Ignoring the Reporting Mandate about the Ignored Detention Mandate

50 INS/DHS detention reports missing; whereabouts unknown

By George Fishman on June 7, 2022

As I discussed in my previous post, one of the primary points of contention in the legal battle by the states of Texas and Missouri to prevent the Biden administration from terminating the Migrant Protection Protocols (MPP) is whether Congress was serious when it mandated that aliens “seeking admission [who are] not clearly and beyond a doubt entitled to be admitted ... shall be detained for a [removal] proceeding under section 240 [of the Immigration and Nationality Act (INA)].”

This was one of the mandatory detention provisions that Congress wrote into the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The House Judiciary Committee clearly stated why it believed detention to be crucial:

  • A chief reason why many deportable aliens are not removed from the United States is the inability of the [Immigration and Naturalization Service] INS to detain such aliens through the course of their deportation proceedings.

  • Lack of detention space is frequently cited as a reason why the INS is able to remove only a small fraction of deportable aliens. This problem is particularly acute when the INS is unable to detain criminal aliens.

  • [S]muggled aliens (often with the assistance of smugglers) abuse immigration procedures to extend their stay in the United States. Thousands of smuggled aliens arrive in the United States each year with no valid entry documents and declare asylum immediately upon arrival. Due to lack of detention space and overcrowded immigration court dockets, many have been released into the general population. Not surprisingly, a majority of such aliens do not return for their hearings. In recent years, however, the number of aliens arriving at airports with no valid documents has decreased in districts ... where detention capacity has increased and most mala fide aliens can be detained.

And Justice Souter’s concurrence in part and dissent in part in the 2003 Supreme Court decision in Demore v. Kim notes that:

Four former high-ranking INS officials [stated that]: "Flight rates were so high in the early 1990s not as a result of chronic discretionary judgment failures by [the] INS in assessing which aliens might pose a flight risk. Rather, the rates were alarmingly high because decisions to release aliens in proceedings were driven overwhelmingly by a lack of detention facilities." Brief for T. Alexander Aleinikoff [who was the General Counsel and then Executive Associate Commissioner for Programs at the INS during the Clinton administration] et al.

I should note that the Supreme Court in Demore didn’t seem to question that IIRIRA’s mandatory detention provisions (at least the one being contested, the mandatory detention of certain criminal aliens) were in fact mandatory. The majority opinion, in upholding the constitutionality of such detention, stated that "[s]ection [236](c) mandates detention during removal proceedings for a limited class of deportable aliens — including those convicted of an aggravated felony." (Emphasis added.) The dissenters — Justices Souter, Stevens and Ruth Bader Ginsburg, themselves stated that:

The Court appears to respond that Congress may require detention of removable aliens based on a general conclusion that detention is needed for effective removal of criminal aliens on a class-wide basis. ... The Court's closest approach to a reason justifying class-wide detention without exception here is a Senate Report. ... The Court's second effort is its claim that mandatory detention under §[236](c) is a Senate Report stating that over 20% of nondetained criminal aliens failed to appear for removal hearings. [Emphasis added.]

In any event, the Biden administration argues to the Supreme Court in Texas v. Biden that Congress could not have been serious when it mandated detention, in part because:

When developing IIRIRA, Congress was well aware that INS lacked the capacity to detain all removable noncitizens. The House Judiciary Committee’s report ... observed that, “[d]ue to lack of detention space and overcrowded immigration court dockets, many” of the “[t]housands of smuggled aliens [who] arrive in the United States each year with no valid entry documents and declare asylum immediately” “have been released into the general population.” ... And the General Accounting Office had informed Congress of the “astronomical[]” cost that would be required to detain “all detainable aliens.”


Congress chose not to provide the hundreds of millions of dollars that would have been needed for expansive detention. ... IIRIRA ... direct[ed] an increase to “at least 9,000 beds” in immigration-detention facilities during fiscal year 1997.

One fact that the administration does not mention to the Supreme Court is that IIRIRA contains another mandate, a provision requiring that:

Not later than 6 months after September 30, 1996, and every 6 months thereafter, the Attorney General shall submit a report to the Committees on the Judiciary of the House of Representatives and of the Senate estimating the amount of detention space that will be required, during the fiscal year in which the report is submitted and the succeeding fiscal year, to detain —

(A) all aliens subject to detention under section 236(c) [certain criminal aliens] and section 241(a) [aliens ordered removed];

(B) all inadmissible or deportable aliens subject to proceedings under section 238 [aggravated felons] or section 235(b)(2)(A) [mandating detention of all aliens seeking admission and not clearly and beyond a doubt entitled to be admitted] or 240 [removal proceedings before immigration judges]; and

(C) other inadmissible or deportable aliens in accordance with the priorities established by the Attorney General. [Emphasis added.]

Well, by my calculation, the INS, and now DHS, should by now have provided 50 such reports to Congress. Yet, I am not aware that a single such report has ever been prepared and sent to the Judiciary Committees. I worked for the House Judiciary Committee’s Immigration Subcommittee for over two decades, and I don’t recall ever seeing such a report. I have scoured DHS’s website and can find no reference to such a report. It is not as if no one in the Executive Branch ever read that part of IIRIRA. In 2001, the Department of Justice filed a brief with the Supreme Court in the case of Zadvydas v. Davis noting that:

Congress clearly intended that, under IIRIRA, the Attorney General would increase the INS's detention of criminal aliens by retaining in custody those aliens whose release would pose a risk to the community or a probability of flight. See 8 U.S.C. 1368 ... (requiring Attorney General, subject to availability of appropriations, to increase INS detention facilities and to report semiannually to Congress estimates of: the detention space needed to implement IIRIRA's detention provisions.) [Emphasis added.]

Yet, no one in the Executive Branch has apparently ever thought to comply with this mandate (notice a theme developing?).

IIRIRA’s report requirement originated in an amendment agreed to unanimously by the Senate Judiciary Committee and providing that:

[T]he Attorney General shall submit a report to the Congress estimating the amount of detention space that would be required on the date of enactment of this Act, in 5 years, and in 10 years, under various policies on the detention of aliens.

The report requirement that was enacted is a turbocharged version of the original amendment. First, the enacted requirement requires not just one report, but a report twice yearly in perpetuity. Second, Congress wants to know not just how much detention space would be required “under various [possible] policies ... including the current policy”, but wants to know “the amount of detention space that will be required ... to detain” aliens subject to IIRIRA’s detention mandates. (Emphasis Added.) If this is not a clear indication that Congress was serious about detention, I don’t know what one would be.

The Biden administration’s stance in the MPP litigation appears to be “woe is me, if only Congress would give DHS enough money to meet its detention mandate.” Yet, the administration has apparently never even bothered to honor its other relevant mandate — to tell Congress how many resources it would need to do exactly that – which might be a sign that the administration doesn’t really want to honor its detention mandates.