Immigration Detention: A Legal Overview September 16, 2019 Congressional Research Service https://crsreports.congress.gov R45915 SUMMARY R45915 Immigration Detention: A Legal Overview September 16, 2019 The Immigration and Nationality Act (INA) authorizes—and in some cases requires—the Department of Homeland Security (DHS) to detain non-U.S. nationals (aliens) arrested for Hillel R. Smith immigration violations that render them removable from the United States. An alien may be Legislative Attorney subject to detention pending an administrative determination as to whether the alien should be removed, and, if subject to a final order of removal, pending efforts to secure the alien’s removal from the United States. The immigration detention scheme is multifaceted, with different rules that turn on several factors, such as whether the alien is seeking admission into the United States or has been lawfully admitted into the country; whether the alien has engaged in certain proscribed conduct; and whether the alien has been issued a final order of removal. In many instances DHS maintains discretion to release an alien from custody. But in some instances, such as when an alien has committed specified crimes, the governing statutes have been understood to allow release from detention only in limited circumstances. The immigration detention scheme is mainly governed by four INA provisions that specify when an alien may be detained: 1. INA Section 236(a) generally authorizes the detention of aliens pending removal proceedings and permits aliens who are not subject to mandatory detention to be released on bond or on their own recognizance; 2. INA Section 236(c) generally requires the detention of aliens who are removable because of specified criminal activity or terrorist-related grounds after release from criminal incarceration; 3. INA Section 235(b) generally requires the detention of applicants for admission, such as aliens arriving at a designated port of entry as well as certain other aliens who have not been admitted or paroled into the United States, who appear subject to removal; and 4. INA Section 241(a) generally requires the detention of aliens during a 90-day period after the completion of removal proceedings and permits (but does not require) the detention of certain aliens after that period. These provisions confer substantial authority upon DHS to detain removable aliens, but that authority has been subject to legal challenge, particularly in cases involving the prolonged detention of aliens without bond. DHS’s detention authority is not unfettered, and due process considerations may inform the duration and conditions of aliens’ detention. In 2001, the Supreme Court in Zadvydas v. Davis construed the statute governing the detention of aliens following an order of removal as having implicit, temporal limitations. The Court reasoned that construing the statute to permit the indefinite detention of lawfully admitted aliens after their removal proceedings would raise “serious constitutional concerns.” In 2003, however, the Court in Demore v. Kim ruled that the mandatory detention of certain aliens pending their removal proceedings, at least for relatively brief periods, was constitutionally permissible. The interplay between the Zadvydas and Demore rulings has called into question whether the constitutional standards for detention prior to a final order of removal differ from those governing detention after a final order is issued. Several lower courts have interpreted Demore to mean that mandatory detention pending removal proceedings is not per se unconstitutional, but that Zadvydas cautions that if this detention becomes “prolonged” it may not comport with due process requirements. Additionally, some lower courts have recognized constraints on DHS’s detention power that the Supreme Court has not yet considered. For instance, some courts have ruled that the Due Process Clause requires aliens in removal proceedings to have bond hearings when detention becomes prolonged, where the government bears the burden of proving that the alien’s continued detention is justified. In addition, a settlement agreement known as the “Flores Settlement,” which is enforced by a federal district court, currently limits DHS’s ability to detain alien minors who are subject to removal. Further, while litigation concerning immigration detention has largely centered on the duration of detention, some courts have considered challenges to the conditions of immigration confinement, generally under the standards applicable to pretrial detention in criminal cases. Some courts have also restricted DHS’s ability to take custody of aliens detained by state or local law enforcement officials upon issuance of “immigration detainers.” In short, while DHS generally has broad authority over the detention of aliens, that authority is not without limitation. As courts continue to grapple with legal and constitutional challenges to immigration detention, Congress may consider legislative options that clarify the scope of the federal government’s detention authority. Congressional Research Service Immigration Detention: A Legal Overview Contents Introduction ..................................................................................................................................... 1 Legal and Historical Background .................................................................................................... 2 The Federal Immigration Authority and the Power to Detain Aliens ........................................ 2 Development of Immigration Laws Concerning Detention ...................................................... 5 Modern Statutory Detention Framework ......................................................................................... 8 Discretionary Detention Under INA Section 236(a) ................................................................. 9 Initial Custody Determination and Administrative Review .............................................. 10 Standard and Criteria for Making Custody Determinations ............................................. 12 Limitations to Administrative Review of Custody Determinations .................................. 14 Judicial Review of Custody Determinations ..................................................................... 15 Mandatory Detention of Criminal Aliens Under INA Section 236(c) ..................................... 17 Aliens Subject to Detention Under INA Section 236(c) ................................................... 17 Prohibition on Release from Custody Except in Special Circumstances .......................... 18 Limited Review to Determine Whether Alien Falls Within Scope of INA Section 236(c) ............................................................................................................................. 18 Constitutionality of Mandatory Detention ........................................................................ 19 Meaning of “When the Alien Is Released” ....................................................................... 21 Mandatory Detention of Applicants for Admission Under INA Section 235(b) ..................... 22 Applicants for Admission Subject to Expedited Removal ................................................ 23 Applicants for Admission Who Are Not Subject to Expedited Removal ......................... 28 Detention of Aliens Following Completion of Removal Proceedings Under INA Section 241(a) ...................................................................................................................... 29 Detention During 90-Day Removal Period ....................................................................... 30 Continued Detention Beyond Removal Period ................................................................. 31 Constitutional Limitations to Post-Order of Removal Detention ..................................... 33 Post-Zadvydas Regulations Addressing Likelihood of Removal and Special Circumstances Warranting Continued Detention ........................................................... 36 Select Legal Issues Concerning Detention .................................................................................... 38 Indefinite Detention During Removal Proceedings ................................................................ 39 Detention of Alien Minors ...................................................................................................... 43 Conditions of Confinement ..................................................................................................... 47 Immigration Detainers ............................................................................................................ 51 Conclusion ..................................................................................................................................... 55 Figures Figure 1. Detention and Review Process Under INA Section 236(a) ............................................ 12 Figure 2. Detention of Applicants for Admission .......................................................................... 29 Figure 3. General Procedure for Post-Order of Removal Detention ............................................. 33 Figure 4. Overview of Detention After Removal Proceedings ...................................................... 38 Tables Congressional Research Service Immigration Detention: A Legal Overview Table A-1. Development of Immigration Detention Laws: Major Legislative Enactments .......... 58 Table A-2.