Order Code RL32369
Immigration-Related Detention:
Current Legislative Issues
Updated January 25, 2007
Alison Siskin
Specialist in Immigration Legislation
Domestic Social Policy Division

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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 September 2006, for FY2006, on an average day,
19,409 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, 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.
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. In the 109th Congress, bills were introduced that covered a range of
provisions and perspectives concerning the detention of noncitizens. These bills
included H.R. 4437, and S. 2611. H.R. 4437, as passed by the House, and S. 2611,
as passed by the Senate, would have required that all aliens attempting to illegally
enter the United States be subject to mandatory detention until the alien was removed
and would have established the selection criteria for DHS to contract with private
entities to provide transportation for aliens apprehended along the border. Both bills
would have also codified and modified the regulations governing the review of post-
removal order detention cases. 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Release on Parole and Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Rights of the Detained . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Detention Statistics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Detention Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Detention Space and Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Alternatives to Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
September 11, 2001 Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Legislation in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Enacted Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Other Considered Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Increase Discretionary Flexibility and Reviews . . . . . . . . . . . . . . . . . . 17
Detention Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
New Detention Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Legislation in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
List of Figures
Figure 1. Daily Detention Population FY1994- FY2006 . . . . . . . . . . . . . . . . . . . 14

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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 CRS Report
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 that 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. The mandatory detention provisions created in IIRIRA
led to some aliens being in indefinite administrative custody. These aliens had been
ordered removed from the United States, but were detained because the aliens could
not obtain travel documents to another country or the immigration officials refused
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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to release them. These detainees were often referred to as “lifers” or
“unremovables.”38 Many of these detainees had criminal records, but some simply
lacked immigration status and the ability to return to their country of origin. Some
detainees had 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 removal order as the presumptively reasonable period
within which to effect removal. 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 nor that an alien may not 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.
38 Most indefinite detainees were from countries that lack normal diplomatic relations with
the United States (e.g., Cuba, Iran, or North Korea). (The majority of “lifers” were 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 were 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 could
not be determined. Other indefinite detainees were from countries that refused 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 have been
indefinitely detained because the alien had 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. For more on the Mariel Cubans 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, 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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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,
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 Between November 14, 2001,
and March 9, 2005, only 17 aliens whose removal was not foreseeable had been
detained under the “special circumstances.” Two aliens were detained because of
serious adverse foreign policy consequences, and 15 were detained because they were
determined to be specifically dangerous.43
In Clark v. Martinez,44 the Court held that the rationale it applied in Zadvydas
to aliens who had been admitted to the United States and were deportable also
applied to aliens who had not been legally admitted into the United States, were
found inadmissible and ordered removed, and were being detained beyond the
statutory removal period although removal was not reasonably foreseeable.45
Accordingly, the six-month presumptive detention period applied. In Zadvydas, the
Court explicitly let stand an older decision which distinguished between the
indefinite detention of an excludable alien (similar to inadmissible alien under
current law) who sought to enter the United States and a deportable alien who had
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 Unpublished data from DHS.
44 543 U.S. 371, 160 L. Ed. 2d 734 (2005). This paragraph was written by Margaret
Mikyung Lee, Legislative Attorney, American Law Division.
45 Inadmissible aliens have not yet been admitted to the United States after inspection and
are ineligible to be admitted legally. Deportable aliens have been inspected and admitted
to the United States, but subsequently have become ineligible to remain and are subject to
removal. Those who are physically in the United States but who entered without inspection,
i.e., illegally, are also considered inadmissible. Long-standing legal doctrine, commonly
known as the “entry fiction,” holds that those who are inadmissible have no right to enter
or remain in the country, whereas those who are deportable do have greater protections.

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CRS-10
entered the United States.46 Therefore, the Court had suggested that it might reach
a different conclusion for indefinite detention of inadmissible aliens from the one it
reached in Zadvydas for deportable aliens and noted that the statutory purposes and
constitutional concerns for deportable aliens were not the same for inadmissible
aliens. However, in Clark v. Martinez, it decided that to treat inadmissible aliens
differently under the removal statute would render an inconsistent interpretation of
the removal statute, where the statute itself made no distinction between the
treatment of inadmissible and deportable aliens. Justice Thomas criticized the
Court’s opinion as departing from its constitutional rationale in Zadvydas and its
suggestion in that case that inadmissible aliens presented a different situation.47 At
the same time, Justice Thomas agreed with the Court’s “fidelity to the text” of the
removal statute; he believed that Zadvydas had been wrongly decided and should
have been overruled.
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.48 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.49
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
46 Prior to IIRIRA, aliens ineligible to enter the country were “excludable,” rather than
“inadmissible,” and were subject to exclusion proceedings, while deportable aliens were
subject to deportation proceedings. After IIRIRA, exclusion and deportation proceedings
were consolidated into removal proceedings, but certain aliens are subject to expedited
removal. The salient difference between excludable and inadmissible aliens is that aliens
who entered without inspection were not considered excludable, whereas such aliens are
now considered inadmissible, which means they are not entitled to the same level of rights
in removal proceedings. This change was made as a disincentive to entering illegally, since
formerly, the entry fiction worked in favor of those who entered illegally.
47 160 L. Ed. 2d at 752.
48 INA §235(b)(1)(A)(i). For more on expedited removal, see CRS Report RL33109,
Immigration Policy on Expedited Removal of Aliens, by Alison Siskin and Ruth Ellen
Wasem.
49 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-11
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,
illegally rather than through legal immigration channels.50 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.51
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.”52 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.”53 In general, parole is available on a “case-by-case basis for
urgent humanitarian reasons or significant public benefit.”54
50 CRS Issue Brief IB93095, Immigration: Illegal Entry and Asylum Issues, coordinated by
Ruth Ellen Wasem. This report is archived and available from the author.
51 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].
52 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.
53 8 C.F.R. §212.5(b).
54 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.

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CRS-12
Aliens not subject to mandatory detention may also be released on bonds of a
minimum of $1,500.55 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.
Rights of the Detained
The courts have ruled that detained aliens not under expedited removal56 have
the following rights:
! the right to apply for asylum;
! the right to communicate with consular or diplomatic officers of
their home country;57
! the right to be represented by counsel (but not at government
expense);58
! 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.59
Custody and bond determinations can be reviewed by an immigration judge at any
time before the removal order becomes final, except in certain cases.60 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.
55 The IIRIRA raised the minimum bond amount from $500 to $1,500. INA §236(a)(2)(A).
56 As discussed above, those under expedited removal have more limited rights than
detainees not subject to expedited removal.
57 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))
58 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.
59 Charles Gordon, et al., Immigration Law and Procedure §108.01.
60 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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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 slight decrease in the
size of the detention population between FY2001 and FY2002, and then a steady
increase between FY2002 and FY2004. The daily population decreased between
FY2004 and FY2006. The size of the daily population increased by 115%, from
9,011 to 19,409 between FY1996, when IIRIRA was enacted, and FY2006. 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.
ICE detained approximately 237,667 aliens during FY2005.61 The average
daily detention population was 19,619. Although nearly 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 Honduras (9%); El Salvador and Guatemala (8% each);
Cuba (5%); China (4%); Brazil, Haiti, Jamaica, and the Dominican Republic (each
with 3%).62
61 In FY2004, approximately 51% of all detained aliens had criminal records. This statistic
was not available for FY2005. Department of Homeland Security, Office of Immigration
Statistics, Immigration Enforcement Actions: 2004, Nov. 2005, p. 5.
62 Department of Homeland Security, Office of Immigration Statistics, Immigration
Enforcement Actions: 2005, Nov. 2006, p. 4.

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CRS-14
Figure 1. Daily Detention Population FY1994- FY2006
25,000
21,133
21,298
20,429
19,922
19,485
19,619
19,409
20,000
17,772
15,447
15,000
11,871
10,000
9,011
7,475
6,785
5,000
0
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006
Fiscal Year
Source: FY1994 through FY2005 CRS presentation of published DHS data. FY2006 CRS
presentation of unpublished DHS data.
Note: FY2006 is the average daily population in detention through September 11, 2006.
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.63 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.64
63 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.
64 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
(continued...)

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CRS-15
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.65 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.66
The Department of Homeland Security Appropriations Act, FY2007 (P.L. 109-
295)67 appropriated $1,984 million for DRO, 46% more than the FY2006
appropriation of $1,358 million.68 The Conference report (H.Rept. 109-699) stated
that with the new DRO funding, ICE would be able to sustain an average bed space
capacity of 27,500, as proposed by the President.69
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. On June 21, 2004, ICE began
a pilot program for low-risk, non-violent offenders in eight locations.70 The program,
the Intensive Supervision Appearance Program (ISAP), provides less restrictive
alternatives to detention, using such tools as electronic monitoring devices (e.g.,
ankle bracelets), home visits, work visits, and reporting by telephone, to monitor
aliens who are out on bond while awaiting hearings during removal proceedings or
64 (...continued)
is not enough bed space. Pearson, INS Detention Guidelines, p. 1116.
65 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.
66 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.
67 Signed into law on Oct. 4, 2006. For more information on FY2007 appropriations see,
CRS Report RL33428, Homeland Security Department Appropriations: FY2007,
coordinated by Jennifer Lake and Blas Nuñez-Neto, pp. 45-52.
68 P.L. 109-90, signed into law on Oct. 18, 2005.
69 DHS FY2007 Congressional Budget Justifications, p. ICE-S&E-4. For FY2006, the
funded number of beds was 20,800. CRS Report RL33351, Immigration Enforcement in the
United States, coordinated by Alison Siskin.
70 The locations are San Francisco, California; Denver, Colorado; Miami, Florida;
Baltimore, Maryland; St. Paul, Minnesota; Kansas City, Missouri; Portland, Oregon; and
Philadelphia, Pennsylvania. An earlier pilot using Electronic Monitoring Devices was
conducted in Anchorage, Alaska; Miami, Florida; and Detroit, Michigan.

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CRS-16
the appeals process.71 Department of Homeland Security Appropriations Act for
FY2007 appropriated $44 million for alternatives to detention, including the ISAP.
September 11, 2001 Detainees
In the wake of the September 11, 2001 attacks many noncitizens who resemble
the ethnic, national origin and religious description of the attackers were detained or
removed from the United States. The Department of Justice (DOJ) did not release
the names of the detainees and chose to close immigration hearings for some of them.
Civil and human rights advocacy groups, including Amnesty International and the
Center for Constitutional Rights, alleged that the constitutional rights of the detainees
were violated and that they were subjected to human rights abuses while in detention.
Consequently, several law suits were filed challenging the non-disclosure of
individual detainee information, the closed hearings, and the detention conditions.72
Not all aliens arrested in connection with the investigation into the September
11 attacks have been detained in INS custody. Some are likely to have been included
among those charged with federal crimes in connection with the September 11
terrorist attacks or among those held on material witness warrants.73 Aliens being
detained in Guantanamo Bay, Cuba, are not in INS custody; they are in the custody
of the U.S. Military as unlawful combatants captured and detained outside the United
States.
One of the recommendations in The 9/11 Commission Report is that the United
States should engage its friends to develop a common coalition approach towards the
detention and humane treatment of captured terrorists. The report also states that the
United States should be able to reconcile its views on how to balance humanity and
security with our nation’s commitment to these same goals, and allegations that the
United States abused prisoners in its custody make it harder to build needed
diplomatic, political, and military alliances.74 Although the report specifically refers
to those who are not being held under a specific country’s criminal laws, rather than
71 Department of Homeland Security, U.S. Immigration and Customs Enforcement, “Public
Security: ICE Unveils New Alternative to Detention,” Inside ICE, vol. 1, no. 5, June 21,
2004, available at [http://www.ice.gov/graphics/news/newsreleases/insideice/insideice
_062104_web3.htm].
72 For a full discussion of those detained as part of the investigation into the attacks of
September 11, 2001, see CRS Report RL31606, Detention of Noncitizens in the United
States, by Alison M. Siskin and Margaret Mikyung Lee.
73 Memorandum from Daniel J. Bryant, Assistant Attorney General, to Sen. Carl Levin,
Chairman of the Investigations Subcommittee of the Senate Committee on Governmental
Affairs (July 3, 2002). According to this memorandum, as of June 28, 2002, the Criminal
Division of the Department of Justice had charged 129 persons with federal crimes in
connection with the investigation into the September 11 terrorist attacks. Of that number,
three were fugitives, while the rest had been arrested and had a hearing. Of these, 76
remained in custody. The DOJ declined to disclose information regarding material
witnesses, citing potential adverse impact on ongoing investigations.
74 The 9/11 Commission Report, pp. 379-380.

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CRS-17
those detained for immigration violations in the United States, some may question
if the Commission’s recommendation for coalition guidelines should be extended to
others detained during investigations into terrorist activities.
Legislation in the 108th Congress
Bills introduced in the 108th Congress covered a range of provisions and
perspectives concerning the detention of noncitizens.
Enacted Legislation
The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458/S.
2845)75 directs the Secretary of Homeland Security to increase the number of
immigration detention beds by at least 8,000 for each FY2006 through FY2010. The
increase in bed space is subject to the availability of appropriated funds. The act also
states that priority for the use of the additional beds should be given to aliens who are
removable or inadmissible on security and terrorist related grounds. S. 2845, as
passed by the House, would have directed the Secretary to increase the amount of
detention bed space by not less than 2,500 beds for FY2006 and FY2007. The
Senate-passed version of S. 2845 did not contain a provision on detention space.
Other Considered Bills
Increase Discretionary Flexibility and Reviews. H.R. 47, introduced by
Representative John Conyers on January 7, 2003, was the bill in the 108th Congress
with the most expansive detention provisions. H.R. 47 would have allowed judicial
review of bond and detention determinations. It also would have given the Attorney
General discretion to release criminal aliens who did “not pose a danger to the safety
of other persons or of property, and [were] likely to appear for any scheduled
proceeding.” The bill would also have eliminated mandatory detention for those in
expedited removal. H.R. 47 would have legislated the six-month post-removal-order
custody determination, and placed the burden of proof for continued detention on the
Attorney General, with an exception for aliens certified as terrorists. The bill would
also have allowed for de novo review76 by an immigration judge of the Attorney
General’s decision for post-removal-order detention. Furthermore, the bill would
have mandated 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 have clarified that aliens have a right to counsel (at
no expense to the government) during bond, custody, detention, and removal
proceedings.
75 §5204, signed into law on Dec. 17, 2004.
76 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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Additionally, several bills would have made changes to the mandatory detention
provisions that were codified in IIRIRA. Introduced on January 7, 2003, by
Representative Jose Serrano, H.R. 184 would have allowed 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 have allowed the Attorney General to release a
criminal alien if the alien was lawfully admitted, or could not be removed because
the designated country would not accept the alien and the alien satisfied the Attorney
General that the alien did not pose a danger to the safety of other persons or property,
and would have been likely to appear for any scheduled proceeding.
On March 9, 2004, Representative Sheila Jackson-Lee introduced H.R. 3918,
which would have directed the Secretary to exercise the authority to arrest, detain,
and release aliens only on a case-by-case basis. It would not have permitted
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 have eliminated 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 have reaffirmed the
fact that removable aliens do not have to be taken into DHS detention while
imprisoned for a criminal act. The bill stated that parole, supervised release,
probation, or the possibility of arrest on other charges was not a reason for DHS to
defer arrest and detention of removable aliens. H.R. 3522 would also have amended
the law to state that the Secretary of Homeland Security had the authority to arrest
and detain aliens pending a decision on whether the alien was to be removed from
the United States.77
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, would
have reaffirmed the authority of local law enforcement personnel to apprehend and
detain aliens during the enforcement of immigration laws. While some argued that
the bills simply reaffirmed existing authorities, others asserted that the bills would
have expanded the authority of state and local law enforcement agencies to enforce
the civil aspects of the INA, including apprehending and detaining deportable
aliens.78
New Detention Requirements. On November 19, 2003, Representative
Thomas G. Tancredo introduced H.R. 3534, which would have increased the minimal
bond amount to release an alien from $1,500 to $10,000, and would have specified
that the Secretary shall not release an alien on his own recognizance unless so
77 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.
78 For more information on the role of local law enforcement in the apprehension and
detention of aliens see CRS Report RL32270, Enforcing Immigration Law.

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CRS-19
ordered by an immigration judge. This provision would have reaffirmed DOJ’s
authority over DHS with respect to bond and release determinations. H.R. 3534
would also have clarified the functions of detention and removal officers.
H.R. 3115, introduced on September 17, 2003, by Representative Vito Fossella,
would have directed the Attorney General to take into custody aliens convicted of any
federal or state offense and deportable on any ground. In addition, H.R. 3522 would
have required the Secretary of Homeland Security to notify the Assistant Attorney
General for the Criminal Division of DOJ when an alien who was inadmissable or
removable for terrorist acts was detained so that the Criminal Division could make
a determination on whether the alien should have been arrested and prosecuted for
a criminal offense.
Resources. Additionally, several bills would have increased funding for
detention space or provided 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 have directed 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 have authorized monies to increase
detention space, and would have mandated 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 have reimbursed 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 also would have authorized $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 have directed the Secretary by the end of FY2006
to increase the number of detention and removal officers by 2,000. H.R. 3534 also
would have increased 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 have created
a program known as the “Northern Border Prosecution Initiative” that would, under
certain circumstances, have provided reimbursement to state and local governments
for detention costs.
Legislation in the 109th Congress
Although several bills in the 109th Congress contained provisions concerning the
detention of aliens in the United States, in the House, H.R. 4437, H.R. 4312, and
H.R. 6094 received congressional action, whereas in the Senate S. 2454, S.Amdt.
3192, and S. 2611 were debated on the floor. H.R. 4437, as passed by the House on

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CRS-20
December 16, 2005,79 and H.R. 4312, as reported out of the House Homeland
Security Committee on December 6, 2005,80 contained some similar provisions on
the detention of noncitizens to those in S. 2454, introduced by Senate Majority
Leader William H. Frist on March 16, 2006, S.Amdt. 3192, and S. 2611. S.Amdt.
3192 was introduced by Senator Arlen Specter on the floor as an amendment to S.
2454, and the provisions as introduced were identical to those contained in the
version of Chairman Specter’s mark reported out of the Senate Judiciary Committee
on March 27, 2006. S. 2611, introduced by Senator Specter and placed on the
Senate’s Legislative Calendar on April 24, 2006, was passed by the Senate on May
25, 2006.81 H.R. 6094, introduced by Representative James Sensenbrenner on
September 19, 2006, was passed by the House on September 21, 2006.
H.R. 4437, H.R. 4312, S. 2454, and S.Amdt. 3192 would have required that as
of October 1, 2006, all aliens attempting to illegally enter the United States who did
not withdraw their applications and depart immediately or were granted parole, be
subject to mandatory detention until the alien was either removed or granted
admission. S. 2611 contained the same provision, but the effective date was October
1, 2007.
Nonetheless, there were differences between the bills. H.R. 4437 and H.R. 4312
would have authorized and established the selection criteria for the Secretary of DHS
to contract with private entities to provide transportation to detention facilities and
other locations for aliens apprehended along the border by DHS’ Bureau of Customs
and Border Protection. This provision was not included in the Senate bills. In
addition, only H.R. 4312 would have authorized such sums as necessary for FY2007
though FY2010 to carry out the provision of Intelligence Reform and Terrorist
Prevention Act of 2004,82 which directed DHS to increase the number of detention
beds by 8,000 each year.
Furthermore, H.R. 4437, S. 2454, S.Amdt. 3192, S. 2611, and H.R. 6094 would
have codified and modified the regulations governing the review of post-removal
order detention cases for alien who were lawfully admitted. As under current
regulations,83 the bills would have allowed for the continued detention of aliens with
highly contagious diseases, whose release would cause serious adverse foreign policy
consequences, and who are detained for security or terrorism reasons. The bills
would have also expand the current definition in regulation of aliens subject to
continued detention because they pose a special danger to the public, allowing for the
continued detention of :
79 The bill was introduced by Representatives James Sensenbrenner and Peter T. King on
Dec. 6, 2005.
80 H.R. 4312 was introduced by Representative Peter T. King on Nov. 14, 2005.
81 S. 2612 which was introduced by Senator Chuck Hagel and referred to the Senate
Judiciary Committee, is identical to S. 2611, as introduced.
82 P.L. 108-458, §5204.
83 8 C.F.R. §214.14.

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CRS-21
! aliens convicted of one or more aggravated felonies or of one or
more crimes specified by the Secretary of Homeland Security;
! aliens who have committed one or more crimes of violence and
because of metal illness or personality disorder are likely to engage
in acts of violence in the future; and
! aliens whose release will threaten the safety of the community or any
person, conditions of the release cannot reasonably ensure the safety
of the community or person, and has been convicted of at least one
aggravated felony.
In the Senate bills (S. 2454, S.Amdt. 3192, and S. 2611), the post-removal order
custody determinations would have applied to all detained aliens, whereas H.R. 4437
would have allowed but not mandated that the Secretary of DHS apply the same rules
for post-removal order custody determinations to aliens who did not enter the United
States lawfully and had not been in the country for more than two years. H.R. 6094
would not have applied the rules for post-removal order custody determinations to
aliens who had not effected entry. H.R. 4437, but not the Senate bills or H.R. 6094,
would also have required that all judicial reviews of continued detention be instituted
in the United States District Court for the District of Columbia.
Furthermore, only S. 2611 would have authorized $850 million each year for
detention and transportation of unauthorized aliens from state or local law
enforcement to federal custody. S. 2611 also would have required the Secretary of
DHS to contract or acquire 20 detention facilities in the United States that have the
capacity to detain at least 10,000 aliens. In addition, H.R. 4437 and H.R. 6094 would
have required mandatory detention for members of street gangs

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