Detention of aliens who are in violation of immigration laws is authorized — and in some cases mandated —by various provisions of the Immigration and Nationality Act ("INA", the primary statutory foundation of federal law, codified within Title 8 of the U.S. Code). Because immigration detention is civil, unlike criminal detention after conviction, its purpose is not to punish. Rather, immigration detention is solely for the purpose of holding in confinement aliens charged with violating the immigration laws while their removal proceedings are pending and, if ordered removed, up to and including the act of repatriation to the country of 1) origin, 2) last habitual residence, or 3) from which the alien last departed prior to entering the United States.
- Immigration detention is civil and for the purpose of ensuring appearance of aliens at removal proceedings, and for the actual removal itself.
- Congress recognizes both qualitative and quantitative problems associated with illegal immigration in the processes and detention mechanisms it directs.
- Claims of asylum and fear of return are a major loophole that result in release of aliens who then disappear.
- Lack of detention space to hold aliens also contributes to the collapse of immigration and border controls, resulting in a system of "catch-and-release" that encourages more aliens to attempt to enter illegally or to overstay their visas.
- Immigration and border security controls are at a crisis point, due to dismaying case backlogs currently clogging the immigration courts (more than 750,000 cases) and the number of fugitives (900,000) under orders of removal who are loose on the streets of the United States.
- Migrant caravans may force both legislators and the administration to take effective remedial action to close legal loopholes and to declare a mass immigration emergency to ensure continued control of our external border(s).
Congress, in enacting the detention-related provisions of the INA, has recognized both the quantitative and qualitative problems associated with illegal immigration. In each situation, with the exception of circumstances in which detention is mandated by the INA, detention decisions are to be made in each individual case based on whether the alien constitutes a risk of flight or a risk to public safety. Thus, the options available to immigration officers consist of:
- Release on bond;
- Release on the alien's own recognizance (O/R);
- Immigration parole (similar in effect to an O/R release); or
- One of the various forms of alternative-to-detention (ATD) programs (discussed in a separate briefing paper).
The problem, in a nutshell, is that when an alien is released pending removal, chances are high that, sooner or later, he will flee. It shouldn't be a surprise. Many aliens will appear at removal hearings as long as there is any chance whatsoever of some form of relief and of being permitted to stay, but once that becomes a remote possibility or disappears altogether, why would they stick around? After all, the worst that can happen if they flee and are later picked up is what was going to happen anyway: They will be removed. This is why right now on the streets of America, there are more than 904,000 aliens under outstanding, but unexecuted, orders of removal. In any other due process system, this would be both a shock and a national disgrace; our political leaders would be rushing to file amending legislation and take effective operational steps to reverse the status quo. It has not happened in the immigration environment because of the polarized national dialogue about immigration generally.
Qualitative Detention Factors
By "qualitative", we mean those aspects of immigration law touching on public safety or national security. Aliens who are inadmissible or deportable under such grounds of removability are generally understood to constitute a higher enforcement and removal priority, and as such are often required to be held without bond or other conditional release until removed. This is true, for instance, of alien felons (INA Section 236(c), 8 U.S.C. § 1226(c)) and alien terrorists (INA Section 236A, 8 U.S.C. § 1226a).
Quantitative Detention Factors
By "quantitative", we mean those aspects of immigration law that touch on the enormous magnitude of the problem of illegal immigration confronting our country. Thus, while aliens in this category don't for the most part represent the same kind of risk as alien criminals or national security threats, simply by volume they pose a real possibility of collapsing the nation's system of immigration control if they are not dealt with effectively.
Every year, hundreds of thousands of aliens are apprehended illegally crossing U.S. land and sea borders. One way that Congress has addressed that issue is to provide for expedited removal of aliens apprehended close in time (14 days) or place (100 miles) to their illegal border crossing. While the law does not specifically require mandatory detention of such individuals, it is implied by the directive that the inspecting officer "order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum ... or a fear of persecution." (INA Section 235(b)(1)(A)(i), 8 U.S.C. § 1225(b)(1)(A)(i)).
The problem is that many, if not most illegal aliens are well-versed on the fact that simply by claiming a fear of return, they increase their chances of release. Faced with a limited number of detention beds and the likelihood of keeping such an alien for an indefinite period of time while the removal hearing proceeds and the asylum claim is adjudicated, the government releases most of these individuals — a phenomenon known as "catch-and-release" — in order to save those beds for higher priority cases such as the alien criminals mentioned earlier. Unfortunately, when aliens are released, they are placed into the "non-detained" docket of the immigration courts that face a backlog of more than 764,000 cases and waits of two years or more before hearings even commence. Meanwhile, aliens either disappear, having achieved their goal of release, or wait around long enough for the regulatory period to toll after which they can ask for work permits while their cases are pending. Thus the cycle deepens.
Worse, we have reached the stage where the sorts of aliens illegally crossing the border have changed: A huge percentage of the individuals now being apprehended and processed are women and children. This is because they see asylum loopholes, catch-and-release policies, and a troubled nation confronting questions about the detention — or separation —of families as working in their favor. Unfortunately, this has placed the United States into the position of inadvertently acting as a co-conspirator in the smuggling of these most vulnerable human beings by the thousands, across hostile terrain in the hands of criminals and cartels. A recent report by Medicins sans Frontieres (Doctors Without Borders) estimates that:
- More than two-thirds of those making the journey north become victims of violence along the way; and
- Nearly one-third of women are sexually assaulted during the journey (often enough including girls under the age of consent).
Removal of Overstay Visitors
In addition to the hundreds of thousands of illegal border-crossers, additional hundreds of thousands more arrive legally as nonimmigrants, but then overstay or otherwise violate their visas and remain. Of these visitors, aliens from 38 approved countries enter under the Visa Waiver Program (VWP) pursuant to INA Section 217, 8 U.S.C. § 1187, which waives the need to procure a visa from a U.S. consular officer abroad. Subsection 217(b) requires that prior to entry, the alien execute a waiver of rights that permits immigration officers at ports of entry to reject and return the alien to his place of embarkation if he is determined at inspection not to be a legitimate nonimmigrant visitor. Subsection (b) also permits prompt removal of the alien, without resort to a hearing, if he overstays or otherwise violates the conditions of admission after entry. Thus, as in expedited removal, detention up to the point of actual repatriation is implied — subject, however, to the same caveat that all bets are off if the alien seeks asylum.
It's clear that the nation is fast approaching a fault line in balancing the need for prompt adjudication and removal of aliens with a fair opportunity to be heard. Part of the answer must lie with effective remedial legislation that recognizes and addresses abuse of the asylum and "credible fear of return" processes and provides bright-line rules for detention that help to ensure this comes to pass.
At the same time, the administration must do a better job of explaining why detention is necessary if we are to remain a nation of laws that exercises the sovereign right to decide who may enter our borders, rather than ceding the decision to the aliens themselves.
The imminent arrival of a second "caravan" of thousands of mostly Central Americans (and rumors of a third already forming) heading to our southern border may force this decision upon all concerned, sooner rather than later. It may be time for the administration to invoke the mass migration emergency provisions in the INA that are already available, including INA Section 103(a)(10), 8 USC § 1103(a)(10); Section 212(f), 8 USC § 1182(f); and Section 215, 8 USC § 1185.