003, is the
bill with the most expansive detention provisions. H.R. 47 would allow judicial
review of bond and detention determinations. It would also give the Attorney
General discretion to release criminal aliens who do “not pose a danger to the safety
of other persons or of property, and [are] likely to appear for any scheduled
proceeding.” The bill would also eliminate mandatory detention for those in
expedited removal. H.R. 47 would legislate the six-month post-removal-order
custody determination, and place the burden of proof for continued detention on the
Attorney General, with an exception for aliens certified as terrorists. The bill would
also allow for de novo review64 by an immigration judge of the Attorney General’s
decision for post-removal-order detention. Furthermore, the bill would mandate the
establishment of a pilot program to examine the viability of supervision through
means other than confinement in a penal setting (e.g., home monitoring) of aliens
who have no criminal record or have not committed a crime of violence. Lastly, H.R.
47 would clarify that aliens have a right to counsel (at no expense to the government)
during bond, custody, detention, and removal proceedings.
Additionally, several bills would make changes to the mandatory detention
provisions which were codified in IIRIRA. Introduced on January 7, 2003 by
Representative Jose Serrano, H.R. 184 would allow criminal aliens who served in the
armed forces and were honorably discharged to be released from detention during
removal hearings. Representative Bob Filner introduced H.R. 3309 on October 16,
2003, which would allow the Attorney General to release a criminal alien if the alien
was lawfully admitted, or cannot be removed because the designated country will not
accept the alien and the alien satisfies the Attorney General that the alien does not
pose a danger to the safety of other persons or property, and is likely to appear for
any scheduled proceeding.
62 Department of Homeland Security, U.S. Immigration and Customs Enforcement, ICE
Tests New Electronic Monitoring Program, Aug. 8, 2003. Available at [http://www.ice.gov/
graphics/news/newsrel/articles/tether080803.htm].
63 Department of Homeland Security, Fiscal Year 2005 Congressional Budget Justifications.
64 De novo review means that the court undertakes a new review as to issues of fact or law,
as if there had not been a prior determination.

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On March 9, 2004, Representative Sheila Jackson-Lee introduced H.R. 3918,
which would direct the Secretary to exercise the authority to arrest, detain, and
release aliens only on a case-by-case basis. It would not permit determinations to be
made on the basis of group membership such as on country of origin or mode of
arrival. H.R. 3918 would also eliminate mandatory detention of aliens in expedited
removal.
Detention Authority
The “Safer Act” (H.R. 3522) introduced by Representative J. Gresham Barrett
on November 19, 2003, would reaffirm the fact that removable aliens do not have to
be taken into DHS detention while imprisoned for a criminal act. The bill states that
parole, supervised release, probation, or the possibility of arrest on other charges is
not a reason to defer arrest by DHS and DHS detention of removable aliens. H.R.
3522 would also amend the law to state that the Secretary of Homeland Security has
the authority to arrest and detain aliens pending a decision on whether the alien is to
be removed from the United States.65
Local Law Enforcement. The “Clear Law Enforcement for Criminal Alien
Removal Act of 2003" (CLEAR Act; H.R. 2671) introduced by Representative
Charlie Norwood on July 9, 2003, and the “Homeland Security Enhancement Act of
2003" (S. 1906) introduced by Senator Jeff Sessions on November 20, 2003, reaffirm
the authority of local law enforcement personnel to apprehend and detain aliens
during the enforcement of immigration laws. While some argue that the bills simply
reaffirm existing authorities, others assert that the bills would expand the authority
of state and local law enforcement agencies to enforce the civil aspects of the INA,
including apprehending and detaining deportable aliens.66
New Detention Requirements
On November 19, 2003, Representative Thomas G. Tancredo introduced H.R.
3534, which would increase the minimal bond amount to release an alien from
$1,500 to $10,000, and would specify that the Secretary shall not release an alien on
his own recognizance unless so ordered by an immigration judge. This provision
would reaffirm DOJ’s authority over DHS with respect to bond and release
determinations. H.R. 3534 would also clarify the functions of detention and removal
officers.
H.R. 3115 introduced on September 17, 2003 by Representative Vito Fossella
would direct the Attorney General to take into custody any alien convicted of any
federal or state offense and deportable on any ground. In addition, H.R. 3522 would
also require the Secretary of Homeland Security to notify the Assistant Attorney
General for the Criminal Division of DOJ when an alien who is inadmissable or
65 The law now reads that the Attorney General has the authority to arrest and detain aliens
while pending a decision on whether the alien is to be removed from the United States. INA
§236.
66 For more information on the role of local law enforcement in the apprehension and
detention of aliens see RL32270, Enforcing Immigration Law.

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CRS-16
removable for terrorist acts is detained so that the Criminal Division can make a
determination on whether the alien should be arrested and prosecuted for a criminal
offense.
Resources
Additionally, several bills would increase funding for detention space or provide
reimbursement to local entities for the cost of detaining aliens. H.R. 2235,
introduced by Representative Sam Graves on May 22, 2003, and H.R. 3522, the
“Safer Act,” would direct the Secretary to reimburse state and local law enforcement
entities for the cost of detaining aliens who were awaiting transfer to federal custody.
S. 1906 would authorize monies to increase detention space, and would mandate that
the Secretary designate a facility within each state to serve as the central location for
the state to transfer custody of aliens to DHS. S. 1906 and H.R. 2671 would provide
reimbursement to states for the cost of incarcerating and transporting illegal aliens,
authorizing $500 million for the detention and removal of aliens not lawfully present
in the United States for FY2004 and each subsequent year. H.R. 2671 would also
authorize $1 billion for each fiscal year to provide grants to local law enforcement
agencies for equipment, technology, and facilities directly related to the housing and
processing of unauthorized aliens in custody.
Similarly, H.R. 3534 would direct the Secretary by the end of FY2006 to
increase the number of detention and removal officers by 2,000. H.R. 3534 would
also increase the amount of detention space available, mandating that by FY2006
DHS should have twice as much space as was available in FY2001. Lastly, both
H.R. 1238, introduced by Representative Rick Larsen on March 12, 2003 and S. 1024
introduced by Senator Maria Cantwell on May 8, 2003 would create a program
known as the “Northern Border Prosecution Initiative” which would, under certain
circumstances, provide reimbursement to state and local governments for detention
costs.

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