Immigration Detention: A Legal Overview

Figure 1. Detention and Review Process Under INA Section 236(a)

Sources: 8 U.S.C. § 1226(a); 8 C.F.R. §§ 236.1(c)(8), (d)(1), (g)(1), 287.3(d), 1003.1(d)(1), 1003.19(a), (i)(1), (i)(2), 1236.1(d)(1), (3)(i), (4).

Figure 2. Detention of Applicants for Admission

Sources: 8 U.S.C. §§ 1182(d)(5)(A), 1225(b)(1)(B)(ii), (iii)(IV), 1225(b)(2(A); 8 C.F.R. §§ 212.5(b), 235.3(b)(2)(iii), (3), (4)(ii), (5)(i), 235.3(c); Jennings v. Rodriguez, 138 S. Ct. 830 (2018); Padilla v. U.S. Immigration and Customs Enforcement, 387 F. Supp. 3d 1219 (W.D. Wash. 2019).

Figure 3. General Procedure for Post-Order of Removal Detention

Sources: 8 U.S.C. § 1231(a)(2), (3), (6); 8 C.F.R. §§ 241.3(a), 241.4(a), (c)(1), (c)(2), (h)(1), (i)(1), (k)(1), (k)(2).

Figure 4. Overview of Detention After Removal Proceedings

Sources: 8 U.S.C. § 1231(a)(2), (3), (6); 8 C.F.R. §§ 241.3(a), 241.4(a), 241.13, 241.14; Zadvydas v. Davis, 533 U.S. 678 (2001); Clark v. Martinez, 543 U.S. 371 (2005); Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008); Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008); Tuan Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004); Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. 56,967 (Nov. 14, 2001); Memorandum from Bo Cooper, Gen. Counsel, Immigration & Naturalization Serv., to Reg'l Counsel for Distribution to District and Sector Counsel: Detention and Release during the Removal Period of Aliens Granted Withholding or Deferral of Removal (Apr. 21, 2000).

See 8 U.S.C. § 1103(a)(1) ("The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers . . ."). In 2003, the former Immigration and Naturalization Service (INS) ceased to exist as an independent agency under the U.S. Department of Justice, and its functions were transferred to DHS. See Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 101, 441, 451, 471, 116 Stat. 2135, 2142, 2192, 2195, 2205 (2002).

See Demore v. Kim, 538 U.S. 510, 528 (2003) ("Such detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed."); Zadvydas v. Davis, 533 U.S. 678, 699 (2001) (noting that detention serves the purpose of "assuring the alien's presence at the moment of removal.").

See Matter of Valdez-Valdez, 21 I. & N. Dec. 703, 709 (BIA 1997) (observing that the immigration detention provisions "were geared toward ensuring community safety and the criminal alien's appearance at all deportation hearings."); Matter of Drysdale, 20 I. & N. Dec. 815, 817 (BIA 1994) ("[I]f the alien cannot demonstrate that he is not a danger to the community upon consideration of the relevant factors, he should be detained in the custody of the Service."); Matter of Patel, 15 I. & N. Dec. 666, 666 (BIA 1976) ("An alien generally is not and should not be detained or required to post bond except on a finding that he is a threat to the national security or that he is a poor bail risk.") (citations omitted).

See 8 U.S.C. §§ 1225(b)(1)(B) (detention of arriving aliens and aliens who recently entered the United States without inspection, and who are subject to expedited removal), 1225(b)(2)(A) (detention of "other aliens" seeking admission who are subject to removal), 1226(a) (general detention authority over aliens subject to removal), 1226(c) (detention of aliens who have committed certain criminal offenses or engaged in other proscribed conduct), 1226a(a) (detention of suspected terrorists), 1231(a)(2) (detention of aliens following completion of removal proceedings), 1231(a)(6) (detention of aliens following completion of removal proceedings).

Id. § 1226(a).

Id. §§ 1225(b)(1)(B)(ii), (iii)(IV), 1225(b)(2)(A), 1226(c), 1231(a)(2).

Arizona v. United States, 567 U.S. 387, 394 (2012).

See INS v. Delgado, 466 U.S. 210, 235 (1984) ("Congress, of course, possesses broad power to regulate the admission and exclusion of aliens, . . ."); Galvan v. Press, 347 U.S. 522, 530 (1954) ("The power of Congress over the admission of aliens and their right to remain is necessarily very broad, touching as it does basic aspects of national sovereignty, more particularly our foreign relations and the national security.").

See Reno v. Flores, 507 U.S. 292, 306 (1993) ("Congress has the authority to detain aliens suspected of entering the country illegally pending their deportation hearings."); Carlson v. Landon, 342 U.S. 524, 533 (1952) ("Detention is necessarily a part of this deportation procedure."); Wong Wing v. United States, 163 U.S. 228, 235 (1896) ("We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid.").

See Landon v. Plasencia, 459 U.S. 21, 32 (1982) ("[T]he power to admit or exclude aliens is a sovereign prerogative"); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) ("The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation").

Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)).

Demore v. Kim, 538 U.S. 510, 522 (2003).

Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see also Mathews v. Diaz, 426 U.S. 67, 77 (1976) ("Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection."). The Fifth Amendment's Due Process Clause provides that "No person shall be . . . deprived of life, liberty, or property, without due process of law. . . ", U.S. Const. amend. V.

Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (citing Youngberg v. Romeo, 457 U.S. 307, 316 (1982)); see also Zadvydas, 533 U.S. at 690 ("Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.").

See Landon v. Plasencia, 459 U.S. 21, 32 (1982) ("This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative."). The Court, however, has held that a returning lawful permanent resident (LPR) has a due process right to a hearing before he may be denied admission. See id. at 33 (describing Supreme Court precedent "as holding 'that the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him'") (quoting Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963)).

Id. at 32.

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215–16 (1953).

Id. at 215; see also United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (upholding exclusion of alien detained at Ellis Island and declaring that "[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned"). This distinction, known as the "entry fiction" doctrine, allows courts to treat an alien arriving at the border or port of entry as though he had never entered the country, even if he is, technically, physically within U.S. territory, such as at a border checkpoint, an airport, or an immigration detention facility. See Zadvydas, 533 U.S. at 693 ("The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.").

See Reno v. Flores, 507 U.S. 292, 302 (1993) (recognizing that due process includes "a substantive component, which forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.") (emphasis in original); Kwai Fun Wong v. INS, 373 F.3d 952, 971 (9th Cir. 2004) ("The entry fiction thus appears determinative of the procedural rights of aliens with respect to their applications for admission. The entry doctrine has not, however, been applied, by the Supreme Court or by this court, to deny all constitutional rights to non-admitted aliens."); Rosales-Garcia v. Holland, 322 F.3d 386, 410 (6th Cir. 2003) ("The fact that excludable aliens are entitled to less process, however, does not mean that they are not at all protected by the Due Process Clauses of the Fifth and Fourteenth Amendments."); Chi Thon Ngo v. INS, 192 F.3d 390, 396 (3d Cir. 1999) ("Even an excludable alien is a 'person' for purposes of the Fifth Amendment and is thus entitled to substantive due process.") (citing Wong Wing v. United States, 163 U.S. 228, 238 (1896)).

See e.g., Rosales-Garcia, 322 F.3d at 413–14 ("[T]he Mezei Court explicitly grounded its decision in the special circumstances of a national emergency and the determination by the Attorney General that Mezei presented a threat to national security."); Kouadio v. Decker, 352 F. Supp. 3d 235, 239–40 (S.D.N.Y. 2018) ("Mezei was decided in the interest of national security, against a petitioner whose detention was authorized under 'emergency regulations promulgated pursuant to the Passport Act.'") (quoting Mezei, 345 U.S. at 214–15); Lett v. Decker, 346 F. Supp. 3d 379, 386 (S.D.N.Y. 2018) ("[T]he Mezei Court explicitly tailored its holding to the national security context, acknowledging that '[a]n exclusion proceeding grounded on danger to the national security . . . presents different considerations' than a typical deportation proceeding.") (quoting Mezei, 345 U.S. at 215–16).

See INS v. St. Cyr, 533 U.S. 289, 305 (2001) (Noting that "[t]he writ of habeas corpus has always been available to review the legality of Executive detention."); Thuraissigiam v. Dep't of Homeland Sec., 917 F.3d 1097, 1115–17 (9th Cir. 2019) (ruling that a detained, non-admitted alien could invoke the Suspension Clause to challenge his expedited removal order because "habeas is available even when a petitioner lacks due process rights."); compare with Castro v. Dep't of Homeland Sec., 835 F.3d 422, 444–50 (3d Cir. 2016), cert. denied, 137 S. Ct. 1581 (2017) (holding that "recent clandestine entrants" could not invoke Suspension Clause to challenge their expedited removal orders in habeas proceedings because they lacked sufficient constitutional protections). See also Boumediene v. Bush, 553 U.S. 723, 771 (2008) (holding that aliens detained as enemy combatants at Guantanamo Bay could invoke the Suspension Clause to challenge the adequacy of review under the Detainee Treatment Act).

See Zadvydas, 533 U.S. at 693 ("But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.").

Id. at 694.

See United States v. Verdugo-Urquidez, 494 U.S. 2590 (1990) ("These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country."); Landon v. Plasencia, 459 U.S. 21 (1982) ("[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly."); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5 (1953) ("But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders."); Johnson v. Eisentrager, 339 U.S. 763, 770 (1950) ("The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society."); Yamataya v. Fisher, 189 U.S. 86, 101 (1903) ("[I]t is not competent for the Secretary of the Treasury or any executive officer, at any time within the year limited by the statute, arbitrarily to cause an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here, to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States.").

Zadvydas, 533 U.S. at 682 ("We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit 'reasonable time' limitation, the application of which is subject to federal-court review.").

Id. at 695, 699–701.

See Wong Wing v. United States, 163 U.S. 228, 235 (1896) ("We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid.").

See Demore v. Kim, 538 U.S. 510, 513, 531 (2003) (ruling that it was "constitutionally permissible" for the government to subject certain aliens convicted of specified crimes to mandatory detention during their removal proceedings); Jennings v. Rodriguez, 138 S. Ct. 830, 842–43, 846–48, 851 (2018) (holding that the government has the statutory authority to detain aliens potentially indefinitely during their removal proceedings, but declining to address whether such indefinite detention is unconstitutional).

See e.g., Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018) ("We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional"); Borbot v. Warden Hudson Co. Corr. Facility, 906 F.3d 274, 278 (3d Cir. 2018) ("Jennings did not call into question our constitutional holding in [Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011)] that detention under § 1226(c) may violate due process if unreasonably long."); Padilla v. U.S. Immigration and Customs Enforcement, 387 F. Supp. 3d 1219, 1223 (W.D. Wash. 2019), appeal docketed, No. 19-35565 (9th Cir. July 5, 2019) ("It is the finding of this Court that it is unconstitutional to deny these class members a bond hearing while they await a final determination of their asylum request."); Brissett v. Decker, 324 F. Supp. 3d 444, 452 (S.D.N.Y. 2018) (ruling that detention of alien for more than 9 months without bond violated due process); Portillo v. Hott, 322 F. Supp. 3d 698, 709 (E.D. Va. 2018) (holding that alien detained for more than 14 months was entitled to a bond hearing).

Alien Enemies Act, 5 Cong. ch. 66, §§ 1, 2, 1 Stat. 577 (1798); see also Derek C. Julius, Land of the Free? Immigration Detention in the United States, 64 Fed. Law. 46, 48 (2017) (noting that the Alien Enemies Act "became the first (and oldest) statute authorizing alien detention").

See East Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1232 (9th Cir. 2018) ("The United States did not regulate immigration until 1875. Beginning in the late 19th century, Congress created a regulatory framework and categorically excluded certain classes of aliens.").

See e.g., Page Act of 1875, 43 Cong. ch. 141, § 5, 18 Stat. 477 (1875); Immigration Act of 1882, 47 Cong. ch. 376, § 2, 22 Stat. 214 (1882); Chinese Exclusion Act, 47 Cong. ch. 126, 22 Stat. 58 (1882); Immigration Act of 1891, 51 Cong. ch. 551, § 8, 26 Stat. 1084, 1085 (1891); An Act to Facilitate the Enforcement of the Immigration and Contract-Labor Laws of the United States, 52 Cong. ch. 206, § 5, 27 Stat. 569, 570 (1893).

Wong Wing v. United States, 163 U.S. 228, 235 (1896). But the Court held that aliens cannot be subject to criminal punishment, such as imprisonment at hard labor, without a trial. Id. at 237–38.

See e.g., Immigration Act of 1903, 57 Cong. Ch. 1012, § 21, 32 Stat. 1213, 1218 (1903); Immigration Act of 1907, 59 Cong. Ch. 1134, §§ 20, 21, 24, 34 Stat. 898, 904-06 (1907); Immigration Act of 1917, 64 Cong. Ch. 29, §§ 16, 19, 39 Stat. 874, 886, 889 (1917).

Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (1952).

Id. §§ 212(a), 241(a).

Id. §§ 235(b), 236(a).

Id. § 212(d)(5). See Samirah v. O'Connell, 335 F.3d 545, 547 (7th Cir. 2003) ("Parole allows an alien temporarily to remain in the United States pending a decision on his application for admission.").

Immigration and Nationality Act of 1952, Pub. L. No. 82-414 § 242(a), (b), 66 Stat. 163, 208-09 (1952). The INA also originally permitted the detention of aliens during a six-month period following a final order of deportation. Id. § 242(c). If the order of deportation remained outstanding after six months, the alien was subject to supervised release under regulations promulgated by the Attorney General. Id. § 242(d).

An "aggravated felony," which serves as a ground for deportation, has been expanded over time to cover a wide range of criminal offenses, such as murder, drug trafficking, burglary, crimes of violence, and certain firearm offenses. See 8 U.S.C. § 1101(a)(43).

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7343(a)(4), 102 Stat. 4181 (1988); Immigration Act of 1990, Pub. L. No. 101-649, § 504(a), 104 Stat. 4978 (1990); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, § 306(a)(4), 105 Stat. 1733 (1991). See also infra note 51 (noting how the Antiterrorism and Effective Death Penalty Act of 1996 expanded the range of criminal offenses that subjected aliens to mandatory detention and eliminated the government's authority to release criminal aliens on bond).

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996).

Id. § 304, 110 Stat. at 587-88 (codified at 8 U.S.C. §§ 1229, 1229a).

Id. § 304, 110 Stat. at 593 (codified at 8 U.S.C. § 1229a).

Id. § 304, 110 Stat. at 589 (codified at 8 U.S.C. § 1229a).

Id. § 304, 110 Stat. at 587-89, 593 (codified at 8 U.S.C. §§ 1229, 1229a).

Id. § 302, 110 Stat. at 579-84 (codified at 8 U.S.C. § 1225(b)(1)(A)(i)).

Id. Under IIRIRA, an alien who meets the criteria for expedited removal is subject to removal without a hearing or further review except in limited circumstances (e.g., the alien establishes a credible fear of persecution). Id. For more discussion about expedited removal, see CRS Report R45314, Expedited Removal of Aliens: Legal Framework, by Hillel R. Smith.

IIRIRA § 303(a) (codified at 8 U.S.C. § 1226(a)).

Id. (codified at 8 U.S.C. § 1226(c)). Previously, the Antiterrorism and Effective Death Penalty Act of 1996 had expanded the range of criminal offenses that would subject aliens to mandatory detention and eliminated the government's authority to release such aliens on bond. See Pub. L. No. 104-132, § 440(c), (e), 110 Stat. 1214 (1996). Despite these restrictions, IIRIRA contained "Transition Period Custody Rules" (TPCR) that restored the discretionary authority to release many aliens convicted of criminal offenses, and the legislation provided that these rules would become effective for up to two years if the INS lacked sufficient detention space and personnel to implement the new mandatory detention scheme. IIRIRA § 303(b)(2), (3). The INS invoked the TPCR for two years from October 9, 1996, to October 9, 1998. See Procedures for the Detention and Release of Criminal Aliens by the Immigration and Naturalization Service and for Custody Redeterminations by the Executive Office for Immigration Review, 63 Fed. Reg. 27,441 (May 19, 1998). Under the TPCR, aliens subject to removal on specified criminal or terrorist-related grounds were subject to detention during their removal proceedings, but could be released from custody if either (1) they were lawfully admitted to the United States and did not present a flight risk or danger to the community; or (2) they were not lawfully admitted to the United States, their designated country of removal would not accept them, and they did not pose a flight risk or danger to the community. IIRIRA § 303(b)(3); see Matter of Garvin-Noble, 21 I. & N. Dec. 672, 675 (BIA 1997) ("The transition rules were thus designed to give the Attorney General a 1-year grace period, which may be extended for an additional year, during which mandatory detention of criminal aliens would not be the general rule.").

IIRIRA § 302(a) (codified at 8 U.S.C. § 1225(b)(1)(B)(ii), (iii)(IV), (2)(A)).

See Jennings v. Rodriguez, 138 S. Ct. 830, 845 (2018) ("In sum, §§ 1225(b)(1) and (b)(2) mandate detention of aliens throughout the completion of applicable proceedings and not just until the moment those proceedings begin."). See also CRS Legal Sidebar LSB10343, Is Mandatory Detention of Unlawful Entrants Seeking Asylum Constitutional?, by Hillel R. Smith (providing an overview of how the mandatory detention requirements of INA Section 235(b) have been interpreted to apply to aliens transferred to formal removal proceedings).

IIRIRA § 305(a)(3) (codified at 8 U.S.C. § 1231(a)(2), (6)).

See id. §§ 302(a), 303(a), 305(a)(3) (codified at 8 U.S.C. §§ 1225(b)(1)(B)(ii), (iii)(IV), 1225(b)(2)(A), 1226(a), 1226(c), 1231(a)(2), 1231(a)(6)). Congress in 2001 passed the USA PATRIOT Act, which established a detention scheme for suspected terrorists. USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 412, 115 Stat. 272 (2001) (codified at 8 U.S.C. § 1226a(a)). Under this framework, if there are reasonable grounds to believe that an alien is inadmissible or deportable based on certain security-related and terrorist grounds, the Attorney General may certify that the alien should be detained until his removal from the United States or until the alien is determined not to be removable, in lieu of employing the detention authority found in other INA provisions, unless the Attorney General determines that the alien no longer presents a national security or public safety threat. Id. Nevertheless, this detention authority has not been used in practice, presumably because other INA provisions adequately authorize the detention of aliens who have committed specified criminal or terrorist-related offenses. See Adam Klein, Benjamin Wittes, Preventive Detention in American Theory and Practice, 2 Harv. Nat'l Sec. J. 85, 143 (2011) ("The other immigration detention authorities are themselves so robust that it apparently has not been necessary.").

8 U.S.C. § 1226(a).

Id. § 1226(c).

Id. § 1225(b)(1)(B)(ii), (iii)(IV), (2)(A).

Id. § 1231(a)(2), (6).

Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 945 (9th Cir. 2008).

See e.g., 8 U.S.C. §§ 1222(a) (requiring detention of aliens arriving at ports of entry who are inadmissible for having certain types of diseases or mental or physical disabilities, or because they come from countries where such diseases are prevalent), 1282(b) (authorizing the detention and removal of alien crewmen in certain circumstances).

Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018).

Enforcement and Removal Operations (ERO) is the component within ICE that is charged with the arrest, detention, and removal of aliens. See Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement, https://www.ice.gov/ero (last updated July 31, 2018).

8 U.S.C. § 1226(a). The statute and regulations provide that the alien may be arrested upon issuance of an administrative warrant (Form I-200). Id.; 8 C.F.R. § 236.1(b)(1). In some cases, however, an immigration officer may arrest an alien without a warrant (e.g., if the officer has reason to believe that an alien is present in the United States in violation of any law or regulation and is likely to escape before a warrant can be obtained for his arrest). 8 U.S.C. § 1357(a)(2).

See Casas-Castrillon, 535 F.3d at 948 (describing INA Section 236(a) as the "general, discretionary detention authority"). For more discussion about the INA's mandatory detention provisions, see infra at 17-31.

8 U.S.C. § 1226(a)(1), (2); see also 8 C.F.R. 236.1(c)(8) ("Any officer authorized to issue a warrant of arrest may, in the officer's discretion, release an alien not described in section 236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) of the Act . . . "). Conditional parole means that the alien is released on his own recognizance (rather than on bond) subject to certain conditions, such as reporting requirements. Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1115 (9th Cir. 2007). Conditional parole is distinct from humanitarian parole under INA Section 212(d)(5)(A), which refers to the release from custody of arriving aliens seeking admission into the United States "for urgent humanitarian reasons or significant public benefit." 8 U.S.C. § 1182(d)(5)(A); see Delgado-Sobalvarro v. Att'y Gen. of the United States, 625 F.3d 782, 786–87 (3d Cir. 2010); Ortega-Cervantes, 501 F.3d at 1115–20; Matter of Castillo-Padilla, 25 I. & N. Dec. 257, 260–63 (BIA 2010), aff'd, 417 Fed.Appx. 888, 2011 WL 880846 (11th Cir. Mar. 15, 2011) (holding that conditional parole is a distinct procedure from being paroled into the United States).

8 U.S.C. § 1226(a)(3). DHS regulations list specific categories of aliens who are authorized to work in the United States or who may apply for work authorization, including LPRs, asylum applicants, and aliens who have been paroled pending determinations as to whether they should be admitted into the United States. 8 C.F.R. § 274a.12.

8 U.S.C. § 1226(b) ("The Attorney General at any time may revoke a bond or parole authorized under subsection (a), rearrest the alien under the original warrant, and detain the alien."); 8 C.F.R. § 236.1(c)(9) ("When an alien who, having been arrested and taken into custody, has been released, such release may be revoked at any time . . . in which event the alien may be taken into physical custody and detained.").

See U.S. Gov't Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness (2014). ICE's Intensive Supervision Appearance Program III (ISAP III) is the current version of its ATD program that was started in 2004 (previous iterations include ISAP I, ISAP II, and the separate Family Case Management Program (FCMP)). Id. at 9; see also U.S. Immigration and Customs Enforcement's Alternatives to Detention (Revised), Dep't of Homeland Sec. Office of Inspector Gen. (Feb. 4, 2015), https://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-22_Feb15.pdf. ICE considers various factors in deciding whether an alien should be placed in ATD, including the alien's age (the alien must be at least 18), criminal history, community and family ties, compliance history, and humanitarian concerns. GAO-15-26, supra, at 8-10. Those enrolled in ATD are typically supervised by a contracting service that ensures the alien's appearance in immigration court through various means, such as GPS monitoring (e.g., ankle bracelets), unannounced home visits, telephonic or in-person meetings, and scheduled office visits with a case manager. Id. at 9-10. Aliens in ATD are also required to report to ICE periodically. Id. at 7. For further information about ATD, see CRS Report R45804, Immigration: Alternatives to Detention (ATD) Programs, by Audrey Singer.

8 C.F.R. § 236.1(g)(1) ("At the time of issuance of the notice to appear, or at any time thereafter and up to the time removal proceedings are completed, an immigration official may issue a Form I-286, Notice of Custody Determination."); see also id. § 236.1(c)(8) (authorizing release of alien on bond or conditional parole), (d)(1) (indicating that ICE will make an "initial custody determination . . . including the setting of a bond").

Id. § 287.3(d). The 48-hour window does not apply if the alien has been granted voluntary departure by an IJ. Id. Voluntary departure is a form of relief from removal that allows an alien to depart the United States at his own expense in lieu of removal if he meets certain statutory requirements. 8 U.S.C. § 1229c(a)(1), (b)(1).

Memorandum from Asa Hutchinson, Undersecretary, Border and Transportation Security, to Michael J. Garcia, Assistant Secretary, U.S. Immigration and Customs Enforcement, Robert Bonner, Commissioner, U.S. Customs and Border Protection, Guidance on ICE Implementation of Policy and Practice Changes Recommended by the Department of Justice Inspector General (Mar. 30, 2004).

8 C.F.R. §§ 1003.19(a) ("Custody and bond determinations made by [ICE] pursuant to 8 CFR part 1236 may be reviewed by an Immigration Judge pursuant to 8 CFR part 1236."), 1236.1(d)(1) (providing that the alien may "request amelioration of the conditions under which he or she may be released"). An IJ, however, may not determine an alien's custody status upon his own motion. See Matter of P-C-M-, 20 I. & N. Dec. 432, 434 (BIA 1991) (noting that the regulations "only provide authority for the immigration judge to redetermine custody status upon application by the [alien] or his representative"). In addition, if the alien has been released from custody and seeks to challenge ICE's conditions of release, he must file an "application for amelioration of the terms of release" before the IJ within seven days of release from ICE custody. 8 C.F.R. § 1236.1(d)(1). After expiration of that seven-day period, the alien may request review of the conditions of his release with ICE officials. Id. § 1236.1(d)(2). The alien may subsequently appeal ICE's decision to the Board of Immigration Appeals within 10 days of the decision. Id. § 1236.1(d)(3)(ii).

See Jennings v. Rodriguez, 138 S. Ct. 830, 847 (2018) (rejecting Ninth Circuit's conclusion that INA Section 236(a) requires periodic bond hearings every six months in which DHS must prove by clear and convincing evidence that the alien's continued detention is justified).

8 C.F.R. § 1003.19(d).

Id. § 1236.1(d)(1). The IJ's custody determination may be based on any information available to the IJ or that is presented by the alien or ICE. Id. § 1003.19(d). The IJ's decision "shall be entered on the appropriate form at the time such decision is made and the parties shall be informed orally or in writing of the reasons for the decision." Id. § 1003.19(f).

Id. § 1003.19(e). Additionally, if ICE seeks to change an alien's custody status during the removal proceedings (e.g., changing the custody location, releasing the alien from custody, or taking the alien into custody), the agency must immediately notify the immigration court in writing. Id. §§ 1003.19(g), 1236.1(f).

Id. §§ 1003.1(d)(1), 1236.1(d)(3)(i); see also R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 172 (D.D.C. 2015) ("[T]he alien has the options of requesting a custody redetermination from an [IJ] within the Department of Justice and appealing an adverse redetermination decision to the [BIA]").

8 C.F.R. § 1236.1(d)(4).

Id. § 1003.19(i)(1).

Id. § 1003.19(i)(2). But to preserve the automatic stay, DHS must file an appeal to the BIA within 10 business days of the IJ's order. Id. § 1003.6(c)(1). In addition, when DHS invokes an automatic stay of the IJ's order, the IJ must prepare a written decision explaining the custody determination within five business days after being advised that DHS filed its notice of appeal (or, in exigent circumstances, as soon as practicable thereafter, but not to exceed five additional business days). Id. § 1003.6(c)(2). If the BIA has not yet issued a decision, the automatic stay will expire 90 days after the filing of the appeal (unless the BIA grants the alien's motion for an extension of the briefing schedule, in which case the BIA's order will toll the IJ's order for an additional 90 days). Id. § 1003.6(c)(4). If the BIA does not issue a custody decision within the period of the automatic stay, DHS may still request a discretionary stay of the IJ's order. Id. § 1003.6(c)(5).

See Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10,312, 10,360 (Mar. 6, 1997) (codified at 8 C.F.R. §§ 236.1(c)(8), 1236.1(c)(8)). See also Matter of D-J-, 23 I. & N. Dec. 572, 575 (A.G. 2003) (recognizing that "section 236(a) does not give detained aliens any right to release on bond," and that the statute simply gives the government authority to release an alien if it determines "in the exercise of broad discretion, that the alien's release on bond is warranted.") (emphasis in original).

8 C.F.R. §§ 236.1(c)(8), 1236.1(c)(8). This regulatory standard also applies to custody determinations by IJs at bond hearings. See Matter of Adeniji, 22 I. & N. Dec. 1102, 1112 (BIA 1999), abrogated on other grounds by Pensamiento v. McDonald, 315 F. Supp. 3d 684 (D. Mass. 2018)).

Matter of Urena, 25 I. & N. Dec. 140, 141 (BIA 2009); see also Matter of Fatahi, 26 I. & N. Dec. 791, 793 (BIA 2016) ("An alien who seeks a change in custody status must establish to the satisfaction of the Immigration Judge and the Board that he is not 'a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk.'") (quoting Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006)).

See Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011) ("[W]e hold that the government must prove by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond"); Padilla v. U.S. Immigration and Customs Enforcement, 387 F. Supp. 3d 1219, 1232 (W.D. Wash. 2019), appeal docketed, No. 19-35565 (9th Cir. July 5, 2019) (ordering government to require DHS to prove that unlawful entrants should remain detained pending consideration of their asylum applications); Lett v. Decker, 346 F. Supp. 3d 379, 389 (S.D.N.Y. 2018) ("[T]he Government must prove by clear and convincing evidence that Petitioner's continued detention is justified."); Cortez v. Sessions, 318 F. Supp. 3d 1134, 1147 (N.D. Cal. 2018) ("Mr. Solano is entitled to a bond hearing at which DHS must justify his continued detention by establishing by clear and convincing evidence that he is a flight risk or a danger to the community."); Pensamiento, 315 F. Supp. 3d at 692 ("[T]his Court holds that the Constitution requires placing the burden of proof on the government in § 1226(a) custody redetermination hearings. Requiring a noncriminal alien to prove that he is not dangerous and not a flight risk at a bond hearing violates the Due Process Clause.").

This report references a number of decisions by federal appellate courts of various regional circuits. For purposes of brevity, references to a particular circuit in the body of this report (e.g., the Ninth Circuit) refer to the U.S. Court of Appeals for that particular circuit.

Singh, 638 F.3d at 1203. Under the "clear and convincing evidence" standard, a party must present evidence showing that its factual contentions are "highly probable." Colorado v. New Mexico, 467 U.S. 310, 316 (1984).

Jennings v. Rodriguez, 138 S. Ct. 830, 847–48 (2018).

See Darko v. Sessions, 342 F. Supp. 3d 429, 434–35 (S.D.N.Y. 2018) ("Thus, while the Supreme Court held that § 1226(a) does not mandate that a clear and convincing evidence burden be placed on the government in bond hearings, it left open the question of whether the Due Process Clause does.").

See Matter of D-J-, 23 I. & N. Dec. 572, 576 (A.G. 2003) ("[T]he INA does not limit the discretionary factors that may be considered by the Attorney General in determining whether to detain an alien pending a decision on asylum or removal."); see also Carlson v. Landon, 342 U.S. 524, 540–41 (1952) (holding that an IJ's custody determination must simply have a "reasonable foundation").

Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006), abrogated on other grounds by Pensamiento v. McDonald, 315 F. Supp. 3d 684 (D. Mass. 2018)) (citing Matter of Saelee, 22 I. & N. Dec. 1258 (BIA 2000); Matter of Drysdale, 20 I. & N. Dec. 815, 817 (BIA 1994); Matter of Andrade, 19 I. & N. Dec. 488, 489 (1987)). The BIA has determined that the IJ "may choose to give greater weight to one factor over others, as long as the decision is reasonable." Id. See also Prieto-Romero v. Clark, 534 F.3d 1053, 1066 (9th Cir. 2008) (stating that an IJ should consider the factors set forth in Matter of Guerra in deciding whether to release an alien on bond).

See e.g., Matter of Fatahi, 26 I. & N. Dec. 791, 795 (BIA 2016) (evidence that alien had entered the United States with a passport stolen by terrorist groups demonstrated that he posed a danger to the community); Matter of D-J-, 23 I. & N. Dec. at 579–81 (ruling that alien who unlawfully entered the United States by sea and evaded law enforcement presented a flight risk and that his release would encourage "unlawful mass migrations" and threaten national security); Matter of Saelee, 22 I. & N. Dec. at 1262–63 (history of violent criminal offenses and lack of remorse militated against alien's release from custody); Matter of Drysdale, 20 I. & N. Dec. at 818 (upholding $20,000 bond determination where alien had moved from his parental home, committed a serious drug trafficking crime, and was ineligible for any relief from deportation).

Matter of Guerra, 24 I. & N. Dec. at 40–41.

Matter of Fatahi, 26 I. & N. Dec. at 794–95. But see Singh v. Holder, 638 F.3d 1196, 1206 (9th Cir. 2011) ("[N]ot all criminal convictions conclusively establish that an alien presents a danger to the community, even where the crimes are serious enough to render the alien removable. For example, some orders of removal may rest on convictions for relatively minor, non-violent offenses such as petty theft and receiving stolen property. Moreover, a conviction could have occurred years ago, and the alien could well have led an entirely law-abiding life since then. In such cases, denial of bond on the basis of criminal history alone may not be warranted.").

8 C.F.R. § 1003.19(d).

Matter of Adeniji, 22 I. & N. Dec. 1102, 1115 (BIA 1999), abrogated on other grounds by Pensamiento v. McDonald, 315 F. Supp. 3d 684 (D. Mass. 2018)).

8 C.F.R. §§ 1003.19(h)(2)(i), 1236.1(c)(11); see Matter of X-K-, 23 I. & N. Dec. 731, 731 (BIA 2005) ("Immigration Judges have custody jurisdiction over aliens in [formal] removal proceedings, with specifically designated exceptions."), overruled on other grounds by Matter of M-S-, 27 I. & N. Dec. 509 (A.G. 2019).

Matter of X-K-, 23 I. & N. Dec. at 732.

8 C.F.R. § 1003.19(h)(2)(i); see Matter of Joseph, 22 I. & N. Dec. 799, 802 (1999) ("The regulations generally do not confer jurisdiction on Immigration Judges over custody or bond determinations respecting those aliens subject to mandatory detention, such as aggravated felons."). The regulations also include, among the classes of aliens over whom IJs lack custody jurisdiction, aliens in pre-IIRIRA exclusion proceedings (i.e., arriving aliens who were denied admission before April 1, 1997), and aliens in pre-IIRIRA deportation proceedings (i.e., aliens physically present in the United States who were charged with deportability before April 1, 1997) who were subject to mandatory detention based on an aggravated felony conviction. 8 C.F.R. 1003.19(h)(2)(i). In addition, the BIA has held that aliens who have been admitted into the United States under the visa waiver program (VWP) (a special program that allows aliens from certain designated countries to enter the United States for a period of up to 90 days without first obtaining a visa), see 8 U.S.C. § 1187(a), and who are placed in asylum-only proceedings after being found subject to removal, are ineligible for bond hearings because such aliens are not placed in formal removal proceedings. Matter of A-W-, 25 I. & N. 45, 46-47 (BIA 2009). Federal district courts, though, have split as to whether VWP entrants may be released on bond if they are detained pending efforts to remove them. Compare e.g., Szentkiralyi v. Ahrendt, No. 17-1889, 2017 WL 3477739, *4-*5 (D.N.J. 2017) (ruling that IJ had authority to conduct bond hearing for VWP entrant), with Kim v. Obama, No. EP–12–CV–173–PRM, 2012 WL 10862140, *2 (W.D. Tex. 2012) (ruling that IJ lacked jurisdiction to consider bond for VWP entrant).

8 C.F.R. § 1003.19(h)(2)(ii). Further, DHS retains the discretion to parole arriving aliens into the United States "for urgent humanitarian reasons or significant public benefit." 8 U.S.C. § 1182(d)(5)(A); see Matter of Castillo-Padilla, 25 I. & N. Dec. 257, 259 (BIA 2010) (describing humanitarian parole). See also infra at 22 (discussing the detention of arriving aliens and humanitarian parole).

8 C.F.R. § 1003.19(h)(2)(ii). See infra at 18 (discussing IJ's authority to review whether aliens detained under INA Section 236(c) properly fall within the scope of that statute).

8 C.F.R. §§ 1003.19(a), 1236.1(d)(1), 1236.1(d)(3)(i).

8 U.S.C. § 1226(e). See Darko v. Sessions, 342 F. Supp. 3d 429, 433 (S.D.N.Y. 2018) ("The sole forum for an appeal from an IJ's bond determination is the BIA.").

INS v. St. Cyr, 533 U.S. 289, 311 (2001); see also Demore v. Kim, 538 U.S. 510, 517 (2003) ("[W]here a provision precluding review is claimed to bar habeas review, the Court has required a particularly clear statement that such is Congress' intent.").

Demore, 538 U.S. at 517 ("Section 1226(e) contains no explicit provision barring habeas review, and we think that its clear text does not bar respondent's constitutional challenge to the legislation authorizing his detention without bail."). See also Zadvydas v. Davis, 533 U.S. 678, 688 (2001) ("We conclude that § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.").

Demore, 538 U.S. at 516–17; see also Jennings v. Rodriguez, 138 S. Ct. at 830, 841 (2018) (holding that challenges to "the extent of the Government's detention authority" do not fall within the scope of INA Section 236(e)'s judicial review bar).

See e.g., Sylvain v. Att'y Gen. of the United States, 714 F.3d 150, 155 (3d Cir. 2013) (holding that INA Section 236(e) did not bar judicial review of whether immigration officials had statutory authority to detain alien); Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) ("[C]laims that the discretionary [detention] process itself was constitutionally flawed are 'cognizable in federal court on habeas because they fit comfortably within the scope of [the federal habeas statute].'") (quoting Gutierrez–Chavez v. INS, 298 F.3d 824, 829 (9th Cir. 2002)); Al-Siddiqi v. Achim, 531 F.3d 490 (7th Cir. 2008) (INA Section 236(e) "strips us of our jurisdiction to review judgments designated as discretionary but does not deprive us of our authority to review statutory and constitutional challenges."); Sierra v. INS, 258 F.3d 1213, 1217–18 (10th Cir. 2001) ("We hold that § 1226(e) does not 'speak[ ] with sufficient clarity to bar jurisdiction pursuant to the general habeas statute.'") (alteration in original) (quoting INS v. St. Cyr, 533 U.S. 289, 313 (2001)); Pensamiento v. McDonald, 315 F. Supp. 3d 684, 688 (D. Mass. 2018) ("What § 1226(e) does not bar, however, are constitutional challenges to the immigration bail system."); Louisaire v. Muller, 758 F. Supp. 2d 229, 234 (S.D.N.Y. 2010) (considering alien's claim that ICE detained him without bond "pursuant to an erroneous interpretation of [INA] Section 236(c)").

Demore, 538 U.S. at 516–17; Zadvydas, 533 U.S. at 688; see also Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) ("As we have held, this limitation applies only to 'discretionary' decisions about the 'application' of § 1226 to particular cases.").

Jennings, 138 S. Ct. at 841.

8 U.S.C. § 1252(b)(9).

Preap, 139 S. Ct. at 962; Jennings, 138 S. Ct. at 841.

Jennings, 138 S. Ct. at 840. The Court reasoned that such an "expansive interpretation" of the statute "would lead to staggering results." Id. The Court noted, for example, that a detained alien's claim of assault against a guard technically "arises from" DHS's decision to remove him, "[b]ut cramming judicial review of those questions into the review of final removal orders would be absurd." Id. Further, the Court declared, interpreting INA § 242(b)(9) as barring review of any claim literally arising from an action to remove an alien would render claims of prolonged detention unreviewable because the allegedly unlawful detention would have already occurred by the time of the final order of removal; and in some cases, a final removal order may never be entered, thus foreclosing any opportunity for judicial review of the challenged detention. Id.

Preap, 139 S. Ct. at 962; Jennings, 138 S. Ct. at 841.

8 U.S.C. § 1226(c); see Zadvydas v. Davis, 533 U.S. 678, 683 (2001) ("While removal proceedings are in progress, most aliens may be released on bond or paroled."); Jennings, 138 S. Ct. at 837 (recognizing that INA Section 236(c) "carves out a statutory category of aliens who may not be released" under Section 236(a)) (emphasis in original).

8 U.S.C. §§ 1182(a)(2), 1182(a)(3)(B), 1182(a)(3)(F), 1226(c)(1), 1227(a)(2)(A)(i), 1227(a)(2)(A)(ii), 1227(a)(2)(B), 1227(a)(2)(C), 1227(a)(2)(D), 1227(a)(4)(B). The BIA has held that an alien does not actually have to be charged with the ground that provides the basis for mandatory detention under INA Section 236(c) (e.g., aggravated felony) to be considered an alien who "is deportable" (or inadmissible) on that ground. Matter of Kotliar, 24 I. & N. Dec. 124, 126 (BIA 2007). For example, in Matter of Kotliar, the alien was only charged as deportable because he had remained in the United States longer than permitted, but was subject to mandatory detention under INA Section 236(c) because he had been convicted of theft offenses that were crimes involving moral turpitude. Id. at 124–26. The BIA held that, where the record reflects that an alien has committed any of the offenses enumerated in INA Section 236(c), the alien is subject to mandatory detention "without regard to whether [DHS] has exercised its prosecutorial discretion to lodge a charge based on the offense." Id. at 126.

8 U.S.C. § 1226(c)(1).

8 U.S.C. § 1226(c)(2); see Preap v. Johnson, 831 F.3d 1193, 1201 (9th Cir. 2016), vacated on other grounds, 139 S. Ct. 954 (2019) (observing that "§ 1226(a) provides for possible release on bond, while § 1226(c) forbids any release except under special circumstances concerning witness protection").

8 U.S.C. § 1226(c)(2).

Id.

Id. § 1226(a), (c)(1), (c)(2); 8 C.F.R. §§ 236.1(c)(11), 1003.19(h)(2)(i)(D), 1236.1(c)(11); see Sylvain v. Att'y Gen. of the United States, 714 F.3d 150, 152 (3d Cir. 2013) (stating that INA Section 236(c) requires detention of covered aliens "without any possibility of release while awaiting their removal proceedings."); Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 946 (2008) ("Unlike noncriminal aliens, who are detained under § 1226(a), aliens detained under § 1226(c) are not given a bond hearing before an IJ."). The Ninth Circuit, however, has construed the period of detention under INA Section 236(c) to end when the BIA issues a decision on appeal. Casas-Castrillon, 535 F.3d at 948. According to the court, if the alien remains detained pending judicial review of the BIA's decision (or pending remanded proceedings following a favorable judicial ruling), ICE only retains the authority to detain the alien under INA Section 236(a), and the alien may request a bond hearing to challenge any continued detention. Id. at 948–51.

8 C.F.R. § 1003.19(h)(2)(ii).

Matter of Joseph, 22 I. & N. Dec. 799, 800, 805 (BIA 1999).

Id. at 806; see also id. at 807 ("[I]n assessing whether an alien is 'properly included' in a mandatory detention category during a bond hearing taking place early in the removal process, the [IJ] must necessarily look forward to what is likely to be shown during the hearing on the underlying removal case."). If DHS had not charged the alien with removability based on an offense enumerated in INA Section 236(c), the IJ may "look at the record to determine whether it establishes that [the alien] has committed an offense and whether the offense would give rise to a charge of removability included in that provision." Matter of Kotliar, 24 I. & N. Dec. 124, 127 (BIA 2007) (emphasis in original).

Matter of Joseph, 22 I. & N. Dec. at 806, 809. In addition to permitting review of whether an alien is properly included within the scope of INA Section 236(c), DOJ regulations afford an alien detained under that provision with an opportunity to seek a redetermination of the conditions of custody before ICE. 8 C.F.R. § 1003.19(h)(2)(ii).

See Prerna Lal, Legal and Extra Legal Challenges to Immigrant Detention, 24 Asian Am. L. J. 131, 135 (2017) ("Advocates challenged the constitutionality of mandatory detention under § 1226(c) with varied success until the Supreme Court decision in Demore v. Kim [upholding the provision].").

Demore v. Kim, 538 U.S. 510, 513–14, 531 (2003).

Kim v. Ziglar, 276 F.3d 523, 539 (2002), rev'd sub nom. Demore v. Kim, 538 U.S. 510 (2003).

Id. at 526, 538–39. Apart from the Ninth Circuit, the Third, Fourth, and Tenth Circuits had also held that INA Section 236(c)'s mandatory detention requirement was unconstitutional. See Patel v. Zenski, 275 F.3d 299 (3d Cir. 2001), abrogated by Demore v. Kim, 538 U.S. 510 (2003); Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002), abrogated by Demore v. Kim, 538 U.S. 510 (2003); Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002), abrogated by Demore v. Kim, 538 U.S. 510 (2003). The Seventh Circuit, on the other hand, rejected a constitutional challenge to INA Section 236(c). Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999).

Demore, 538 U.S. at 513, 531.

Id. at 522, 526.

Id. at 513.

Id. at 527–30; see Zadvydas v. Davis, 533 U.S. 678, 682 (2001). For more discussion about the post-order of removal detention statute and the Zadvydas decision, see infra at 29.

Demore, 538 U.S. at 527–28 (emphasis in original).

Id. at 527.

Id. at 529.

See Tijani v. Willis, 430 F.3d 1241, 1252 (9th Cir. 2005) (Callahan, J., concurring) ("The constitutional limit, if any, to the duration of an alien's detention under § 1226, however, was left open by the Supreme Court in Demore."). However, in a concurring opinion in Demore, Justice Kennedy suggested that "since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as [Kim] could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified." Demore, 538 U.S. at 532 (Kennedy, J., concurring). In a separate concurrence, Justice O'Connor similarly described INA Section 236(c)'s authority to cover the mandatory detention of a criminal alien "during the limited duration of his or her removal proceedings." Id. at 533 (O'Connor, J., concurring).

See e.g., Diop v. ICE/Homeland Sec., 656 F.3d 221, 232 (3d Cir. 2011) ("Demore emphasized that mandatory detention pursuant to § 1226(c) lasts only for a 'very limited time' in the vast majority of cases."); Casas-Castrillon v. Dept. of Homeland Sec., 535 F.3d 942, 950 (9th Cir. 2008) ("We are skeptical that Demore's limited holding that Congress could permissibly authorize 'brief' detention without procedural protections can be extended to encompass the nearly seven-year detention at issue here."); Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2003) ("[T]he Court's discussion in [Demore] is undergirded by reasoning relying on the fact that Kim, and persons like him, will normally have their proceedings completed within in a short period of time and will actually be deported, or will be released.").

See Jennings v. Rodriguez, 138 S. Ct. 830, 842–43, 846–48, 851 (2018). Following Jennings, however, some lower courts have squarely confronted that question, ruling that the mandatory detention without bond of certain aliens pending formal removal proceedings is unconstitutional. See e.g., Padilla v. U.S. Immigration and Customs Enforcement, 387 F. Supp. 3d 1219, 1228–32 (W.D. Wash. 2019) (addressing constitutionality of detaining without bond aliens who unlawfully entered the United States pending consideration of their asylum claims). For more discussion about the Jennings decision and the indefinite detention of aliens pending removal proceedings, see infra at 39.

8 U.S.C. § 1226(c)(1) (emphasis added). Courts have construed the term "released" to mean that the alien is simply no longer in physical custody, regardless of whether the alien was sentenced to a prison term or probation. See Castaneda v. Souza, 810 F.3d 15, 27 n. 15 (1st Cir. 2015); Lora v. Shanahan, 804 F.3d 601, 610 (2d Cir. 2015), cert. granted and vacated on other grounds, 138 S. Ct. 1260 (2018); Sylvain v. Att'y Gen. of the United States, 714 F.3d 150, 161 (3d Cir. 2013). See also Matter of Kotliar, 24 I. & N. Dec. 124, 125 (BIA 2007) ("[S]ection 236(c)(1) of the Act expressly states that an alien is subject to mandatory detention and shall be taken into custody when the alien is released, without regard to whether he was released 'on parole, supervised release, or probation.'") (quoting 8 U.S.C. § 1226(c)(1)).

8 U.S.C. § 1226(c)(2).

Nielsen v. Preap, 139 S. Ct. 954, 971 (2019).

Id. at 963–64.

Id. at 965 (emphasis in original).

Id.

Id. at 967.

Id. at 967–68; see also United States v. Montalvo-Murillo, 495 U.S. 711, 717 (1990) ("We hold that a failure to comply with the first appearance requirement does not defeat the Government's authority to seek detention of the person charged.").

Preap, 139 S. Ct. at 967 (quoting Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003)) (internal quotation omitted).

Id. at 968. The Court noted that ICE could miss a judicially imposed mandatory detention deadline for various reasons, including because state and local officials might not notify ICE when an alien is released from criminal custody. Id. See also infra at 51 (discussing immigration detainers).

Id. at 971–72; see also Preap v. Johnson, 831 F.3d 1193, 1206 (9th Cir. 2016), rev'd, 139 S. Ct. 954 (2019). In a dissenting opinion, Justice Breyer argued that INA Section 236(c)'s mandatory detention scheme applied only to aliens who are detained by ICE "when . . . released" from criminal custody. Preap, 139 S. Ct. at 978 (Breyer, J., dissenting). Justice Breyer argued that the words "take into custody . . . when the alien is released" found in INA Section 236(c)(1) also "describe" an alien subject to mandatory detention. Id. at 979–80 (Breyer, J., dissenting). Further, Justice Breyer argued, construing Section 236(c) to require the detention of aliens without bond, even if they "have long since paid their debt to society," would "create serious constitutional problems." Id. at 982, 985 (Breyer, J., dissenting) (The majority opinion had declined to construe INA § 236(c) to avoid these constitutional concerns because, in the majority's view, the statute unambiguously required detention regardless of when the alien was released from criminal custody.) Unlike the Ninth Circuit, however, Justice Breyer would have interpreted "when the alien is released" as requiring an alien's detention to occur no more than six months after release from criminal custody. Id. at 984 (Breyer, J, dissenting).

8 U.S.C. § 1225(a)(1). A returning LPR may also be considered an applicant for admission in some circumstances, such as when the LPR has abandoned his or her status, has been away from the United States for more than 180 days, or has committed certain criminal offenses. Id. § 1101(a)(13)(C).

Id. § 1225(b)(1)(B), (2)(A). The statute provides that all applicants for admission "shall be inspected by immigration officers." Id. § 1225(a)(3). See also Matter of Rosa Isela Velasquez-Cruz, 26 I. & N. Dec. 458, 462 n. 5 (BIA 2014) ("We note that regardless of whether an alien who illegally enters the United States is caught at the border or inside the country, he or she will still be required to prove eligibility for admission.").

8 U.S.C. § 1225(a)(1), (b)(1)(B), (2)(A); 8 C.F.R. § 235.3(b), (c).

Id. § 1225(b)(1)(A)(i) ("If an immigration officer determines that an alien . . . is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution."), (2)(A) ("[I]n the case of an alien who is an applicant for admission, if the examining officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title."). U.S. Customs and Border Protection (CBP), the DHS component with primary responsibility for immigration enforcement along the border and at designated ports of entry, typically takes the lead role in processing applicants for admission, from the initial inspection or apprehension of the alien through the issuance, if applicable, of an order of expedited removal. See 6 U.S.C. § 211(c) (listing functions of CBP). Within CBP, the U.S. Border Patrol is the agency component primarily charged with the apprehension of aliens unlawfully entering the United States or who have recently entered the country unlawfully away from a designated point of entry. See id. § 211(e)(3). ICE also regularly plays a significant role, such as when the alien seeks asylum or is placed in formal removal proceedings, and ICE takes responsibility for the alien's detention and removal. See Immigration Enforcement, U.S. Dep't of homeland security, https://www.dhs.gov/topic/immigration-enforcement-overview (last published Aug. 6, 2018); Immigration Enforcement-Removal, U.S. Immigration and Customs Enforcement, https://www.ice.gov/removal (last updated Aug. 2, 2019).

8 U.S.C. § 1225(b)(1)(A)(i); see also id. § 1182(a)(6)(C), (7).

Id. § 1225(b)(1)(A)(i), (iii).

See Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10,312, 10,313–14 (Mar. 6, 1997); Notice Designating Aliens Subject to Expedited Removal under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 Fed. Reg. 68,924 (Nov. 13, 2002); Notice Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004). For more discussion about expedited removal, see CRS Report R45314, Expedited Removal of Aliens: Legal Framework, by Hillel R. Smith.

See Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409 (July 23, 2019). A lawsuit challenging DHS's nationwide expansion of expedited removal is currently pending in the U.S. District Court for the District of Columbia. See Complaint for Declaratory and Injunctive Relief, Make the Road New York v. McAleenan, No. 1:19-cv-02369 (D.D.C. Aug. 6, 2019). For more information about the expansion of expedited removal, see CRS Legal Sidebar LSB10336, The Department of Homeland Security's Nationwide Expansion of Expedited Removal, by Hillel R. Smith.

8 U.S.C. § 1225(b)(1)(A)(i). Additionally, if the alien claims to be a U.S. citizen, an LPR, an admitted refugee, or a person granted asylum, he may seek administrative review of that claim. Id. § 1225(b)(1)(C); 8 C.F.R. §§ 235.3(b)(5)(i), 235.3(b)(5)(iv), 235.6(a)(2)(ii).

Reportedly, under a U.S. Customs and Border Protection program, some Border Patrol officers are being trained to conduct these initial screenings. See U.S. Will Assign Dozens of Border Agents to Migrant Asylum Interviews, Reuters (May 9, 2019), http://www.reuters.com/article/us-usa-immigration/u-s-will-assign-dozens-of-border-agents-to-migrant-asylum-interviews-idUSKCN1SF2N0.

8 U.S.C. § 1225(b)(1)(A)(ii); 8 C.F.R. § 235.3(b)(4). The INA defines a "credible fear of persecution" as "a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum." 8 U.S.C. § 1225(b)(1)(B)(v); see also 8 C.F.R. § 208.30(e)(2). A "credible fear of torture" is defined by regulation as "a significant possibility that [the alien] is eligible for [protection] under the Convention Against Torture." 8 C.F.R. § 208.30(e)(3).

8 U.S.C. § 1225(b)(1)(B)(ii); 8 C.F.R. §§ 208.30(f), 235.6(a)(1)(ii). If the asylum officer determines that the alien does not have a credible fear of persecution or torture, the alien may request review of that finding before an IJ. 8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. §§ 208.30(g)(1)(i), 235.6(a)(2)(i), 1003.42(a), 1208.30(g)(2)(i). If the IJ finds that the alien has a credible fear of persecution or torture, the IJ will vacate the asylum officer's negative credible fear determination, and the alien will be placed in formal removal proceedings under INA § 240. 8 C.F.R. §§ 235.6(a)(1)(iii), 1003.42(f), 1208.30(g)(2)(iv)(B).

See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) ("Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed."); 8 C.F.R. § 235.3(b)(2)(iii) ("An alien whose inadmissibility is being considered under this section or who has been ordered removed pursuant to this section shall be detained pending determination and removal"), (4)(ii) ("Pending the credible fear determination by an asylum officer and any review of that determination by an [IJ], the alien shall be detained."), (5)(i) (providing that an alien whose claim of being a U.S. citizen, LPR, asylee, or refugee cannot be verified "shall be detained pending review of the expedited removal order under this section").

6 U.S.C. § 211(m)(3) (describing CBP detention as "short-term detention" at a processing center); Aliens Subject to a Bar on Entry under Certain Presidential Proclamations, 83 Fed. Reg. 55,934, 55,949 (Nov. 9, 2018) (describing initial CBP and U.S. Border Patrol processing and transfer to ICE custody).

8 U.S.C. § 1182(d)(5)(A); see also 8 C.F.R. § 235.3(b)(2)(iii), (4)(ii), (5)(i). Parole is not considered a lawful admission into the United States or a determination of admissibility, and the decision whether to grant parole is entirely subject to DHS's discretion and may be revoked at any time. 8 U.S.C. §§ 1101(a)(13)(B), 1182(d)(5)(A).

8 C.F.R. § 235.3(b)(2)(iii), (4)(ii), (5)(i).

8 U.S.C. § 1225(b)(1)(B)(ii).

See Damus v. Nielsen, 313 F. Supp. 3d 317, 323–24 (D.D.C. 2018) (describing ICE's custody authority over aliens who have shown a credible fear of persecution).

8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. §§ 208.30(f), 212.5(b); see also Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture ¶ 4.2, U.S. Immigration & Customs Enforcement (Dec. 8, 2009), https://www.ice.gov/doclib/dro/pdf/11002.1-hd-parole_of_arriving_aliens_found_credible_fear.pdf. While DHS has broad discretion to decide whether to grant parole, some lower courts have held or otherwise declared that DHS may not consider immigration deterrence as a factor in evaluating individual parole requests. Aracely v. Nielsen, 319 F. Supp. 3d 110, 153–54 (D.D.C. 2018); see also Damus, 313 F. Supp. 3d at 341 (holding that DHS's practice of categorically denying parole without abiding by its own parole directives was unlawful); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 190 (D.D.C. 2015) (holding that DHS's adoption of a "No-Release Policy" aimed at deterring mass migration was not a permissible justification for continued detention of aliens who had shown a credible fear of persecution).

8 C.F.R. §§ 212.5(b), 236.3(a). An alien's continued detention is not considered in the public interest if he establishes his identity to an immigration officer, and shows that he presents neither a flight risk nor a danger to the community. See Parole of Arriving Aliens, supra note 168, at ¶¶ 4.3, 8.3(2); see also 8 C.F.R. § 212.5(d) (providing that, in deciding whether to grant parole, agency officials may consider "relevant factors," including whether there are reasonable assurances that the alien will appear at all hearings and/or depart the United States when required to do so; the alien's community ties such as close relatives with known addresses; and any agreement to reasonable conditions such as periodic reporting requirements). If parole is denied, agency guidelines instruct that the immigration officer should advise the alien that he may request reconsideration based on changed circumstances or additional evidence relating to the alien's identity, security risk, or risk of absconding. Parole of Arriving Aliens, supra note 168 at ¶ 8.2.

8 C.F.R. § 212.5(e)(1).

Id. § 212.5(e)(2)(i).

Matter of X-K-, 23 I. & N. Dec. 731, 732, 736 (BIA 2005), overruled by Matter of M-S-, 27 I. & N. Dec. 509 (A.G. 2019).

Id. at 732, 735–36; see also 8 C.F.R. §§ 236.1(d)(1), 1003.19(a) (generally permitting an alien to seek an IJ's review of an initial custody determination by DHS), 1003.19(h)(2)(i) (listing classes of aliens who may not seek custody determinations before an IJ, including arriving aliens in removal proceedings). For additional discussion about limitations to administrative review of DHS's custody determinations, see supra at 14.

Matter of X-K-, 23 I. & N. Dec. at 735.

Matter of M-S-, 27 I. & N. Dec. 509 (A.G. 2019). The Attorney General exercised his appellate authority to review the BIA's decision under 8 C.F.R. § 1003.1(h)(1)(i), which authorizes the Attorney General to direct the BIA to refer cases to him for review. Matter of M-S-, 27 I. & N. Dec. 476 (A.G. 2018).

Matter of M-S-, 27 I. & N. Dec. at 515–17. The Attorney General recognized that INA Section 236(a) generally permits the release of aliens on bond, but concluded that it "provides an independent ground for detention that does not limit DHS's authority [under INA Section 235(b)(1)] to detain aliens originally placed in expedited removal, who, after the credible-fear stage, 'shall be detained' either for further adjudication of their asylum claims or for removal." Id. at 516. Thus, INA Sections 235(b)(1) and 236(a) "can be reconciled only if they apply to different classes of aliens." Id. Moreover, the Attorney General determined, because the INA expressly provides for the release of applicants for admission only on parole, it "cannot be read to contain an implicit exception for bond." Id. at 517.

Id. at 517–18; see Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) (concluding that INA Section 235(b)'s provisions "mandate detention until a certain point and authorize release prior to that point only under limited circumstances."). For further discussion of the Supreme Court's decision in Jennings, see infra at 39.

Matter of M-S-, 27 I. & N. Dec. at 518.

Padilla v. U.S. Immigration and Customs Enforcement, 387 F. Supp. 3d 1219, 1232 (W.D. Wash. 2019), appeal docketed, No. 19-35565 (9th Cir. July 5, 2019). The court reasoned that aliens who have entered the United States "are entitled to due process protections," including the "freedom from unnecessary incarceration." Id. at 1229 (citing Zadvydas v. Davis, 533 U.S. 678, 690 (2001); United States v. Raya-Vaca, 771 F.3d 1195, 1202 (9th Cir. 2014)).

Id. at *10.

See Padilla v. U.S. Immigration and Customs Enforcement, No. 19-35565 (9th Cir. July 5, 2019).

Padilla v. U.S. Immigration and Customs Enforcement, No. 19-35565 (9th Cir. July 22, 2019) (order granting emergency motion for a stay in part).

Id.

Id.

See Padilla v. U.S. Immigration and Customs Enforcement, 2019 WL 1056466, *1 (W.D. Wash. Mar. 6, 2019) (certifying a nationwide "bond hearing class" consisting of "all detained asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings under INA Section 235(b), were determined to have a credible fear of persecution, but are not provided a bond hearing . . . within seven days of requesting a bond hearing.").

Matter of M-S-, 27 I. & N. Dec. at 518–19. Generally, there is no administrative or judicial review of DHS's decision whether to grant parole. See 8 U.S.C. § 1252(a)(2)(B)(ii) (providing that no court shall have jurisdiction to review "any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) [asylum] of this title."); Rodriguez v. Robbins, 804 F.3d 1060, 1081 (9th Cir. 2015), rev'd sub nom. Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ("Because parole decisions under § 1182 are purely discretionary, they cannot be appealed to IJs or courts."). But some courts have addressed constitutional and statutory challenges to the procedures and policies governing parole decisions, and distinguished such claims from challenges to individual parole determinations. See e.g., Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 134–36 (D.D.C. 2018) (reviewing DHS's failure to follow parole procedures and the agency's consideration of deterrence as a factor in evaluating parole requests); Damus v. Nielsen, 313 F. Supp. 3d 317, 327 (D.D.C. 2018) ("[T]he asylum-seekers do not rest their case on a challenge to discrete parole determinations. Rather, they allege that ICE is, as a matter of general course, not complying with the policies and procedures of the Parole Directive."); Abdi v. Duke, 280 F. Supp. 3d 373, 384 (W.D.N.Y. 2017) ("Petitioners are asking that this Court ensure that Respondents comply with certain policies and procedures in making that parole decision—issues that are beyond the jurisdictional bar of § 1252(a)(2)(B)(ii)."). See also supra at 15 (Judicial Review of Custody Determinations).

8 U.S.C. § 1225(b)(2); see also Jennings, 138 S. Ct. at 837 (noting that 8 U.S.C. § 1225(b)(2) "is broader" and applies to applicants for admission "not covered by § 1225(b)(1)").

8 U.S.C. § 1225(b)(2)(A) (inspection of other aliens); 8 C.F.R. § 235.3(b)(3) ("If an alien appears to be inadmissible under other grounds contained in section 212(a) of the Act, and if [DHS] wishes to pursue such additional grounds of inadmissibility, the alien shall be detained and referred for a removal hearing before an immigration judge pursuant to sections 235(b)(2) and 240 of the Act for inquiry into all charges."), (5) (providing that, if a claim to LPR, refugee, or asylee status is verified, the alien is not subject to expedited removal but may be placed in formal removal proceedings if appropriate).

See 8 U.S.C. § 1225(b)(2) (indicating that aliens who are not subject to expedited removal "shall be detained" pending formal removal proceedings); 8 C.F.R. § 235.3(b)(1)(ii) ("An alien who was not inspected and admitted or paroled into the United States but who establishes that he or she has been continuously physically present in the United States for the 2-year period immediately prior to the date of determination of inadmissibility shall be detained in accordance with section 235(b)(2) of the Act for a proceeding under section 240 of the Act.").

8 U.S.C. § 1225(b)(2)(A); 8 C.F.R. § 235.3(b)(3).

See 8 U.S.C. § 1182(d)(5)(A) (parole authority); 8 C.F.R. §§ 212.5(b) (listing criteria for parole of arriving aliens placed in formal removal proceedings), 235.3(c) ("[A]ny arriving alien who appears to the inspecting officer to be inadmissible, and who is placed in removal proceedings pursuant to section 240 of the Act shall be detained in accordance with section 235(b) of the Act.").

See Jennings, 138 S. Ct. at 842 ("Read most naturally, §§ 1225(b)(1) and (b)(2) mandate detention of applicants for admission until certain proceedings have concluded . . . [a]nd neither § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about bond hearings."). Further, as discussed in this report, if the alien is inadmissible based on a criminal or terrorist-related offense enumerated in INA Section 212(a)(2) or 212(a)(3)(B), the alien will be subject to mandatory detention under INA Section 236(c), and may not be released from custody except for witness protection purposes. See 8 U.S.C. § 1226(c)(1).

8 U.S.C. § 1231(a); see Zadvydas v. Davis, 533 U.S. 678, 683 (2001) (discussing post-order of removal detention statute and regulations).

8 U.S.C. § 1231(a)(2) ("During the removal period, [DHS] shall detain the alien."), (6) ("An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by [DHS] to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).").

See Zadvydas, 533 U.S. at 682; Clark v. Martinez, 543 U.S. 371, 378 (2005).

8 U.S.C. § 1231(a)(1)(A).

Id. § 1231(a)(1)(B) (emphasis added).

An order of removal becomes administratively final when (1) the BIA issues a decision affirming the order; (2) the alien waives appeal of the order; (3) the period in which the alien is permitted to appeal the order to the BIA expires and the alien does not file an appeal within that time; (4) an IJ orders an alien removed in the alien's absence (e.g., because the alien failed to appear at a hearing); or (5) if an IJ issues an alternate order of removal in connection with a grant of voluntary departure, the alien overstays the voluntary departure period or fails to timely post a required voluntary departure bond. Id. § 1101(a)(47)(B); 8 C.F.R. § 1241.1.

An alien generally may file a petition for review of a final order of removal in the judicial circuit in which the Immigration Court proceedings were completed. 8 U.S.C. § 1252(b)(1), (2). The petition must be filed within 30 days of the final order of removal. Id. § 1252(b)(1).

See Prieto-Romero v. Clark, 534 F.3d 1053, 1059 (9th Cir. 2008) ("The statute makes clear that when a court of appeals issues a stay of removal pending its decision on an alien's petition for review of his removal order, the removal period begins only after the court denies the petition and withdraws the stay of removal.").

8 U.S.C. § 1231(a)(1)(B).

Id. § 1231(a)(2); see also 8 C.F.R. § 241.3(a) ("Once the removal period defined in section 241(a)(1) of the Act begins, an alien in the United States will be taken into custody pursuant to the warrant of removal."). DHS regulations also provide that "[a]ny bond previously posted will be canceled unless it has been breached or is subject to being breached." Id. § 241.3(b). Further, "[t]he filing of (or intention to file) a petition or action in a Federal court seeking review of the issuance or execution of an order of removal shall not delay execution of the Warrant of Removal except upon an affirmative order of the court." Id. § 241.3(c).

8 U.S.C. § 1231(a)(2).

See Memorandum from Bo Cooper, Gen. Counsel, Immigration & Naturalization Serv., to Reg'l Counsel for Distribution to District and Sector Counsel: Detention and Release during the Removal Period of Aliens Granted Withholding or Deferral of Removal (Apr. 21, 2000); Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. 56,967, 56,967 (Nov. 14, 2001).

See Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. at 56,967 ("Section 241(a)(2) of the Act governs detention of aliens during the statutory removal period; it generally mandates detention of criminal and terrorist aliens during that period.").

See supra note 204, Memorandum from Bo Cooper: Detention and Release during the Removal Period of Aliens Granted Withholding or Deferral of Removal. Withholding of removal and CAT protection are forms of protection for aliens who likely face persecution or torture in their home countries. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Generally, aliens who are statutorily ineligible for asylum (e.g., because of an aggravated felony conviction), may pursue withholding of removal (unless a statutory bar applies) or CAT protection. See generally 8 U.S.C. §§ 1158(a)(2), (b)(2), 1231(b)(3); 8 C.F.R. §§ 1208.13(c), 1208.16, 1208.17. But unlike a grant of asylum, which affords aliens an opportunity to pursue LPR status after one year, see 8 U.S.C. § 1159(b), a grant of withholding or CAT protection only precludes DHS from removing the alien to the country where he faces persecution or torture, and does not prevent the alien's removal to a third country. See Lin v. U.S. Dep't of Justice, 453 F.3d 99, 105 (2d Cir. 2006); 8 C.F.R. § 1208.16(f).

8 U.S.C. § 1231(a)(1)(C); see Diouf v. Mukasey, 542 F.3d 1222, 1230–31 (9th Cir. 2008) (concluding that alien's failure to cooperate with ICE's efforts to remove him warranted extension of 90-day removal period, and that 90-day clock restarted "following the latest date of documented obstruction"); but see Prieto-Romero v. Clark, 534 F.3d 1053, 1061 (9th Cir. 2008) (distinguishing "acts of obstruction" that warrant extension of 90-day removal period from "an alien's attempt to make use of legally available judicial review and remedies" that do not justify continued detention).

8 U.S.C. § 1231(a)(3). If the alien is released on an order of supervision, ICE may enroll the alien pursuant to its ATD program, which typically involves supervision by a contracting service and electronic monitoring (e.g., GPS, telephonic reporting). See U.S. Gov't Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness (2014). For more information about ATD, see CRS Report R45804, Immigration: Alternatives to Detention (ATD) Programs, by Audrey Singer.

8 C.F.R. § 241.5(a). The regulations specify that the conditions of supervised release are not limited to these requirements. Id. Further, "[a]n officer authorized to issue an order of supervision may require the posting of a bond in an amount determined by the officer to be sufficient to ensure compliance with the conditions of the order, including surrender for removal." Id. § 241.5(b). The immigration officer may also, in his or her discretion, grant employment authorization to the alien if the alien cannot be removed in a timely manner (e.g., because of the refusal of the country of removal to accept the alien), or the alien's removal is "impracticable or contrary to the public interest." 8 U.S.C. § 1231(a)(7); 8 C.F.R. § 241.5(c).

8 U.S.C. § 1231(a)(2), (3).

Id. § 1231(a)(6) (emphasis added).

Id. §§ 1182(a), 1227(a)(1)(C), (2), (4), 1231(a)(6) (emphasis added); 8 C.F.R. § 241.4(a); see also Zadvydas v. Davis, 533 U.S. 678, 682 (2001) (describing INA Section 241(a)(6) as "[a] special statute authoriz[ing] further detention if the Government fails to remove the alien during those 90 days.").

8 C.F.R. § 241.4(c)(1), (h)(1), (k)(1)(i). This initial custody review includes consideration of "the alien's records and any written information submitted in English" to the agency by or on behalf of the alien, as well as "any other relevant information relating to the alien or his or her circumstances and custody status." Id. § 241.4(h)(1). ICE officials may also interview the alien during the course of the custody determination. Id. The agency will send written notice to the alien 30 days before the custody review so that the alien may submit written information in support of his or her release. Id. § 241.4(h)(2).

Id. § 241.4(f), (h)(3).

Id. § 241.4(e); see also id. § 241.4(d)(1) (requiring alien to show "that his or her release will not pose a danger to the community or to the safety of other persons or to property or a significant risk of flight pending such alien's removal from the United States").

Id. § 241.4(j)(1); see also id. § 241.5 (listing the conditions of release pursuant to an order of supervision during 90-day removal period). In addition, ICE may condition release on the alien's placement with a close relative sponsor (e.g., an LPR or U.S. citizen parent, spouse, child, or sibling), or the alien's placement or participation in an approved halfway house, mental health project, or community project. Id. § 241.4(j)(2). ICE may also place the alien in an ATD program. See supra note 208. Further, as with aliens released during the 90-day removal period, ICE may grant employment authorization to aliens released after the end of that period. 8 C.F.R. § 241.4(j)(3); see also 8 U.S.C. § 1231(a)(7); 8 C.F.R. § 241.5(c) (specifying circumstances in which employment authorization may be provided).

8 C.F.R. § 241.4(k)(1)(ii).

Id. § 241.4(c)(2), (i)(1), (k)(2)(i). The HQPDU review "will ordinarily be conducted at the expiration of the three-month period after the 90-day review or as soon thereafter as practicable." Id. § 241.4(k)(2)(ii).

Id. § 241.4(k)(2)(iii). The HQPDU may schedule custody reviews "at shorter intervals" if warranted, and the alien detainee may request a custody determination "[n]ot more than once every three months in the interim between annual reviews," if conditions have substantially changed since the last review. Id. § 241.4(k)(2)(iii), (v). Conversely, custody review may be suspended or postponed if the alien's removal is practical and imminent. Id. § 241.4(k)(3).

See e.g., Boz v. United States, 248 F.3d 1299, 1300 (11th Cir. 2001), abrogated by Santiago-Lugo v. Warden, 785 F.3d 467 (11th Cir. 2015) (considering constitutional challenge to indefinite detention of alien pending unsuccessful efforts to execute final order of removal); Ho v. Greene, 204 F.3d 1045, 1049–50 (10th Cir. 2000), overruled in part by Zadvydas v. Davis, 533 U.S. 678 (2001) (same); Chi Thon Ngo v. INS, 192 F.3d 390, 392–93 (3d Cir. 1999) (same).

See Zadvydas, 533 U.S. 678 (2001).

Id. at 686. The Court consolidated for review two cases involving the prolonged post-order of removal detention of LPRs with criminal records. Id. at 684–86. In one of the cases, the Fifth Circuit had concluded that "the government may detain a resident alien based on either danger to the community or risk of flight while good faith efforts to effectuate the alien's deportation continue and reasonable parole and periodic review procedures are in place." Zadvydas v. Underdown, 185 F.3d 279, 297 (5th Cir. 1999), rev'd sub nom. 533 U.S. 678 (2001). In the other case, the Ninth Circuit had ruled that the government had the authority "to detain removable aliens only for a reasonable time beyond the ninety day removal period." Ma v. Reno. 208 F.3d 815, 830 (9th Cir. 2000), rev'd, 533 U.S. 678 (2001).

Zadvydas, 533 U.S. at 690.

Id. at 690–91.

Id. at 691, 696 (citing Kansas v. Hendricks, 521 U.S. 346, 368 (1997)). For example, the Court determined, indefinite detention might be warranted if the individual was a suspected terrorist or had a mental illness that made him particularly dangerous. Id. at 691.

Id.

Id. at 689, 697.

Id. at 692-93; see Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215–16 (1953).

Zadvydas, 533 U.S. at 693; see also id. ("It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders."). The Court also rejected the government's argument that the indefinite detention of aliens post-order of removal should be upheld given Congress's plenary power over immigration, noting "that power is subject to important constitutional limitations." Id. at 695.

Id. at 697–98.

Id. at 697.

The doctrine of constitutional avoidance instructs that, when an ambiguous statute raises "a serious doubt" as to its constitutionality, a court should determine whether the statute may be construed in a manner that avoids the constitutional question. Crowell v. Benson, 285 U.S. 22, 62 (1932).

Zadvydas, 533 U.S. at 699.

Id. at 701; see also Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n. 3 (11th Cir. 2002); Patel v. Zemski, 275 F.3d 299, 309 (3d Cir. 2001); Ma v. Ashcroft, 257 F.3d 1095, 1102 n. 5 (9th Cir. 2001) (interpreting Zadvydas as permitting a detention period of six months after a final order of removal, not after the 90-day removal period has ended).

Zadvydas, 533 U.S. at 701. Following Zadvydas, the Third and Ninth Circuits ruled that an alien subject to prolonged detention under INA Section 241(a)(6) (i.e., after six months post-order of removal) is entitled to a bond hearing before an IJ and must be released from custody unless the government proves that the alien is a flight risk or a danger to the community, even if the alien's continued detention is otherwise permitted by the statute. See Guerrero-Sanchez v. Warden York Co. Prison, 905 F.3d 208, 224–26 (3d Cir. 2018); Diouf v. Napolitano, 634 F.3d 1081, 1092 (9th Cir. 2011).

Clark v. Martinez, 543 U.S. 371, 378 (2005). As discussed above, INA Section 241(a)(6) specifies three categories of aliens who may be detained after the 90-day removal period, including aliens ordered removed who are inadmissible under INA Section 212(a). 8 U.S.C. § 1231(a)(6).

Id. at 379 ("It is indeed different from the question decided in Zadvydas, but because the statutory text provides for no distinction between admitted and nonadmitted aliens, we find that it results in the same answer.").

Id. at 378-79. The Court reasoned that to construe INA Section 241(a)(6) differently for each category of aliens covered by that same statute "would be to invent a statute rather than interpret one." Id. at 379.

Id. at 380. See also, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1982) ("This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.").

Martinez, 543 U.S. at 380 (emphasis in original). According to the Court, "[i]t is not unusual to give a statute's ambiguous language a limiting construction called for by one of the statute's applications, even though other of the statute's applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern." Id.

See Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. 56,967 (Nov. 14, 2001).

8 C.F.R. § 241.13(d)(1), (3). Although the regulation specifies that the alien may submit the request any time after a final order of removal, ICE "may, in the exercise of its discretion, postpone its consideration of such a request until after expiration of the [90-day] removal period." Id. § 241.13(d)(3); see also id. § 241.13(b)(3)(ii) (providing that the "special review procedures" do not apply to "[a]liens subject to a final order of removal who are still within the [90-day] removal period, including aliens whose removal period has been extended for failure to comply" with efforts to secure travel documents).

The regulations instruct the HQPDU to consider, among other factors, the alien's efforts to comply with the order of removal, ICE's past efforts to remove aliens to the country in question or third countries, ICE's ongoing efforts to remove the alien, the reasonably foreseeable results of those efforts, and the State Department's views concerning the prospects for removal. Id. § 241.13(e)(2), (f). The regulations specify that the alien will remain subject to the general procedures and standards governing post-order of removal detention pending the agency's decision. Id. § 241.13(b)(1). ICE may, pursuant to those standards, release an alien under an order of supervision regardless of the likelihood of the alien's removal in the reasonably foreseeable future. Id.

Id. § 241.13(g)(1), (h)(1). The regulations authorize ICE to return an alien to custody if the alien violates any conditions of release, or, due to changed circumstances, there is a significant likelihood that the alien may be removed in the reasonably foreseeable future. Id. § 241.13(i)(1), (2).

Id. § 241.13(g)(2). The alien may submit a renewed request for release six months after ICE's last denial of release. Id. § 241.13(j).

Id. §§ 241.13(e)(6), 241.14(a). In its Federal Register notice, the INS cited Zadvydas v. Davis in support of this "special circumstances" exception, declaring that the Supreme Court "acknowledged that there may be cases involving 'special circumstances,' such as those involving terrorists or specially dangerous individuals, in which continued detention may be appropriate even if removal is unlikely in the reasonably foreseeable future." See Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. at 56,968.

8 C.F.R. § 241.14(b), (c), (d), (f). DHS regulations state that an alien presents a special danger to the public if he has previously committed a crime of violence (as defined in 18 U.S.C. § 16), he is likely to engage in acts of violence in the future due to a mental condition or personality disorder, and no conditions of release can reasonably be expected to ensure the public's safety. Id. § 241.14(f)(1). ICE's determination that an alien "would pose a special danger to the public" is subject to review at a hearing before an IJ, and ICE has the burden of establishing that the alien should remain in custody. Id. § 241.14(g), (h), (i). The IJ's custody determination is also subject to review by the BIA. Id. § 241.14(i)(4). Further, if the IJ or the BIA orders the alien to remain in custody, ICE must conduct periodic reviews of the alien's continued detention to assess whether the alien still poses a special danger to the public (which also may be subject to IJ and BIA review). Id. § 241.14(k). DHS regulations provide, however, that there is no IJ or BIA review of ICE's decision to detain an alien on the basis of a highly contagious disease, serious adverse foreign policy concerns, or security and terrorism-related grounds (but ICE is required to conduct ongoing reviews of those determinations). Id. § 241.14(a)(2).

Tran v. Mukasey, 515 F.3d 478, 482–83 (5th Cir. 2008); Tuan Thai v. Ashcroft, 366 F.3d 790, 794–95 (9th Cir. 2004).

Tran, 515 F.3d at 482–83; Tuan Thai, 366 F.3d at 794–95.

Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1248–49 (10th Cir. 2008); see also Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982–83 (2005) (holding that an agency's interpretation of a statute may differ from a prior judicial interpretation of that statute unless the statute unambiguously requires the judicial construction).

See 8 U.S.C. §§ 1225(b)(1)(B), 1225(b)(2)(A), 1226(a), 1226(c), 1231(a)(2), 1231(a)(6).

See Jennings v. Rodriguez, 138 S. Ct. 830 (2018); Zadvydas v. Davis, 533 U.S. 678 (2001).

See e.g., Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018) ("We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional"); Padilla v. U.S. Immigration and Customs Enforcement, 387 F. Supp. 3d 1219, 1223 (W.D. Wash. 2019), appeal docketed, No. 19-35565 (9th Cir. July 5, 2019) ("It is the finding of this Court that it is unconstitutional to deny [unlawful entrants] a bond hearing while they await a final determination of their asylum request."); Allison M. Cunneen, Demanding Due Process: Time to Amend 8 U.S.C. § 1226(c) and Limit Indefinite Detention of Criminal Immigrants, 83 Brook. L. Rev. 1497, 1515-17 (2018) ("In the interest of justice and human rights, Congress should amend the statute so that criminal immigrants are subjected only to reasonable detention times, as required by the Constitution."); Whitney Chelgren, Preventive Detention Distorted: Why It is Unconstitutional to Detain Immigrants without Procedural Protections, 44 Loy. L.A. L. Rev. 1477, 1503-09, 1523-25 (2011) ("[T]here should be time constraints placed on pre-removal order detention because the Court has time and again held that prolonged detention is unconstitutional."); Susan Marx, Throwing Away the Key: The Constitutionality of the Indefinite Detention of Inadmissible Aliens, 35 Tex. Tech. L. Rev. 1259, 1297–98 (2003) ("To detain inadmissible aliens indefinitely is a blatant violation of due process, and it should not be permitted under the Constitution.").

Flores v. Sessions, 862 F.3d 863, 869, 874 (9th Cir. 2017). See generally CRS Report R45297, The "Flores Settlement" and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions, by Ben Harrington.

See e.g., Evangeline Dech, Nonprofit Organizations: Humanizing Immigration Detention, 53 Cal. W. L. Rev. 219, 235 (2017) ("These detainees are subject to the same, if not worse, conditions of prisons: shackling; solitary confinement; and the denial of exercise, healthcare, and adequate nutrition."); Chelgren, supra note 253, at 1495, 1499 ("The lack of regulation has allowed the detention system to deteriorate to the point where the conditions of confinement are not only punitive but also inhumane."); Abigail Hauslohner, U.S. Returns 100 Migrant Children to Overcrowded Border Facility as HHS Says It Is Out of Space, Wash. Post, June 25, 2019, https://www.washingtonpost.com/immigration/us-returns-100-migrant-children-to-overcrowded-border-facility-as-hhs-says-it-is-out-of-space/2019/06/25/397b0cb6-96b6-11e9-830a-21b9b36b64ad_story.html (describing overcrowded conditions and lack of medical treatment, beds, private space, nutrition, and hygiene at Border Patrol facilities).

See e.g., City of El Cenizo v. Texas, 890 F.3d 164 (5th Cir. 2018); Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015); Creedle v. Miami-Dade Cty., 349 F. Supp. 3d 1276 (S.D. Fla. 2018); Abriq v. Hall, 295 F. Supp. 3d 874 (M.D. Tenn. 2018); Lopez-Aguilar v. Marion Cty. Sheriff's Dep't, 296 F. Supp. 3d 959 (S.D. Ind. 2017); Ochoa v. Campbell, 266 F. Supp. 3d 1237 (E.D. Wash. 2017); Orellana v. Nobles Cty., 230 F. Supp. 3d 934 (D. Minn. 2017); Moreno v. Napolitano, 213 F. Supp. 3d 999 (N.D. Ill. 2016).

Zadvydas v. Davis, 533 U.S. 678, 690–91, 701 (2001).

Demore v. Kim, 538 U.S. 510, 531 (2003).

See Sopo v. U.S. Att'y Gen., 825 F.3d 1199, 1214 (11th Cir. 2016), vacated, 890 F.3d 952 (2018); Reid v. Donelan, 819 F.3d 486, 494 (1st Cir. 2016), vacated, Reid v. Donelan, 2018 WL 4000993 (May 11, 2018); Lora v. Shanahan, 804 F.3d 601, 606, 614–16 (2d Cir. 2015), vacated, 138 S. Ct. 1260 (2018); Rodriguez v. Robbins, 715 F.3d 1127, 1137–39 (9th Cir. 2013), abrogated by Jennings v. Rodriguez, 138 S. Ct. 830 (2018); Diop v. ICE/Homeland Sec., 656 F.3d 221, 231–32, 235 (3d Cir. 2011), abrogated by Jennings v. Rodriguez, 138 S. Ct. 830 (2018); Ly v. Hansen, 351 F.3d 263, 267–68, 273 (6th Cir. 2003), abrogated by Jennings v. Rodriguez, 138 S. Ct. 830 (2018). The Second and Ninth Circuits imposed a six-month limitation to detention, whereas the First, Third, Sixth, and Eleventh Circuits concluded that the time limitation should be based on a fact-dependent analysis in each case. Sopo, 825 F.3d at 1215–16; Reid, 819 F.3d at 496; Lora, 804 F.3d at 616; Rodriguez, 715 F.3d at 1139; Diop, 656 F.3d at 234; Ly, 351 F.3d at 271–72.

Jennings v. Rodriguez, 138 S. Ct. 830 (2018).

Rodriguez v. Robbins, 804 F.3d 1060, 1065 (9th Cir. 2015), rev'd sub. nom. Jennings v. Rodriguez, 138 S. Ct. 830 (2018). In its decision, the Ninth Circuit observed that the plaintiffs typically spent an average of 427 days in detention, but that one alien had been detained for 1,585 days. Id. at 1079.

Rodriguez, 715 F.3d at 1132.

Rodriguez, 804 F.3d at 1089–90.

Id. at 1074. The Ninth Circuit recognized that reviewing courts have typically considered aliens seeking initial admission into the United States as having less due process protection than aliens within the country. Id. at 1082; see also Rodriguez, 715 F.3d at 1140 (discussing the "unique constitutional position of arriving aliens"). Nonetheless, the court believed that the constitutional concerns raised by Zadvydas were pertinent to INA § 235(b), notwithstanding that this provision primarily addresses aliens seeking initial entry to the United States. Rodriguez, 804 F.3d at 1082. The court reasoned that the statute still raised constitutional issues because it could in some circumstances apply to returning LPRs, who are entitled to more robust protections than aliens seeking initial entry into the United States. Id. at 1082–83; see 8 U.S.C. § 1101(a)(13)(C) (providing that an LPR may be treated as an applicant for admission—and thus subject to detention under INA Section 235(b)—in certain circumstances, such as when the LPR has been absent from the United States for more than 180 days).

Rodriguez, 804 F.3d at 1079, 1088.

Id. at 1074.

Id. at 1079, 1082.

Id. at 1085, 1089. The court recognized that INA Section 236(a) already affords aliens the right to request bond hearings, but determined that bond hearings should be automatically required after six months because "[d]etainees, who typically have no choice but to proceed pro se, have limited access to legal resources, often lack English-language proficiency, and are sometimes illiterate." Id. at 1085. Consequently, the court reasoned, "many class members are not aware of their right to a bond hearing and are poorly equipped to request one." Id.

Id. at 1087.

Jennings v. Rodriguez, 138 S. Ct. 830, 836, 842 (2018). Before reaching the merits of the case, the Court had concluded that INA Section 236(e) did not bar the plaintiffs' claims regarding their detention under INA Sections 235(b), 236(a), and 236(c) because they challenged the "statutory framework" allowing their detention without bond rather than any discretionary decision whether to detain them. Id. at 841. The Court further concluded that INA Section 242(b)(9) did not bar jurisdiction either because the plaintiffs did not seek to challenge an order of removal, the government's decision to seek removal, or the process by which their removability would be determined. Id.; see also supra at 15 (discussing judicial review of custody determinations).

Jennings, 138 S. Ct. at 842.

Id. at 843–44; see also 8 U.S.C. § 1231(a)(6) (authorizing, but not requiring, continued detention beyond 90-day removal period for certain classes of aliens).

Jennings, 138 S. Ct. at 843.

Id. at 842–44, 846–47.

Id. at 847–48.

Id. at 843. The Court stated, "That is not how the canon of constitutional avoidance works. Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases. Instead, the canon permits a court to 'choos[e] between competing plausible interpretations of a statutory text.'" Id. (quoting Clark v. Martinez, 543 U.S. 371, 381 (2005)) (emphasis in original).

Id. at 851. In a dissenting opinion, Justice Breyer argued that INA Sections 235(b), 236(a), and 236(c) should be interpreted as requiring bond hearings after six months' detention. Id. at 859 (Breyer, J., dissenting). Declaring that "the Constitution does not authorize arbitrary detention" and that aliens have the right to due process (including, in Justice Breyer's view, not only aliens within the United States but also those aliens seeking initial entry), Justice Breyer argued that interpreting these INA provisions as permitting indefinite detention would likely render them unconstitutional. Id. at 862–63, 876 (Breyer, J., dissenting). Given this concern, Justice Breyer argued that INA Sections 235(b), 236(a), and 236(c) should be interpreted as authorizing bond hearings when detention is prolonged because the statutes' language, purpose, context, and history were consistent with the notion that detained individuals have "the basic right to seek bail." Id. at 876 (Breyer, J., dissenting).

Demore v. Kim, 538 U.S. 510, 513 (2003) (emphasis added); see also id. at 526 (noting the "longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings").

Id. at 532 (Kennedy, J., concurring) (citing Zadvydas v. Davis, 533 U.S. 678, 684–86 (2001)).

See Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018) ("We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional"); Borbot v. Warden Hudson Co. Corr. Facility, 906 F.3d 274, 278 (3d Cir. 2018) ("Jennings did not call into question our constitutional holding in Diop that detention under § 1226(c) may violate due process if unreasonably long."); Padilla v. U.S. Immigration and Customs Enforcement, 387 F. Supp. 3d 1219, 1223 (W.D. Wash. 2019), appeal docketed, No. 19-35565 (9th Cir. July 5, 2019) ("It is the finding of this Court that it is unconstitutional to deny these class members a bond hearing while they await a final determination of their asylum request."); Reyes v. Bonnar, 362 F. Supp. 3d. 762, 777 (N.D. Cal. 2019) (ruling that alien's 22-month detention without a second bond hearing violated due process); Kouadio v. Decker, 352 F. Supp. 3d 235, 241 (S.D.N.Y. 2018) (holding that alien's 34-month detention without bond hearing violated due process); Pierre v. Doll, 350 F. Supp. 3d 327, 332 (M.D. Pa. 2018) (ruling that alien's 2-year detention without bond hearing was unreasonable); Lett v. Decker, 346 F. Supp. 3d 379, 387–88 (S.D.N.Y. 2018) (holding that alien's nearly 10-month detention was unreasonable); Brissett v. Decker, 324 F. Supp. 3d 444, 452 (S.D.N.Y. 2018) (detention of alien for more than 9 months without bond violated due process); Portillo v. Hott, 322 F. Supp. 3d 698, 709 (E.D. Va. 2018) (holding that alien detained for more than 14 months was entitled to a bond hearing); Mohamed v. Sec'y Dep't of Homeland Sec., 376 F. Supp. 3d 950, 957–58 (D. Minn. 2018) (holding that alien's detention for more than 15 months without bond hearing violated due process).

See e.g., Kouadio, 352 F. Supp. 3d at 241 ("The statutory framework governing those who seek refuge, and its provisions for detention, cannot be extended to deny all right to bail."); Pierre, 350 F. Supp. 3d at 332 ("[T]he Court agrees with the weight of authority finding that 'arriving aliens detained pre-removal pursuant to § 1225(b) have a due process right to an individualized bond consideration once it is determined that the duration of their detention has become unreasonable.'") (quoting Singh v. Sabol, No. 1:16-cv-02246, 2017 WL 1659029, *4 (M.D. Pa. Apr. 6, 2017)); Lett, 346 F. Supp. 3d at 386 ("[W]hen it comes to prolonged detention, the Court sees no logical reason to treat individuals at the threshold of entry seeking asylum under § 1225(b), like Petitioner, differently than other classes of detained aliens."); cf. Castro v. Dep't of Homeland Sec., 835 F.3d 422, 449 n. 32 (3d Cir. 2016) ("And we are certain that this 'plenary power' does not mean Congress or the Executive can subject recent clandestine entrants or other arriving aliens to inhumane treatment."); Kwai Fun Wong v. INS, 373 F.3d 952, 971 (9th Cir. 2004) ("The entry fiction thus appears determinative of the procedural rights of aliens with respect to their applications for admission. The entry doctrine has not, however, been applied, by the Supreme Court or by this court, to deny all constitutional rights to non-admitted aliens.").

Kouadio, 352 F. Supp. 3d at 239–41; Lett, 346 F. Supp. 3d at 385–86.

Kouadio, 352 F. Supp. 3d at 241; Lett, 346 F. Supp. 3d at 386. But see Poonjani v. Shanahan, 319 F. Supp. 3d 644, 648 (S.D.N.Y. 2018) ("Mezei's holding—that for aliens on the 'threshold of initial entry,' due process is whatever procedure has been 'authorized by Congress'—compels denial of the Petition here."); Aracely v. Nielsen, 319 F. Supp. 3d 110, 145 (D.D.C. 2018) ("While Mezei may be under siege, it is still good law, and it dictates that for an alien who has not effected an entry into the United States, '[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.'") (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)) (alteration in original).

See Padilla, 387 F. Supp. 3d at 1232 (ordering government to require DHS to prove at bond hearings that asylum seekers who unlawfully entered the United States should not be released from custody); Lett, 346 F. Supp. 3d at 389 ("Courts within this district have found that imposing a clear and convincing standard on the Government is most consistent with due process.") (internal quotation omitted); Portillo, 322 F. Supp. 3d at 709 ("[A]t the bond hearing, the government must demonstrate that [the alien] is either a flight risk or a danger to the community by clear and convincing evidence."); Cortez v. Sessions, 318 F. Supp. 3d 1134, 1146–47 (N.D. Cal. 2018) ("The [Jennings] Court did not engage in any discussion of the specific evidentiary standard applicable to bond hearings, and there is no indication that the Court was reversing the Ninth Circuit as to that particular issue."); Pensamiento v. McDonald, 315 F. Supp. 3d 684, 692 (D. Mass. 2018) ("Requiring a non-criminal alien to prove that he is not dangerous and not a flight risk at a bond hearing violates the Due Process Clause.") (emphasis in original).

See Flores v. Barr, __ F.3d __, 2019 WL 3820265, *2 (9th Cir. Aug. 15, 2019); Flores v. Sessions, 862 F.3d 863, 866, 869 (9th Cir. 2017) (discussing Flores Settlement).

8 U.S.C. § 1232(a)(4), (b)(3).

See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. 44,392 (Aug. 23, 2019) (to be codified at 45 C.F.R. pt. 410).

See Flores v. Lynch, 828 F.3d 898, 901–02 (9th Cir. 2016) (discussing history of Flores litigation). At the time of the lawsuit, there were no federal laws concerning the care and treatment of UACs. See Reno v. Flores, 507 U.S. 292, 295 (1993) ("For a number of years the problem was apparently dealt with on a regional and ad hoc basis, with some INS offices releasing unaccompanied alien juveniles not only to their parents but also to a range of other adults and organizations.").

Flores, 828 F.3d at 902; Reno, 507 U.S. at 298-300, 302.

Id. at 303, 312, 315.

See Stipulated Settlement Agreement, Flores v. Reno, No.CV 85-4544-RJK (Px) (C.D. Cal. Jan. 17, 1997).

A qualifying adult includes, in order of preference, a parent, legal guardian, adult relative (brother, sister, aunt, uncle, grandparent), an adult individual designated by the parent or legal guardian, and an adult individual seeking custody if there is no likely alternative to long-term detention and family reunification is not a reasonable option. Id. at ¶ 14; see also 8 C.F.R. § 236.3(b) (providing that, if an alien minor is released from detention, the alien will be released to an adult available to provide custody in similar order of preference; and also authorizing DHS to simultaneously release an alien minor and a parent, legal guardian, or adult relative who is also in DHS custody "on a discretionary case-by-case basis").

Stipulated Settlement Agreement at ¶¶ 12.A, 14, 19. The transfer must occur within three days if the minor was apprehended in a district in which a licensed program is located and has space available. Id. at ¶ 12.A. While the settlement creates a "general policy favoring release," it allows an alien minor to be detained in a secure DHS or other facility "to secure his or her timely appearance before [DHS] or the immigration court, or to ensure the minor's safety or that of others." Id. ¶ 14. The settlement lists various circumstances where such detention may be warranted, such as when the minor has been charged with or convicted of a crime, has been the subject of delinquency proceedings, has engaged in disruptive behavior, has threatened violence, or presents an escape risk. Id. ¶ 21.

Id. ¶ 12.A. The settlement describes an "emergency" as "natural disasters (e.g., earthquakes, hurricanes, etc.), facility fires, civil disturbances, and medical emergencies." Id. ¶ 12.B. An "influx of minors" occurs when there are more than 130 minors eligible for placement in a licensed facility. Id.

See Stipulation Extending Settlement Agreement and for Other Purposes, and Order Thereon, Flores v. Reno, No. CV 85-4544-RJK (Px) (C.D. Cal. Dec. 7, 2001).

Flores, 828 F.3d at 904; see also TVPRA, Pub. L. No. 110-457, 122 Stat. 5044 (2008) (codified in relevant part at 8 U.S.C. § 1232).

A UAC is defined as a child who has no lawful immigration status in the United States; has not reached the age of 18; and either has no parent or legal guardian in the United States, or has no parent or legal guardian in the United States who is available to provide care and physical custody. 6 U.S.C. § 279(g).

8 U.S.C. § 1232(a)(4), (b)(3). UACs are not subject to expedited removal. Id. § 1232(a)(5)(D). Therefore, any UAC who is apprehended by immigration authorities must be placed in formal removal proceedings, regardless of whether the UAC is found in the interior of the United States or at the border. Id. However, DHS may permit a UAC to voluntarily return to his country in lieu of removal proceedings if the UAC is "a national or habitual resident of a country that is contiguous with the United States" (i.e., Mexico and Canada), and the child (1) has not been a victim of human trafficking (or is not at risk of human trafficking upon return to his native country or country of last habitual residence); (2) does not have a credible fear of persecution in his native country or country of last habitual residence; and (3) is capable of independently withdrawing his application for admission to the United States. Id. § 1232(a)(2)(A), (a)(2)(B), (a)(5)(D). DHS must determine whether the child meets these criteria generally within 48 hours after the child's apprehension. Id. § 1232(a)(4).

Id. § 1232(c)(2)(A), (3)(A). If the child remains in ORR custody, the child may not be placed in a secure facility "absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense." Id. § 1232(c)(2)(A). If the child reaches the age of 18 and is transferred back to DHS (because he is no longer a UAC), DHS "shall consider placement in the least restrictive setting available after taking into account the alien's danger to self, danger to the community, and risk of flight," including consideration of supervised release and other alternatives to detention. Id. § 1232(c)(2)(B).

Flores v. Johnson, 212 F. Supp. 3d 864, 869–70 (C.D. Cal. 2015).

Id. at 871–72, 882.

Id. at 871–73, 887.

Flores v. Lynch, 212 F. Supp. 3d 907, 914 (C.D. Cal. 2015). The government had argued that, when families are placed in expedited removal proceedings, the agency would typically need 20 days to complete any credible fear processing. Id. at 913. See also supra at 23 (discussing expedited removal process).

Flores v. Lynch, 828 F.3d 898, 905–09 (9th Cir. 2016). The court noted that "[p]arents were not plaintiffs in the Flores action, nor are they members of the certified classes," and concluded that "[t]he Settlement therefore provides no affirmative release rights for parents, and the district court erred in creating such rights in the context of a motion to enforce that agreement." Id. at 909.

See Flores, 212 F. Supp. 3d at 873 (recognizing that separating an accompanied minor from a parent potentially "endangers the minor's safety").

Ms. L. v. U.S. Immigration & Customs Enforcement, 310 F. Supp. 3d 1133, 1143 (S.D. Cal. 2018), appeal filed, No. 18-56151 (9th Cir. Aug. 27, 2018).

See generally Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. 44,392 (Aug. 23, 2019) (to be codified at 45 C.F.R. pt. 410). The rules goes into effect on October 22, 2019. Id.

Id. at 44,394. DHS argues that judicial interpretation of the Flores Settlement to apply to accompanied minors "has created a series of operational difficulties for DHS, most notably with respect to a state-licensing requirement for an ICE Family Residential Center (FRC) in which such parents/legal guardians may be housed together with their children during immigration proceedings, the need for custody of parents and accompanied minors as required by the immigration laws in certain circumstances, and avoiding the need to separate families to comply with the [Flores Settlement] when immigration custody is necessary for a parent." Id. at 44,393. DHS contends that, because states generally lack licensing schemes for family detention facilities, the application of the Flores Settlement to accompanied minors has effectively required DHS to release minors and their accompanying relatives to avoid family separation, even if governing statutes otherwise mandated their detention pending removal proceedings. Id. at 44,394.

See Stipulated Settlement Agreement, Flores v. Reno, No.CV 85-4544-RJK (Px), § VI (C.D. Cal. Jan. 17, 1997).

See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. at 44,393, 44,407, 44,485, 44,490.

See Stipulation Extending Settlement Agreement and for Other Purposes, and Order Thereon, Flores v. Reno, No. CV 85-4544-RJK (Px) (C.D. Cal. Dec. 7, 2001). Under those terms, the Flores Settlement will terminate on October 7, 2019.

Id.

For example, the final rule requires DHS to hold alien minors "in the least restrictive setting" and in "safe and sanitary" facilities when they are initially apprehended; requires the prompt transfer of alien minors to nonsecure, licensed facilities (in the case of UACs, the rule requires prompt transfer to ORR in accordance with the TVPRA); imposes certain "family residential standards" for nonsecure, licensed ICE facilities; authorizes DHS to release minors to a parent or legal guardian, or to an adult relative (including a brother, sister, aunt, uncle, or grandparent); and authorizes bond hearings for alien minors who seek administrative review of DHS's custody determinations (to the extent the minor is in formal removal proceedings and eligible for a bond hearing). See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. at 44,525-29. The rule also imposes standards for ORR facilities and the placement of UACs with sponsors. Id. at 44,531-35.

Conversely, if the court determines that the rule fails to implement the terms of the Flores Settlement, the court will likely leave the agreement in effect. See Flores v. Lynch, 828 F.3d 898, 903, 905 (9th Cir. 2016). For more discussion about the Flores Settlement and DHS's final rule purporting to implement the settlement, see CRS Report R45297, The "Flores Settlement" and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions, by Ben Harrington.

However, the recently promulgated DHS regulations that purport to implement the Flores Settlement contain specific standards regarding the treatment of alien minors in DHS or ORR custody. See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. at 44,527-29, 44,531, 44,533-34. Those rules are scheduled to go into effect on October 22, 2019.

See Performance-Based National Detention Standards 2011, U.S. Immigration & Customs Enforcement (revised Dec. 2016), https://www.ice.gov/doclib/detention-standards/2011/pbnds2011r2016.pdf.

Id.

Id.

See National Standards on Transport, Escort, Detention, and Search, U.S. Customs & Border Prot. (October 2015), https://www.cbp.gov/sites/default/files/assets/documents/2017-Sep/CBP%20TEDS%20Policy%20Oct2015.pdf. Under the CBP guidelines, aliens generally may not be held for more than 72 hours in CBP hold rooms or holding facilities, and they have access to, among other things, medical care, restrooms, personal hygiene items, bedding, food and beverage, and clean drinking water. Id.; see also 6 U.S.C. § 211(m)(1) ("The [CBP] Commissioner shall make every effort to ensure that adequate access to food and water is provided to an individual apprehended and detained at a United States port of entry or between ports of entry as soon as practicable following the time of such apprehension or during subsequent short-term detention.").

See Nielsen v. Preap, 139 S. Ct. 954 (2019) (detention without bond of criminal aliens taken into custody years after their release from criminal incarceration); Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (indefinite detention of aliens pending their removal proceedings); Demore v. Kim, 538 U.S. 510 (2003) (detention of criminal aliens without bond pending removal proceedings); Zadvydas v. Davis, 533 U.S. 678 (2001) (indefinite detention post-order of removal).

See Anshu Budhrani, Regardless of My Status, I Am a Human Being: Immigrant Detainees and Recourse to the Alien Tort Statute, 14 U. Pa. J. Const. L. 781, 793 (2012) ("The Supreme Court has not really addressed this issue, and those circuit courts that have are not in perfect alignment with one another.").

See e.g., Doe v. Kelly, 878 F.3d 710, 720 (9th Cir. 2017) (applying the standard for reviewing the conditions of confinement for pretrial detainees); Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000) ("We consider a person detained for deportation to be the equivalent of a pretrial detainee"); Al Najjar v. Ashcroft, 186 F. Supp. 2d 1235, 1243 (S.D. Fla. 2002) ("The constitutional standards applicable to pre-trial detention are analogous to the post-removal order, pre-deportation context, as both involve non-punitive detention.").

Bell v. Wolfish, 441 U.S. 520, 535 (1979) ("For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.").

Id. at 538–39 ("Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to 'punishment.' Conversely, if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.").

See e.g., Belbachir v. Co. of McHenry, 726 F.3d 975, 979 (7th Cir. 2013) (stating that alien detainee was entitled under the Fifth Amendment to "protection from harm caused by a defendant's deliberate indifference to the detainee's safety or health"); Adekoya v. Holder, 751 F. Supp. 2d 688, 694 (S.D.N.Y. 2010) ("Deliberate indifference to the medical needs of an immigrant detainee in certain circumstances gives rise to a cognizable claim under the Due Process Clause of the Fifth Amendment."). These cases apply the "deliberate indifference" standard under the Fifth Amendment, rather than the Eighth Amendment to which it traditionally applies, because alien detainees are not being "punished" and thus are not subject to the Eighth Amendment. See Adekoya, 751 F. Supp. 2d 688 at 694 n. 4 ("Because Adekoya was in civil immigration detention rather than criminal detention, his deliberate indifference claims should be analyzed under the Fifth Amendment's Due Process clause rather than the Eighth Amendment's 'cruel and unusual punishment' clause.").

Farmer v. Brennan, 511 U.S. 825, 837, 839–40 (1994); see also Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.") (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). In setting forth the standard for "deliberate indifference," the Supreme Court adopted the recklessness standard used in criminal cases, which considers whether an individual consciously disregards a substantial risk of serious harm. Farmer, 511 U.S. at 839–40.

See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) ("The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.")

See Castro v. Dep't of Homeland Sec., 835 F.3d 422, 449 n. 32 (3d Cir. 2016) ("And we are certain that this 'plenary power' does not mean Congress or the Executive can subject recent clandestine entrants or other arriving aliens to inhumane treatment."); Kwai Fun Wong v. INS, 373 F.3d 952, 971 (9th Cir. 2004) ("The entry fiction thus appears determinative of the procedural rights of aliens with respect to their applications for admission. The entry doctrine has not, however, been applied, by the Supreme Court or by this court, to deny all constitutional rights to non-admitted aliens.") (emphasis in original); Martinez-Aguero v. Gonzalez, 459 F.3d 618, 623 (5th Cir. 2006) ("There are, however, no identifiable national interests that justify the wanton infliction of pain."); Chi Thon Ngo v. INS, 192 F.3d 390, 396 (3d Cir. 1999) ("Even an excludable alien is a 'person' for purposes of the Fifth Amendment and is thus entitled to substantive due process.") (citing Wong Wing v. United States, 163 U.S. 228, 238 (1896)); Lynch v. Cannatella, 810 F.2d 1363, 1374 (5th Cir. 1987) ("[W]hatever due process rights excludable aliens may be denied by virtue of their status, they are entitled under the due process clauses of the fifth and fourteenth amendments to be free of gross physical abuse at the hands of state or federal officials.").

In reviewing challenges by arriving aliens to the conditions of their confinement, some courts have applied more rigorous standards than those generally applicable to pretrial detainees, requiring evidence of "gross physical abuse" or "the malicious infliction of cruel treatment." See Adras v. Nelson, 917 F.2d 1552, 1559 (11th Cir. 1990) ("There is no allegation of 'gross physical abuse' or intentional and malicious infliction of harm by INS agents."); Medina v. O'Neill, 838 F.2d 800, 803 (5th Cir. 1988) ("The stowaways alleged neither that cruel treatment was maliciously inflicted upon them nor that they suffered gross physical abuse. They stated no claim for violation of due process rights."). See also Margaret H. Taylor, Detained Aliens Challenging Conditions of Confinement and the Porous border of the Plenary Power Doctrine, 22 Hastings Const. L.Q. 1087, 1149 (1995) ("Thus Adras, like Medina, extracted language from [the Fifth Circuit's 1987 decision in] Lynch to set an unusually high threshold for excludable aliens seeking to challenge the conditions of their confinement.").

See Dahlan v. Dep't of Homeland Sec., 215 Fed.Appx. 97, 100, 2007 WL 397417 (3d Cir. Feb. 6, 2007) ("Although some of the conditions Dahlan described were undoubtedly unpleasant, he did not show that the conditions were excessive in relation to the prison's interest in maintaining security and effectuating his detention."); Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000); (holding that 15-day disciplinary segregation did not violate alien's due process rights); Nguyen v. B.I. Inc., 435 F. Supp. 2d 1109, 1115 (D. Or. 2006) (ruling that use of electronic monitoring bracelets under ATD program did not violate aliens' constitutional rights); Al Najjar v. Ashcroft, 186 F. Supp. 2d 1235, 1244 (S.D. Fla. 2002) ("While the conditions of Petitioner's previous detention may have been preferable to him, such conditions are not constitutionally required."); Preval v. Reno. 57 F. Supp. 2d 307, 312 (E.D. Va. 1999), rev'd on other grounds, No. 99-6950, 2000 WL 20591 (4th Cir. Jan. 13, 2000) ("Here, the loud noise, constant light, bad odor and low room temperature plaintiff cites, while undoubtedly unpleasant, cannot be characterized as 'punishment' unrelated to plaintiff's detention."); Justiz-Cepero v. INS, 882 F. Supp. 1582, 1584 (D. Kan. 1995) ("Although the conditions described by plaintiff are indeed harsh, it is apparent plaintiff's essential needs of food, clothing, shelter, and medical care were provided."); Imasuen v. Moyer, No. 91 C 5425, 1995 WL 506055, *4–*7 (N.D. Ill. 1995) (ruling that conditions of confinement did not violate due process even though food was "nothing to write home about," recreational activities were limited, and detainees were occasionally deprived of personal hygiene items and exposed to dirty mattresses).

Bell v. Wolfish, 441 U.S. 520, 537 (1979).

See e.g., Doe v. Kelly, 878 F.3d 710, 721–22 (9th Cir. 2017) (upholding district court's preliminary injunction requiring Border Patrol agents to provide adequate bedding and personal hygiene to aliens within 12 hours of detention); Belbachir v. Co. of McHenry, 726 F.3d 975, 982–83 (7th Cir. 2013) (ruling that failure to hospitalize or place alien on suicide watch implicated alien's due process rights); Newbrough v. Piedmont Reg'l Jail Auth., 822 F. Supp. 2d 558, 581–82 (E.D. Va. 2011), vacated on other grounds, No. 3:10CV867-HEH, 2012 WL 12931710 (E.D. Va. Jan. 12, 2012) (ruling that prison official and medical staff unreasonably withheld medical treatment from alien detainee); Rosemarie M. v. Morton, 671 F. Supp. 2d 1311, 1313 (M.D. Fla. 2009) (concluding that alien likely established that ICE officials were deliberately indifferent to her serious medical condition); Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028, 1044 (E.D.N.Y. 1993) (ruling that failure to provide access to medical treatment violated aliens' right to due process); Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1512–13 (C.D. Cal. 1988), aff'd, 919 F.2d 549 (9th Cir. 1990) (ordering former INS to provide Salvadoran detainees with legal materials, access to counsel and paralegals, and access to telephones, and barring agency from placing detainees in solitary confinement without hearing).

See Stipulated Settlement Agreement, ¶ 12.A, Flores v. Reno, No.CV 85-4544-RJK (Px) (C.D. Cal. Jan. 17, 1997). Specifically, "[f]acilities will provide access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect minors from others, and contact with family members who were arrested with the minor." Id.

See id. Exhibit 1. As discussed in this report, DHS has recently published regulations (set to go into effect on October 22, 2019) that purport to adopt these standards. See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. 44,392, 44,527-29, 44,531, 44,533-34. (Aug. 23, 2019) (to be codified at 45 C.F.R. pt. 410). In addition, ORR, the agency responsible for the care and custody of UACs, has created its own standards for state-licensed ORR-funded facilities. See ORR Guide: Children Entering the United States Unaccompanied, http://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied (published Jan. 30, 2015).

See Flores v. Sessions, No. CV 85-4544 DMG (AGRx), 2017 WL 6060252, *12 (C.D. Cal. June 27, 2017), appeal dismissed, __ F.3d __, 2019 WL 3820265 (9th Cir. Aug. 15, 2019); Flores v. Johnson, 212 F. Supp. 3d 864, 882 (C.D. Cal. 2015), aff'd in part, rev'd in part, 828 F.3d 898 (9th Cir. 2016) (finding that minors in CBP custody were exposed to cold temperatures, overcrowded conditions, inadequate food and water, inadequate hygiene, and poor sleeping conditions). In addition to overseeing the Flores Settlement, the U.S. District Court for the Central District of California has presided over a separate class action lawsuit challenging the former INS's practices and procedures in the detention and removal of Salvadoran nationals seeking asylum. Orantes-Hernandez v. Meese, 685 F. Supp. 1488 (C.D. Cal. 1988), aff'd, 919 F.2d 549 (9th Cir. 1990). In 1988, the court issued a permanent injunction requiring the INS to provide detained Salvadoran aliens with, among other things, legal materials, access to counsel, and access to telephones, and barring the agency from placing aliens in solitary confinement without a hearing. Id. at 1511–13. In 2007, the court largely denied the government's motion to dissolve the injunction, and the Ninth Circuit upheld that decision. Orantes-Hernandez v. Gonzales, 504 F. Supp. 2d 825 (C.D. Cal. 2007), aff'd, 321 Fed.Appx. 625, 2009 WL 905454 (9th Cir. Apr. 6, 2009). The injunction thus remains in place to this day.

See e.g., H.J. Res. 31, 116th Cong. (2019) (enacted); H.R. Rep. No. 116-9, at 475-77, 479-80, 482-83 (2019).

8 U.S.C. § 1226(a); 8 C.F.R. § 236.1(b)(1). In some cases, the agency may arrest an alien without a warrant, including if an immigration officer has "reason to believe" that an alien is unlawfully present in the United States and likely to escape before a warrant can be obtained. 8 U.S.C. § 1357(a)(2).

8 U.S.C. § 1357(d); 8 C.F.R. § 287.7; see Morales v. Chadbourne, 235 F. Supp. 3d 388, 392–93 (D.R.I. 2017) (noting that state and local law enforcement agencies may receive requests to transfer prisoners to immigration authorities "because potential immigration violators are being held by them on state or local charges").

8 C.F.R. § 287.7(a).

The first reference to "immigration detainers" in federal regulations appears to have been in 1962, when the DOJ issued regulations addressing the parole of prisoners subject to deportation. See Prescribing Regulations of the United States Board of Parole and Youth Correction Division of the Board, 27 Fed. Reg. 8487 (Aug. 24, 1962). Later regulations also refer to "deportation detainers." See, e.g., Control Custody, Care, Treatment, and Instruction of Inmates, 47 Fed. Reg. 47,168 (Oct. 22, 1982). See also Issuance of Immigration Detainers by ICE Immigration Officers ¶ 1, U.S. Immigration and Customs Enforcement (Mar. 24, 2017), https://www.ice.gov/sites/default/files/documents/Document/2017/10074-2.pdf ("The use of immigration detainers, however, long pre-dates any reference to detainers in the statute or regulations. In fact, the former [INS] first used the [detainer] Form I-247 as early as 1952.").

See Anti-Drug Abuse Act of 1986, Pub. L. No. 100-690, § 1751(d), 102 Stat. 4181 (1986).

8 U.S.C. § 1357(d).

See Documentary Requirements: Nonimmigrants; Waivers; Admission of Certain Inadmissible Aliens; Parole Judicial Recommendations against Deportation Proceedings to Determine Deportability of Aliens in the United States; Apprehension, Custody, Hearing, and Appeal Field Officers; Powers and Duties: Final Rule, 53 Fed. Reg. 9281, 9283-84 (Mar. 22, 1988). In response to claims that the detainer regulations exceeded their statutory authority under INA Section 287(d) because they were not limited to aliens arrested for controlled substance offenses, the INS argued that the regulations were based on the agency's "general authority . . . to detain any individual" subject to removal. Enhancing the Enforcement Authority of Immigration Officers, 59 Fed. Reg. 42,406, 42,411, 42,418 (Aug. 17, 1994). Thus, INA Section 287(d) "places special requirements on the [INS] regarding the detention of individuals arrested for controlled substance offenses, but does not delimit the general detainer authority of the [INS]." Id. at 42,411. See also Comm. for Immigrant Rights of Sonoma Cnty. v. Cnty. of Sonoma, 644 F. Supp. 2d 1177, 1199 (N.D. Cal. 2009) ("[The court reads the language of [INA Section 287(d)] as simply placing special requirements on officials issuing detainers for a violation of any law relating to controlled substances, not as expressly limiting the issuance of immigration detainers solely to individuals violating laws relating to controlled substances.").

See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,392 (Mar. 6, 1997); 8 C.F.R. § 236.1(a) ("The issuance of a detainer under this section shall be governed by the provisions of § 287.7 of this chapter.").

8 C.F.R. § 287.7(a).

Id. § 287.7(d); see also Dep't of Homeland Sec., Immigration Detainer—Notice of Action (Form I-247), available at https://www.ice.gov/doclib/secure-communities/pdf/immigration-detainer-form.pdf.

See Galarza v. Szalczyk, 745 F.3d 634, 640–42 (3d Cir. 2014); Ortega v. U.S. Immigration & Customs Enf't, 737 F.3d 435, 438 (6th Cir. 2013); Liranzo v. United States, 690 F.3d 78, 82 (2d Cir. 2012); United States v. Uribe-Rios, 558 F.3d 347, 350 n. 1 (4th Cir. 2009); United States v. Female Juvenile, A.F.S., 377 F.3d 27, 35 (1st Cir. 2004); Zolicoffer v. U.S. Dep't of Justice, 315 F.3d 538, 540 (5th Cir. 2003) (citing Giddings v. Chandler, 979 F.2d 1104, 1105 n. 3 (5th Cir. 1992)). With respect to INA Section 287(d)'s detainer authority, the Supreme Court has construed that statute as permissive rather than mandatory, observing that "[s]tate officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody." Arizona v. United States, 567 U.S. 387, 410 (2012) (emphasis added).

Galarza, 745 F.3d at 640–42.

Id. at 643–44. For more discussion about the Tenth Amendment and the anti-commandeering doctrine, see CRS Report R44795, "Sanctuary" Jurisdictions: Federal, State, and Local Policies and Related Litigation.

See Morales v. Chadbourne, 793 F.3d 208, 214–15 (1st Cir. 2015) ("Thus, the sole purpose of a detainer is to request the continued detention of an alien so that ICE officials may assume custody of that alien and investigate whether to initiate removal proceedings against her.").

See e.g., Cal. Gov't Code §§ 7282.5(a), 72844.6(a)(1) (West 2019) (barring compliance with detainer requests unless alien has been convicted of certain enumerated crimes); Chicago, Ill., Mun. Code §§ 2-173-05, 2-173-042 (2012) (barring compliance with detainers unless alien has been convicted of a felony, has a felony charge pending, has an outstanding criminal warrant, or is a known gang member); San Francisco, Cal., Ordinance ch. 121, § 121.3 (2013) ("A law enforcement official shall not detain an individual on the basis of an immigration detainer after that individual becomes eligible for release from custody."); King County, Wash., Ordinance 17706, § 2 (Dec. 2, 2013) (honoring detainer requests only for "individuals who have been convicted of a violent or serious crime" and specifying the types of crimes); compare with Fla. Stat. Ann. § 908.105 (West 2019) (requiring compliance with detainer requests). For further discussion about "sanctuary jurisdictions" that limit cooperation with federal immigration authorities in general, see CRS Report R44795, "Sanctuary" Jurisdictions: Federal, State, and Local Policies and Related Litigation.

See Issuance of Immigration Detainers by ICE Immigration Officers, supra note 340, at ¶ 2.3.

See Memorandum from John Morton, Director, Immigration & Customs Enforcement, to All Field Office Dirs., All Special Agents in Charge, and All Chief Counsel Regarding Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems (Dec. 21, 2012), https://www.ice.gov/doclib/detention-reform/pdf/detainer-policy.pdf. In addition, the alien must have had felony or certain specified misdemeanor convictions, had a previous history of immigration violations (e.g., unlawful reentry into the United States), or otherwise posed a significant risk to national security or public safety (e.g., suspected terrorists, gang members). Id.

See e.g., Morales v. Chadbourne, 793 F.3d 208, 216–18 (1st Cir. 2015); Orellana v. Nobles Cty., 230 F. Supp. 3d 934, 945–46 (D. Minn. 2017); Moreno v. Napolitano, 213 F. Supp. 3d 999, 1008–09 (N.D. Ill. 2016).

Moreno, 213 F. Supp. 3d at 1008–09. The court determined that being detained pursuant to an immigration detainer constitutes an arrest, and that a potentially removable alien held pursuant to a detainer could not be deemed likely to evade ICE to justify the arrest without a warrant. Id. at 1005–08; see also 8 U.S.C. §§ 1226(a) (generally requiring warrant for an alien's arrest and detention), 1357(a)(2) (exception to warrant requirement if alien is likely to escape).

Morales, 793 F.3d at 216–18. The court construed the "reason to believe" standard for a warrantless arrest under 8 U.S.C. § 1357(a)(2) as being the equivalent of the constitutional requirement of probable cause. Id. at 216.

Orellana, 230 F. Supp. 3d at 945–46 (D. Minn. 2017); see also Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 WL 1414305, *11 (D. Or. Apr. 11, 2014) (ruling that probable cause was not established where I-247 form stated only that an investigation had been initiated to determine whether alien was subject to removal); compare with Lopez-Lopez v. Cty. of Allegan, 321 F. Supp. 3d 794, 800 (W.D. Mich. 2018) (ruling that no Fourth Amendment violation occurred because detainer form set forth probable cause that alien was removable and the form was accompanied by an administrative arrest warrant).

See Issuance of Immigration Detainers by ICE Immigration Officers, supra note 340.

Id. at ¶ 2.4. The probable cause must be based on (1) the existence of a final order of removal against the alien; (2) the pendency of removal proceedings against the alien; (3) biometric confirmation of the alien's identity and a records match in federal databases indicating that the alien is subject to removal; or (4) the alien's voluntary statements and other reliable evidence showing that the alien is removable. Id. at ¶ 5.1. ICE "may not issue a detainer based upon the initiation of an investigation to determine whether the subject is a removable alien." Id. at ¶¶ 2.6, 5.1. Further, probable cause is not established "solely based on evidence of foreign birth and the absence of records in available databases" of the alien. Id.

Id. at ¶¶ 2.4, 5.2. However, "[i]f it becomes apparent that ICE cannot assume custody of the alien within 48 hours of when he or she would otherwise be released, the ICE immigration officer should immediately cancel the detainer." Id. at ¶ 2.7.

See Creedle v. Miami-Dade Cty., 349 F. Supp. 3d 1276, 1304 (S.D. Fla. 2018) ("'[K]nowledge that an individual has committed a civil immigration violation does not constitute reasonable suspicion or probable cause of a criminal infraction' and therefore cannot justify a Fourth Amendment seizure.") (quoting Lopez-Aguilar v. Marion Cty. Sheriff's Dep't, 296 F. Supp. 3d 959, 977–78 (S.D. Ind. 2017)); Abriq v. Hall, 295 F. Supp. 3d 874, 880 (M.D. Tenn. 2018) ("[T]he 'seizure' of aliens for known or suspected immigration violations can violate the Fourth Amendment when conducted under color of state law, because the predicate for a seizure is probable cause that the arrestee is committing or has committed a crime, and it is not a crime for a removable alien to remain present in the United States."); Lopez-Aguilar, 296 F. Supp. 3d at 976 ("But even in cases where ICE has or supplies probable cause to believe a noncitizen is deportable for a civil immigration violation, such probable cause, without more, does not justify the seizure of a person under color of state law."); Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1256 (E.D. Wash. 2017) ("[T]he predicate for stopping someone, let alon[e] detaining a person, is absent when police stop a person based on nothing more than possible removability from the United States."); cf. People ex rel. Wells v. DeMarco, 88 N.Y.S.3d 518, 529 (N.Y. App. Div. 2018) (holding that there was no state law authority "to effectuate warrantless arrests for civil immigration law violations."); Lunn v. Commonwealth, 78 N.E.3d 1143, 1160 (Mass. 2017) (same).

See Arizona v. United States, 567 U.S. 387, 410 (2012) ("Congress has put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances. By nonetheless authorizing state and local officers to engage in these enforcement activities as a general matter, § 6 creates an obstacle to the full purposes and objectives of Congress.").

See Lopez-Aguilar, 296 F. Supp. 3d at 973–74 ("Such detention exceeds the 'limited circumstances' in which state officers may enforce federal immigration law and thus violates 'the system Congress created.'") (quoting Arizona, 567 U.S. at 408); Ochoa, 266 F. Supp. 3d at 1253–54 ("Communication and cooperation between federal, state, and local officials on immigration matters is clearly permissible, but the role state and local officials can take in such matters is limited.") (citing Arizona, 567 U.S. at 411–12); Lunn, 78 N.E.3d at 522 ("Significantly, the administrative proceedings brought by Federal immigration authorities to remove individuals from the country are civil proceedings, not criminal prosecutions."). In Arizona, the Supreme Court noted that "[f]ederal law specifies limited circumstances in which state officers may perform the functions of an immigration officer," and cited some examples, including 8 U.S.C. § 1357(g), which authorizes DHS to enter into formal written agreements with states to perform certain immigration enforcement functions—including the detention of aliens. Arizona, 567 U.S. at 408–09. Some lower courts have suggested that immigration detainers may be permissible, even absent probable cause of a crime, if the state or local LEOs are acting pursuant to such agreements, and thus under "color of federal authority." See e.g., Creedle, 349 F. Supp. 3d at 1303–04; Lopez-Aguilar, 296 F. Supp. 3d at 973, 977–78.

City of El Cenizo v. Texas, 890 F.3d 164, 188 (5th Cir. 2018).

Id. at 188. The court noted, moreover, that Texas law explicitly authorized and required state LEOs to comply with ICE detainer requests. Id.

Id. at 188–89 (emphasis in original); see also Tenorio-Serrano v. Driscoll, 324 F. Supp. 3d 1053, 1066 (D. Ariz. 2018) ("Arrests based on probable cause of removability—a civil immigration violation—have long been recognized in the courts.") (citing City of El Cenizo, 890 F.3d at 187).

See U.S. Immigration & Customs Enforcement, ICE Detainers: Frequently Asked Questions (last updated June 2, 2017) ("Q: Why does ICE issue detainers? A: Detainers are critical for ICE to be able to identify and ultimately remove criminal aliens who are currently in federal, state or local custody. ICE relies on the cooperation of our state and local law enforcement partners in this effort.").

8 U.S.C. §§ 1225(b)(1)(B)(ii), (iii)(IV), 1225(b)(2)(A), 1226(a), 1226(c), 1231(a)(2), 1231(a)(3), (a)(6); 1232(a)(4), (b)(3).

Id. § 1226(a).

Id. §§ 1225(b)(1)(B)(ii), (iii)(IV), 1225(b)(2)(A), 1226(c).

Id. 1231(a)(2), (a)(6)

Zadvydas v. Davis, 533 U.S. 678, 699–701 (2001).

See Jennings v. Rodriguez, 138 S. Ct. 830, 836, 851 (2018); Demore v. Kim, 538 U.S. 510, 531 (2003).

See e.g., Padilla v. U.S. Immigration and Customs Enforcement, 387 F. Supp. 3d 1219, 1222–23, 1232 (W.D. Wash. 2019), appeal docketed, No. 19-35565 (9th Cir. July 5, 2019); Pierre v. Doll, 350 F. Supp. 3d 327, 332 (M.D. Pa. 2018); Lett v. Decker, 346 F. Supp. 3d 379, 387–88 (S.D.N.Y. 2018); Pensamiento v. McDonald, 315 F. Supp. 684, 692 (D. Mass. 2018).

See generally Flores v. Sessions, 862 F.3d 863, 866, 869 (9th Cir. 2017).

See e.g., Doe v. Kelly, 878 F.3d 710, 720 (9th Cir. 2017); Belbachir v. Co. of McHenry, 726 F.3d 975, 979–80 (7th Cir. 2013); Al Najjar v. Ashcroft, 186 F. Supp. 2d 1235, 1244 (S.D. Fla. 2002).

See e.g., Morales v. Chadbourne, 793 F.3d 208, 216–18 (1st Cir. 2015); Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1256 (E.D. Wash. 2017).

See Dignity for Detained Immigrants Act of 2019, H.R. 2415, 116th Cong. § 7 (2019); Dignity for Detained Immigrants Act of 2018, S. 3112, 115th Cong. § 7 (2018).

See Humanitarian Standards for Individuals in Customs and Border Protection Custody Act, H.R. 3239, 116th Cong. §§ 2-5, 11 (2019); Stop Cruelty to Migrant Children Act, H.R. 3918, 116th Cong. § 4 (2019); Short-Term Detention Standards Act, H.R. 3670, 116th Cong. §§ 2-3 (2019); Dignity for Detained Immigrants Act of 2019, H.R. 2415, 116th Cong. §§ 2, 3 (2019).

Alternatives to Detention Act of 2019, H.R. 532, 116th Cong. § 2 (2019); PROFILED Act, S. 748, 115th Cong.

§ 203 (2017).

See REUNITE Act, H.R. 1012, 116th Cong. §§ 5, 11 (2019); PROFILED Act, S. 748, 115th Cong. § 203 (2017).

See Dignity for Detained Immigrants Act of 2019, H.R. 2415, 116th Cong. § 7 (2019); Immigration Courts Bail Reform Act, H.R. 6097, 114th Cong. § 2 (2016).

See Keep Our Communities Safe Act of 2017, S. 36, 115th Cong. § 3 (2017); No Sanctuary for Criminals Act, H.R. 3003, 115th Cong. § 4 (2017).

See Criminal Alien Gang Member Removal Act, H.R. 98, 116th Cong. § 2 (2019); Grant's Law, H.R. 74, 116th Cong. § 2 (2019); No Sanctuary for Criminals Act, H.R. 3003, 115th Cong. § 4 (2017); Stop Catch and Release Act of 2015, H.R. 2942, 114th Cong. § 2 (2015).

See Protect Kids and Parents Act, S. 3091, 115th Cong. § 2 (2018).

See No Sanctuary for Criminals Act, H.R. 1928, 116th Cong. § 3 (2019).