Immigration Detention: A Legal Overview
Congressional research reportSep 16, 2019
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Immigration Detention: A Legal Overview
Hillel R. Smith
Legislative Attorney
September 16, 2019
Congressional Research Service
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www.crs.gov
R45915
SUMMARY
Immigration Detention: A Legal Overview
R45915
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
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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
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that turn on several factors, such as whether the alien is seeking admission into the United States
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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.
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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
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Table A-1. Development of Immigration Detention Laws: Major Legislative Enactments .......... 58
Table A-2. Comparison of Major Detention Provisions in Current Statute ................................... 60
Appendixes
Appendix. ...................................................................................................................................... 58
Contacts
Author Contact Information .......................................................................................................... 62
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Immigration Detention: A Legal Overview
Introduction
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
immigration violations that render them removable from the United States.1 The immigration
detention regime serves two primary purposes. First, detention may ensure an apprehended
alien’s presence at his or her removal hearing and, if the alien is ultimately ordered removed,
makes it easier for removal to be quickly effectuated.2 Second, in some cases detention may serve
the additional purpose of alleviating any threat posed by the alien to the safety of the community
while the removal process is under way.3
The INA’s detention framework, however, is multifaceted, with different rules turning on whether
the alien is seeking initial admission into the United States or was lawfully admitted into the
country; whether the alien has committed certain criminal offenses or other conduct rendering
him or her a security risk; and whether the alien is being held pending removal proceedings or has
been issued a final order of removal.4
In many cases detention is discretionary, and DHS may release an alien placed in formal removal
proceedings on bond, on his or her own recognizance, or under an order of supervision pending
the outcome of those proceedings.5 But in other instances, such as those involving aliens who
have committed specified crimes, there are only limited circumstances when the alien may be
released from custody.6
This report outlines the statutory and regulatory framework governing the detention of aliens,
from an alien’s initial arrest and placement in removal proceedings to the alien’s removal from
the United States. In particular, the report examines the key statutory provisions that specify when
1 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).
2 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.”).
3 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).
4 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).
5 Id. § 1226(a).
6 Id. §§ 1225(b)(1)(B)(ii), (iii)(IV), 1225(b)(2)(A), 1226(c), 1231(a)(2).
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an alien may or must be detained by immigration authorities and the circumstances when an alien
may be released from custody. The report also discusses the various legal challenges to DHS’s
detention power and some of the judicially imposed restrictions on that authority. Finally, the
report examines how these legal developments may inform Congress as it considers legislation
that may modify the immigration detention framework.
Legal and Historical Background
The Federal Immigration Authority and the Power to Detain Aliens
The Supreme Court has long recognized that the federal government has “broad, undoubted
power over the subject of immigration and the status of aliens,”7 including with respect to their
admission, exclusion, and removal from the United States.8 This authority includes the power to
detain aliens pending determinations as to whether they should be removed from the country.9
The Court has predicated this broad immigration power on the government’s inherent sovereign
authority to control its borders and its relations with foreign nations.10 Notably, the Court has
“repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress
more complete than it is over’ the admission of aliens,”11 and that “Congress may make rules as
to aliens that would be unacceptable if applied to citizens.”12
Despite the government’s broad immigration power, the Supreme Court has repeatedly declared
that aliens who have physically entered the United States come under the protective scope of the
Due Process Clause of the Fifth Amendment, which applies “to all ‘persons’ within the United
States, including aliens, whether their presence here is lawful, unlawful, temporary, or
permanent.”13 Due process protections generally include the right to a hearing and a meaningful
opportunity to be heard before deprivation of a liberty interest.14 And one of the core protections
of the Due Process Clause is the “[f]reedom from bodily restraint.”15 But while the Supreme
7 Arizona v. United States, 567 U.S. 387, 394 (2012).
8 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.”).
9 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.”).
10 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”).
11 Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339
(1909)).
12 Demore v. Kim, 538 U.S. 510, 522 (2003).
13 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.
14 Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
15 Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (citing Youngberg v. Romeo, 457 U.S. 307, 316 (1982)); see also
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Court has recognized that due process considerations may constrain the federal government’s
exercise of its immigration power, there is some uncertainty regarding when these considerations
may be consequential.
Generally, aliens seeking initial entry into the United States typically have more limited
constitutional protections than aliens present within the country.16 The Supreme Court has long
held that aliens seeking entry into the United States have no constitutional rights regarding their
applications for admission,17 and the government’s detention authority in those situations seems
least constrained by due process considerations. Thus, in Shaughnessy v. United States ex rel.
Mezei, the Supreme Court upheld the indefinite detention of an alien who was denied admission
into the United States following a trip abroad.18 The Court ruled that the alien’s “temporary
harborage” on Ellis Island pending the government’s attempts to remove him did not constitute an
“entry” into the United States, and that he could be “treated as if stopped at the border.”19
Nevertheless, some courts have suggested that the constitutional limitations that apply to arriving
aliens pertain only to their procedural rights regarding their applications for admission, but do not
foreclose the availability of redress when fundamental liberty interests are implicated.20 Thus,
some lower courts have concluded that arriving aliens have sufficient due process protections
against unreasonably prolonged detention, and distinguished Mezei as a case involving the
exclusion of an alien who potentially posed a danger to national security that warranted the
alien’s detention.21 Furthermore, regardless of the extent of their due process protections, detained
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.”).
16 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)).
17 Id. at 32.
18 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215–16 (1953).
19 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.”).
20 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.”); RosalesGarcia 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)).
21 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
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arriving aliens may be entitled to at least some level of habeas corpus review, in which courts
consider whether an individual is lawfully detained by the government.22
But due process considerations become more significant once an alien has physically entered the
United States. As discussed above, the Supreme Court has long recognized that aliens who have
entered the United States, even unlawfully, are “persons” under the Fifth Amendment’s Due
Process Clause.23 That said, the Court has also suggested that “the nature of that protection may
vary depending upon [the alien’s] status and circumstance.”24 In various opinions, the Court has
suggested that at least some of the constitutional protections to which an alien is entitled may turn
upon whether the alien has been admitted into the United States or developed substantial ties to
this country.25
Consequently, the government’s authority to detain aliens who have entered the United States is
not absolute. The Supreme Court, for instance, construed a statute authorizing the detention of
aliens ordered removed to have implicit temporal limitations because construing it to allow the
indefinite detention of aliens ordered removed—at least in the case of lawfully admitted aliens
later ordered removed—would raise “serious constitutional concerns.”26 Declaring that the
government’s immigration power “is subject to important constitutional limitations,” the Court
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).
22 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).
23 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.”).
24 Id. at 694.
25 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.”).
26 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.”).
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has determined that the Due Process Clause limits the detention to “a period reasonably necessary
to secure removal.”27
Additionally, while the Supreme Court has recognized the government’s authority to detain aliens
pending formal removal proceedings,28 the Court has not decided whether the extended detention
of aliens during those proceedings could give rise to a violation of due process protections.29 But
some lower courts have concluded that due process restricts the government’s ability to
indefinitely detain at least some categories of aliens pending determinations as to whether they
should be removed from the United States.30
In sum, although the government has broad power over immigration, there are constitutional
constraints on that power. These constraints may be most significant with regard to the detention
of lawfully admitted aliens within the country, and least powerful with regard to aliens at the
threshold of initial entry into the United States.
Development of Immigration Laws Concerning Detention
From the outset, U.S. federal immigration laws have generally authorized the detention of aliens
who are subject to removal. The first U.S. law on alien detention was the Alien Enemies Act in
1798, which subjected certain aliens from “hostile” nations during times of war to being detained
and removed.31 But Congress passed no other laws on the detention of aliens for nearly a
century.32 Starting in 1875, however, Congress enacted a series of laws restricting the entry of
certain classes of aliens (e.g., those with criminal convictions), and requiring the detention of
aliens who were excludable under those laws until they could be removed.33 In construing the
27 Id. at 695, 699–701.
28 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.”).
29 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).
30 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).
31 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”).
32 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.”).
33 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 ContractLabor Laws of the United States, 52 Cong. ch. 206, § 5, 27 Stat. 569, 570 (1893).
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government’s detention authority, the Supreme Court in 1896 declared that “[w]e 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.”34 Over the next few decades,
Congress continued to enact laws generally mandating the detention and exclusion of proscribed
categories of aliens seeking entry into the United States, as well as aliens physically present in the
United States who became subject to removal.35
In 1952, Congress passed the INA, which distinguished between aliens physically arriving in the
United States and those who had entered the country.36 Aliens arriving in the country who were
found ineligible for entry were subject to “exclusion,” and those already present in the United
States who were found to be subject to expulsion were deemed “deportable.”37 For aliens placed
in exclusion proceedings, detention generally was required,38 unless immigration authorities,
based on humanitarian concerns, granted the alien “parole,” allowing the alien to enter and
remain in the United States pending a determination on whether he or she should be admitted.39 In
the case of deportable aliens, detention originally was authorized but not required, and aliens in
such proceedings could be released on bond or “conditional parole.”40 Congress later amended
the INA to require, in deportation proceedings, the detention of aliens convicted of aggravated
felonies,41 and authorized their release from custody only in limited circumstances, such as when
the alien was a lawful permanent resident (LPR) who did not pose a threat to the community or a
flight risk.42
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), which made sweeping changes to the federal immigration laws.43 IIRIRA replaced the
INA’s exclusion/deportation framework, which turned on whether an alien had physically entered
the United States, with a new framework that turned on whether an alien had been lawfully
admitted into the country by immigration authorities.44 Aliens who had not been admitted,
34 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.
35 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).
36 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (1952).
37 Id. §§ 212(a), 241(a).
38 Id. §§ 235(b), 236(a).
39 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.”).
40 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).
41 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).
42 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).
43 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546
(1996).
44 Id. § 304, 110 Stat. at 587-88 (codified at 8 U.S.C. §§ 1229, 1229a).
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including those who may have unlawfully entered the country, could be barred entry or removed
from the country based on specified grounds of inadmissibility listed under INA Section 212.45
Aliens who had been lawfully admitted, however, could be removed if they fell under grounds of
deportability specified under INA Section 237.46 A standard, “formal” removal proceeding was
established for deportable aliens and most categories of inadmissible aliens.47 But IIRIRA created
a new “expedited removal” process that applied to a subset of inadmissible aliens.48 This process
applies to arriving aliens and certain aliens who recently entered the United States without
inspection, when those aliens lack valid entry documents or attempted to procure their admission
through fraud or misrepresentation.49
IIRIRA generally authorized (but did not require) immigration authorities to detain aliens
believed to be removable pending those aliens’ formal removal proceedings, but permitted their
release on bond or “conditional parole.”50 IIRIRA, however, required the detention of aliens who
were inadmissible or deportable based on the commission of certain enumerated crimes or for
terrorist-related grounds, generally with no possibility of release from custody.51 IIRIRA also
generally required the detention of “applicants for admission,” including aliens subject to
expedited removal, pending determinations as to whether they should be removed (such aliens,
however, could still be paroled into the United States by immigration officials in their
discretion).52 This mandatory detention requirement has been applied even if those aliens were
subsequently transferred to formal removal proceedings.53 Finally, IIRIRA created a detention
45 Id. § 304, 110 Stat. at 593 (codified at 8 U.S.C. § 1229a).
46 Id. § 304, 110 Stat. at 589 (codified at 8 U.S.C. § 1229a).
47 Id. § 304, 110 Stat. at 587-89, 593 (codified at 8 U.S.C. §§ 1229, 1229a).
48 Id. § 302, 110 Stat. at 579-84 (codified at 8 U.S.C. § 1225(b)(1)(A)(i)).
49 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.
50 IIRIRA § 303(a) (codified at 8 U.S.C. § 1226(a)).
51 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.”).
52 IIRIRA § 302(a) (codified at 8 U.S.C. § 1225(b)(1)(B)(ii), (iii)(IV), (2)(A)).
53 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).
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scheme in which aliens with final orders of removal became subject to detention during a 90-day
period pending their removal, and the government could (but was not required to) continue to
detain some of those aliens after that period.54
A table showing the development of these immigration detention laws can be found in Table A-1.
Modern Statutory Detention Framework
Since IIRIRA’s enactment, the statutory framework governing detention has largely remained
constant.55 This detention framework is multifaceted, with different rules turning on whether the
alien is seeking admission into the United States or was lawfully admitted within the country;
whether the alien has committed certain enumerated criminal or terrorist acts; and whether the
alien has been issued a final administrative order of removal. Four provisions largely govern the
current immigration detention scheme:
1. INA Section 236(a) generally authorizes the detention of aliens pending formal
removal proceedings and permits (but does not require) aliens who are not
subject to mandatory detention to be released on bond or their own
recognizance;56
2. INA Section 236(c) generally requires the detention of aliens who are removable
because of specified criminal activity or terrorist-related grounds;57
3. INA Section 235(b) generally requires the detention of applicants for admission
(e.g., aliens arriving at a designated port of entry) who appear subject to
removal;58 and
4. INA Section 241(a) generally mandates the detention of aliens during a 90-day
period after formal removal proceedings, and authorizes (but does not require)
the continued detention of certain aliens after that period.59
While these statutes apply to distinct classes of aliens at different phases of the removal process,
the statutory detention framework “is not static,” and DHS’s detention authority “shifts as the
alien moves through different phases of administrative and judicial review.”60
54 IIRIRA § 305(a)(3) (codified at 8 U.S.C. § 1231(a)(2), (6)).
55 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.”).
56 8 U.S.C. § 1226(a).
57 Id. § 1226(c).
58 Id. § 1225(b)(1)(B)(ii), (iii)(IV), (2)(A).
59 Id. § 1231(a)(2), (6).
60 Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 945 (9th Cir. 2008).
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This section explores these detention statutes and their implementing regulations, including
administrative and judicial rulings that inform their scope and application. (Other detention
provisions in the INA that apply to small subsets of non-U.S. nationals, such as alien crewmen, or
arriving aliens inadmissible for health-related reasons, are not addressed in this report.61)
A table providing a comparison of these major INA detention statutes can be found in Table A-2.
Discretionary Detention Under INA Section 236(a)
INA Section 236(a) is the “default rule” for aliens placed in removal proceedings.62 The statute is
primarily administered by Immigration and Customs Enforcement (ICE), the agency within DHS
largely responsible for immigration enforcement in the interior of the United States.63 Section
236(a) authorizes immigration authorities to arrest and detain an alien pending his or her formal
removal proceedings.64 Detention under INA Section 236(a) is discretionary, and immigration
authorities are not required to detain an alien subject to removal unless the alien falls within one
of the categories of aliens subject to mandatory detention (e.g., aliens convicted of specified
crimes under INA Section 236(c), discussed later in this report).65
If ICE arrests and detains an alien under INA Section 236(a), and the alien is not otherwise
subject to mandatory detention, the agency has two options:
1. it “may continue to detain the arrested alien” pending the removal proceedings;
or
2. it “may release the alien” on bond in the amount of at least $1500, or on
“conditional parole.”66
61 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).
62 Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018).
63 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).
64 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).
65 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.
66
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 CastilloPadilla, 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).
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Generally, upon release (whether on bond or conditional parole), the alien may not receive work
authorization unless the alien is otherwise eligible (e.g., the alien is an LPR).67 And ICE may at
any time revoke a bond or conditional parole and bring the alien back into custody.68
In the event of an alien’s release, ICE may opt to enroll the alien in an Alternatives to Detention
(ATD) program, which allows ICE the ability to monitor and supervise the released alien to
ensure his or her eventual appearance at a removal proceeding.69
Initial Custody Determination and Administrative Review
Following the arrest of an alien not subject to mandatory detention, an immigration officer may,
at any time during formal removal proceedings, determine whether the alien should remain in
custody or be released.70 But when an alien is arrested without a warrant, DHS regulations
provide that the immigration officer must make a custody determination within 48 hours of the
alien’s arrest, unless there is “an emergency or other extraordinary circumstance” that requires
“an additional reasonable period of time” to make the custody determination.71 DHS has defined
“emergency or other extraordinary circumstance” to mean a “significant infrastructure or
logistical disruption” (e.g., natural disaster, power outage, serious civil disturbance); an “influx of
large numbers of detained aliens that overwhelms agency resources”; and other unique facts and
circumstances “including, but not limited to, the need for medical care or a particularized
compelling law enforcement need.”72
67 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.
68 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.”).
69 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.
70 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”).
71 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).
72 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).
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After ICE’s initial custody determination, an alien may, at any time during the removal
proceedings, request review of that decision at a bond hearing before an immigration judge (IJ)
within the Department of Justice’s (DOJ’s) Executive Office for Immigration Review.73 While the
alien may request a bond hearing, INA Section 236(a) does not require a hearing to be provided at
any particular time.74 If there is a bond hearing, regulations specify that it “shall be separate and
apart from, and shall form no part of, any deportation or removal hearing or proceeding.”75
During these bond proceedings, the IJ may, under INA Section 236(a), determine whether to keep
the alien in custody or release the alien, and the IJ also has authority to set the bond amount.76
Following the IJ’s custody decision, the alien may obtain a later bond redetermination only “upon
a showing that the alien’s circumstances have changed materially since the prior bond
redetermination.”77
Both the alien and DHS may appeal the IJ’s custody or bond determination to the Board of
Immigration Appeals (BIA), the highest administrative body charged with interpreting federal
immigration laws.78 The filing of an appeal generally will not stay the IJ’s decision or otherwise
affect the ongoing removal proceedings.79 The BIA, however, may stay the IJ’s custody
determination on its own motion or when DHS appeals that decision and files a motion for a
discretionary stay.80 Moreover, if ICE had determined that the alien should not be released or had
set bond at $10,000 or greater, any order of the IJ authorizing release (on bond or otherwise) is
automatically stayed upon DHS’s filing of a notice of intent to appeal with the immigration court
within one business day of the IJ’s order, and the IJ’s order will typically remain held in abeyance
pending the BIA’s decision on appeal.81
73 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).
74 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).
75 8 C.F.R. § 1003.19(d).
76 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).
77 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).
78 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]”).
79 8 C.F.R. § 1236.1(d)(4).
80 Id. § 1003.19(i)(1).
81 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
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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).
Standard and Criteria for Making Custody Determinations
Following the enactment of IIRIRA, the DOJ promulgated regulations to govern discretionary
detention and release decisions under INA Section 236(a).82 These regulations require the alien to
“demonstrate to the satisfaction of the officer that . . . release would not pose a danger to property
or persons, and that the alien is likely to appear for any future proceeding.”83 Based on this
regulation, the BIA has held that the alien has the burden of showing that he or she should be
released from custody, and “[o]nly if an alien demonstrates that he does not pose a danger to the
community should an [IJ] continue to a determination regarding the extent of flight risk posed by
the alien.”84
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).
82 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).
83 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)).
84 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)).
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Some federal courts, however, have held that if an alien’s detention under INA Section 236(a)
becomes prolonged, a bond hearing must be held where the burden shifts to the government to
prove that the alien’s continued detention is warranted.85 For example, the U.S. Court of Appeals
for the Ninth Circuit (Ninth Circuit86) has reasoned that, given an individual’s “substantial liberty
interest” in avoiding physical restraint, the government should prove by clear and convincing
evidence that the detention is justified.87 The Supreme Court has not yet addressed the proper
allocation of the burden of proof for custody determinations under INA Section 236(a). On the
one hand, the Court has held that the statute does not itself require the government to prove that
an alien’s continued detention is warranted or to afford the alien a bond hearing.88 On the other
hand, the Court has not decided whether due process considerations nonetheless compel the
government to bear the burden of proving that the alien should remain in custody if detention
becomes prolonged.89
While INA Section 236(a) and its implementing regulations provide standards for determining
whether an alien should be released from ICE custody, they do not specify the factors that may be
considered in weighing a detained alien’s potential danger or flight risk.90 But the BIA has
instructed that an IJ may consider, among other factors, these criteria in assessing an alien’s
custody status:
whether the alien has a fixed address in the United States;
the alien’s length of residence in the United States;
whether the alien has family ties in the United States;
the alien’s employment history;
the alien’s record of appearance in court;
the alien’s criminal record, including the extent, recency, and seriousness of the
criminal offenses;
85 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.”).
86 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.
87 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).
88 Jennings v. Rodriguez, 138 S. Ct. 830, 847–48 (2018).
89 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.”).
90 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”).
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the alien’s history of immigration violations;
any attempts by the alien to flee prosecution or otherwise escape from
authorities; and
the alien’s manner of entry to the United States.91
The BIA and other authorities have generally applied these criteria in reviewing custody
determinations.92 In considering an alien’s danger to the community or flight risk, “any evidence
in the record that is probative and specific can be considered.”93 The BIA has also instructed that,
in deciding whether an alien presents a danger to the community and should not be released from
custody, an IJ should consider both direct and circumstantial evidence of dangerousness,
including whether the facts and circumstances raise national security considerations.94 In addition,
although bond proceedings are “separate and apart from” formal removal proceedings,95 evidence
obtained during a removal hearing “may be considered during a custody hearing so long as it is
made part of the bond record.”96
Limitations to Administrative Review of Custody Determinations
Under DOJ regulations, an IJ may not determine the conditions of custody for classes of aliens
subject to mandatory detention.97 In these circumstances, ICE retains exclusive authority over the
alien’s custody status.98 These limitations apply to
arriving aliens in formal removal proceedings (including arriving aliens paroled
into the United States);
91 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).
92 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).
93 Matter of Guerra, 24 I. & N. Dec. at 40–41.
94 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.”).
95 8 C.F.R. § 1003.19(d).
96 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)).
97 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).
98 Matter of X-K-, 23 I. & N. Dec. at 732.
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aliens in formal removal proceedings who are deportable on certain security and
related grounds (e.g., violating espionage laws, criminal activity that “endangers
public safety or national security,” terrorist activities, severe violations of
religious freedom); and
aliens in formal removal proceedings who are subject to mandatory detention
under INA Section 236(c) based on the commission of certain enumerated
crimes.99
Although aliens who fall within these categories may not request a custody determination before
an IJ, they may still seek a redetermination of custody conditions from ICE.100 In addition, aliens
detained under INA Section 236(c) based on criminal or terrorist-related conduct may request a
determination by an IJ that they do not properly fall within that designated category, and that they
are thus entitled to a bond hearing.101
Judicial Review of Custody Determinations
An alien may generally request review of ICE’s custody determination at a bond hearing before
an IJ, and the alien may also appeal the IJ’s custody decision to the BIA.102 INA Section 236(e),
however, expressly bars judicial review of a decision whether to detain or release an alien who is
subject to removal:
The Attorney General’s discretionary judgment regarding the application of this section
shall not be subject to review. No court may set aside any action or decision by the Attorney
General under this section regarding the detention or release of any alien or the grant,
revocation, or denial of bond or parole.103
Even so, the Supreme Court has determined that, absent clear congressional intent, INA
provisions barring judicial review do not foreclose the availability of review in habeas corpus
99 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).
100 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).
101 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).
102 8 C.F.R. §§ 1003.19(a), 1236.1(d)(1), 1236.1(d)(3)(i).
103 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.”).
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proceedings because “[i]n the immigration context, ‘judicial review’ and ‘habeas corpus’ have
historically different meanings.”104 Thus, despite INA Section 236(e)’s limitation on judicial
review, the Court has held that the statute does not bar federal courts from reviewing, in habeas
corpus proceedings, an alien’s statutory or constitutional challenge to his detention.105 The Court
has reasoned that an alien’s challenge to “the statutory framework” permitting his detention is
distinct from a challenge to the “discretionary judgment” or operational “decision” whether to
detain the alien, which is foreclosed from judicial review under INA Section 236(e).106 Lower
courts have similarly held that they retain jurisdiction to review habeas claims that raise
constitutional or statutory challenges to detention.107 For that reason, although a detained alien
may not seek judicial review of the government’s discretionary decision whether to keep him or
her detained, the alien may challenge the legal authority for that detention under the federal
habeas statute.108
The Supreme Court has also considered whether a separate statute, INA Section 242(b)(9), bars
judicial review of detention challenges.109 That statute provides:
Judicial review of all questions of law and fact, including interpretation and application of
constitutional and statutory provisions, arising from any action taken or proceeding brought
to remove an alien from the United States under this subchapter shall be available only in
judicial review of a final order [of removal] under this section. 110
The Court has construed INA Section 242(b)(9) as barring review of three specific actions (except
as part of the review of a final order of removal): (1) an order of removal, (2) the government’s
decision to seek removal (including the decision to detain the alien), and (3) the process by which
104 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.”).
105 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.”).
106 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).
107 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)”).
108 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.”).
109 Jennings, 138 S. Ct. at 841.
110 8 U.S.C. § 1252(b)(9).
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an alien’s removability would be determined.111 But the Court has declined to read the statute as
barring all claims that could technically “arise from” one of those three actions.112 Thus, the Court
has held that INA Section 242(b)(9) does not bar review of claims challenging the government’s
authority to detain aliens because such claims do not purport to challenge an order of removal, the
government’s decision to seek removal, or the process by which an alien’s removability is
determined.113
Mandatory Detention of Criminal Aliens Under INA Section 236(c)
While INA Section 236(a) generally authorizes immigration officials to detain aliens pending
their formal removal proceedings, INA Section 236(c) requires the detention of aliens who are
subject to removal because of specified criminal or terrorist-related grounds.114
Aliens Subject to Detention Under INA Section 236(c)
INA Section 236(c)(1) covers aliens who fall within one of four categories:
1. An alien who is inadmissible under INA Section 212(a)(2) based on the
commission of certain enumerated crimes, including a crime involving moral
turpitude, a controlled substance violation, a drug trafficking offense, a human
trafficking offense, money laundering, and any two or more criminal offenses
resulting in a conviction for which the total term of imprisonment is at least five
years.
2. An alien who is deportable under INA Section 237(a)(2) based on the conviction
of certain enumerated crimes, including an aggravated felony, two or more
crimes involving moral turpitude not arising out of a single scheme of criminal
misconduct, a controlled substance violation (other than a single offense
involving possession of 30 grams or less of marijuana), and a firearm offense.
3. An alien who is deportable under INA Section 237(a)(2)(A)(i) based on the
conviction of a crime involving moral turpitude (generally committed within five
years of admission) for which the alien was sentenced to at least one year of
imprisonment.
4. An alien who is inadmissible or deportable for engaging in terrorist activity,
being a representative or member of a terrorist organization, being associated
with a terrorist organization, or espousing or inciting terrorist activity.115
111 Preap, 139 S. Ct. at 962; Jennings, 138 S. Ct. at 841.
112 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.
113 Preap, 139 S. Ct. at 962; Jennings, 138 S. Ct. at 841.
114 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).
115 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
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The statute instructs that ICE “shall take into custody any alien” who falls within one of these
categories “when the alien is released [from criminal custody], without regard to whether the
alien is released on parole, supervised release, or probation, and without regard to whether the
alien may be arrested or imprisoned again for the same offense.”116
Prohibition on Release from Custody Except in Special Circumstances
While INA Section 236(c)(1) requires ICE to detain aliens who are removable on enumerated
criminal or terrorist-related grounds, INA Section 236(c)(2) provides that ICE “may release an
alien described in paragraph (1) only if” the alien’s release “is necessary to provide protection to
a witness, a potential witness, a person cooperating with an investigation into major criminal
activity, or an immediate family member or close associate of a witness, potential witness, or
person cooperating with such an investigation,” and the alien shows that he or she “will not pose
a danger to the safety of other persons or of property and is likely to appear for any scheduled
proceeding.”117 Under the statute, “[a] decision relating to such release shall take place in
accordance with a procedure that considers the severity of the offense committed by the alien.”118
Without these special circumstances, an alien detained under INA Section 236(c) generally must
remain in custody pending his or her removal proceedings.119 Furthermore, given the mandatory
nature of the detention, the alien may not be released on bond or conditional parole, or request a
custody redetermination at a bond hearing before an IJ.120
Limited Review to Determine Whether Alien Falls Within Scope of INA
Section 236(c)
Although an alien detained under INA Section 236(c) has no right to a bond hearing before an IJ,
DOJ regulations allow the alien to seek an IJ’s determination “that the alien is not properly
included” within the category of aliens subject to mandatory detention under INA Section
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.
116 8 U.S.C. § 1226(c)(1).
117 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”).
118 8 U.S.C. § 1226(c)(2).
119 Id.
120
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.
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236(c).121 The BIA has determined that, during this review, the IJ should conduct an independent
assessment, rather than a “perfunctory review,” of DHS’s decision to charge the alien with one of
the specified criminal or terrorist-related grounds of removability under INA Section 236(c).122
According to the BIA, the alien is not “properly included” within the scope of INA Section 236(c)
if the IJ concludes that DHS “is substantially unlikely to establish at the merits hearing, or on
appeal, the charge or charges that would otherwise subject the alien to mandatory detention.”123 If
the IJ determines that the alien is not properly included within INA Section 236(c), the IJ may
then consider whether the alien is eligible for bond under INA Section 236(a).124
Constitutionality of Mandatory Detention
The mandatory detention requirements of INA Section 236(c) have been challenged as
unconstitutional but, to date, none of these challenges have succeeded.125 In Demore v. Kim, an
LPR (Kim) who had been detained under INA Section 236(c) for six months argued that his
detention violated his right to due process because immigration authorities had made no
determination that he was a danger to society or a flight risk.126 The Ninth Circuit upheld a federal
district court’s ruling that INA Section 236(c) was unconstitutional.127 The Ninth Circuit
determined that INA Section 236(c) violated Kim’s right to due process as an LPR because it
afforded him no opportunity to seek bail.128
The Supreme Court reversed the Ninth Circuit’s decision, holding that mandatory detention of
certain aliens pending removal proceedings was “constitutionally permissible.”129 The Court
noted that it had previously “endorsed the proposition that Congress may make rules as to aliens
that would be unacceptable if applied to citizens,” and the Court also cited its “longstanding view
that the Government may constitutionally detain deportable aliens during the limited period
necessary for their removal proceedings, . . .”130 The Court concluded that “Congress, justifiably
concerned that deportable criminal aliens who are not detained continue to engage in crime and
121 8 C.F.R. § 1003.19(h)(2)(ii).
122 Matter of Joseph, 22 I. & N. Dec. 799, 800, 805 (BIA 1999).
123 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).
124 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).
125 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].”).
126 Demore v. Kim, 538 U.S. 510, 513–14, 531 (2003).
127 Kim v. Ziglar, 276 F.3d 523, 539 (2002), rev’d sub nom. Demore v. Kim, 538 U.S. 510 (2003).
128 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).
129 Demore, 538 U.S. at 513, 531.
130 Id. at 522, 526.
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fail to appear for their removal hearings in large numbers, may require that persons such as [Kim]
be detained for the brief period necessary for their removal proceedings.”131
The Court also distinguished its 2001 decision in Zadvydas v. Davis, where it declared that
“serious constitutional concerns” would be raised if lawfully admitted aliens were indefinitely
detained after removal proceedings against them had been completed.132 The Court reasoned that,
unlike the post-order of removal detention statute at issue in Zadvydas, INA Section 236(c)
“governs detention of deportable criminal aliens pending their removal proceedings,” and thus
“serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their
removal proceedings, . . .”133 Yet in Zadvydas, removal was “no longer practically attainable” for
the detained aliens following the completion of their proceedings, and so their continued
detention “did not serve its purported immigration purpose.”134 The Court further distinguished
Zadvydas because that case involved a potentially indefinite period of detention, while detention
under INA Section 236(c) typically lasts for a “much shorter duration” and has a “definite
termination point”—the end of the removal proceedings.135
Although the Supreme Court in Demore ruled that mandatory detention pending removal
proceedings is not unconstitutional per se, the Court did not address whether there are any
constitutional limits to the duration of such detention under INA Section 236(c).136 Some lower
courts, however, have construed Demore to apply only to relatively brief periods of detention.137
Ultimately, in Jennings v. Rodriguez, the Supreme Court held that DHS has the statutory authority
to indefinitely detain aliens pending their removal proceedings, but did not decide whether such
prolonged detention is constitutionally permissible.138
131 Id. at 513.
132 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.
133 Demore, 538 U.S. at 527–28 (emphasis in original).
134 Id. at 527.
135 Id. at 529.
136 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).
137 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.”).
138 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.
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Meaning of “When the Alien Is Released”
INA Section 236(c)(1) instructs that ICE “shall take into custody any alien” who falls within one
of the enumerated criminal or terrorist-related grounds “when the alien is released” from criminal
custody.139 And under INA Section 236(c)(2), ICE may not release “an alien described in
paragraph (1)” except for witness protection purposes.140
In its 2019 decision in Nielsen v. Preap, the Supreme Court held that INA Section 236(c)’s
mandatory detention scheme covers any alien who has committed one of the enumerated criminal
or terrorist-related offenses, no matter when the alien had been released from criminal
incarceration.141 The Court observed that INA Section 236(c)(2)’s mandate against release applies
to “an alien described in paragraph (1)” of that statute, and that INA Section 236(c)(1), in turn,
describes aliens who have committed one of the enumerated crimes.142 The Court determined
that, although INA Section 236(c)(1) instructs that such aliens be taken into custody “when the
alien is released,” the phrase “when . . . released” does not describe the alien, and “plays no role
in identifying for the [DHS] Secretary which aliens she must immediately arrest.”143 The Court
thus held that the scope of aliens subject to mandatory detention under INA Section 236(c) “is
fixed by the predicate offenses identified” in INA Section 236(c)(1), no matter when the alien was
released from criminal custody.144
The Court also opined that, even if INA Section 236(c) requires an alien to be detained
immediately upon release from criminal custody, ICE’s failure to act promptly would not bar the
agency from detaining the alien without bond.145 The Court relied, in part, on its 1990 decision in
United States v. Montalvo-Murillo, which held that the failure to provide a criminal defendant a
prompt bond hearing as required by federal statute did not mandate the defendant’s release from
criminal custody.146 Citing Montalvo-Murillo, the Court in Preap recognized the principle that if a
statute fails to specify a penalty for the government’s noncompliance with a statutory deadline,
the courts will not “‘impose their own coercive sanction.’”147 In short, the Court declared, “it is
139 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)).
140 8 U.S.C. § 1226(c)(2).
141 Nielsen v. Preap, 139 S. Ct. 954, 971 (2019).
142 Id. at 963–64.
143
Id. at 965 (emphasis in original).
144 Id.
145 Id. at 967.
146 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.”).
147 Preap, 139 S. Ct. at 967 (quoting Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003)) (internal quotation
omitted).
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hard to believe that Congress made [ICE’s] mandatory detention authority vanish at the stroke of
midnight after an alien’s release” from criminal custody.148
The Court thus reversed a Ninth Circuit decision that had restricted the application of INA
Section 236(c) to aliens detained “promptly” upon their release from criminal custody, but noted
that its ruling on the proper interpretation of INA Section 236(c) “does not foreclose as-applied
challenges—that is, constitutional challenges to applications of the statute as we have now read
it.”149
In sum, based on the Court’s ruling in Preap, INA Section 236(c) authorizes ICE to detain
covered aliens without bond pending their formal removal proceedings, regardless of whether
they were taken into ICE custody immediately or long after their release from criminal
incarceration. That said, the Court has left open the question of whether the mandatory detention
of aliens long after their release from criminal custody is constitutionally permissible.
Mandatory Detention of Applicants for Admission Under INA
Section 235(b)
The INA provides for the mandatory detention of aliens who are seeking initial entry into the
United States, or who have entered the United States without inspection, and who are believed to
be subject to removal. Under INA Section 235(b), an “applicant for admission,” defined to
include both an alien arriving at a designated port of entry and an alien present in the United
States who has not been admitted,150 is generally detained pending a determination about whether
the alien should be admitted into the United States.151 The statute thus covers aliens arriving at the
U.S. border (or its functional equivalent), as well as aliens who had entered the United States
without inspection, and are later apprehended within the country.152
148 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).
149 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).
150 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).
151 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.”).
152 8 U.S.C. § 1225(a)(1), (b)(1)(B), (2)(A); 8 C.F.R. § 235.3(b), (c).
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The statute’s mandatory detention scheme covers (1) applicants for admission who are subject to
a streamlined removal process known as “expedited removal” and (2) applicants for admission
who are not subject to expedited removal, and who are placed in formal removal proceedings.153
Applicants for Admission Subject to Expedited Removal
INA Section 235(b)(1) provides for the expedited removal of arriving aliens who are inadmissible
under INA Section 212(a)(6)(C) or (a)(7) because they lack valid entry documents or have
attempted to procure admission by fraud or misrepresentation.154 The statute also authorizes the
Secretary of Homeland Security to expand the use of expedited removal to aliens present in the
United States without being admitted or paroled if they have been in the country less than two
years and are inadmissible on the same grounds.155 Based on this authority, DHS has employed
expedited removal mainly to (1) arriving aliens; (2) aliens who arrived in the United States by sea
within the last two years, who have not been admitted or paroled by immigration authorities; and
(3) aliens found in the United States within 100 miles of the border within 14 days of entering the
country, who have not been admitted or paroled by immigration authorities.156 More recently,
however, DHS has expanded the use of expedited removal to aliens who have not been admitted
or paroled, and who have been in the United States for less than two years (a legal challenge to
this expansion is pending at the time of this report’s publication).157
Generally, an alien subject to expedited removal may be removed without a hearing or further
review unless the alien indicates an intention to apply for asylum or a fear of persecution if
removed to a particular country.158 If the alien indicates an intention to apply for asylum or a fear
153 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-enforcementoverview (last published Aug. 6, 2018); Immigration Enforcement-Removal, U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, https://www.ice.gov/removal (last updated Aug. 2, 2019).
154 8 U.S.C. § 1225(b)(1)(A)(i); see also id. § 1182(a)(6)(C), (7).
155 Id. § 1225(b)(1)(A)(i), (iii).
156 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.
157 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.
158 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. §§
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of persecution, he or she will typically be referred to an asylum officer within DHS’s U.S.
Citizenship and Immigration Services (USCIS)159 to determine whether the alien has a “credible
fear” of persecution or torture.160 If the alien establishes a credible fear, he or she will be placed in
“formal” removal proceedings under INA Section 240, and may pursue asylum and related
protections.161
Detention During Expedited Removal Proceedings
INA Section 235(b)(1) and DHS regulations provide that an alien “shall be detained” pending a
determination on whether the alien is subject to expedited removal, including during any credible
fear determination; and if the alien is found not to have a credible fear of persecution or torture,
the alien will remain detained until his or her removal.162 Typically, the alien will be initially
detained by Customs and Border Protection (CBP) for no more than 72 hours for processing (e.g.,
fingerprints, photographs, initial screening), and the alien will then be transferred to ICE custody
pending a credible fear determination if the alien is subject to expedited removal and requests
asylum or expresses a fear of persecution.163
Under INA Section 212(d)(5), however, DHS may parole an applicant for admission (which
includes an alien subject to expedited removal) on a case-by-case basis “for urgent humanitarian
reasons or significant public benefit.”164 Based on this authority, DHS has issued regulations that
235.3(b)(5)(i), 235.3(b)(5)(iv), 235.6(a)(2)(ii).
159 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-migrantasylum-interviews-idUSKCN1SF2N0.
160 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).
161 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).
162 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”).
163 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).
164 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).
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allow parole of an alien in expedited removal proceedings, but only when parole “is required to
meet a medical emergency or is necessary for a legitimate law enforcement objective.”165
Aliens Who Establish a Credible Fear of Persecution or Torture
INA Section 235(b)(1) provides that aliens who establish a credible fear of persecution or torture
“shall be detained for further consideration of the application for asylum” in formal removal
proceedings.166 The alien will typically remain in ICE custody during those proceedings.167 As
noted above, DHS retains the authority to parole applicants for admission, and typically will
interview the alien to determine his or her eligibility for parole within seven days after the
credible fear finding.168 Under DHS regulations, the following categories of aliens may be
eligible for parole, provided they do not present a security or flight risk:
persons with serious medical conditions;
women who have been medically certified as pregnant;
juveniles (defined as individuals under the age of 18) who can be released to a
relative or nonrelative sponsor;
persons who will be witnesses in proceedings conducted by judicial,
administrative, or legislative bodies in the United States; and
persons “whose continued detention is not in the public interest.”169
Under DHS regulations, a grant of parole ends upon the alien’s departure from the United States,
or, if the alien has not departed, at the expiration of the time for which parole was authorized.170
Parole may also be terminated upon accomplishment of the purpose for which parole was
165 8 C.F.R. § 235.3(b)(2)(iii), (4)(ii), (5)(i).
166 8 U.S.C. § 1225(b)(1)(B)(ii).
167 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).
168 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).
169 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.
170 8 C.F.R. § 212.5(e)(1).
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authorized or when DHS determines that “neither humanitarian reasons nor public benefit
warrants the continued presence of the alien in the United States.”171
For some time, the BIA took the view that aliens apprehended after unlawfully entering the
United States (i.e., not apprehended at a port of entry), and who were first screened for expedited
removal but then placed in formal removal proceedings following a positive credible fear
determination, were not subject to mandatory detention under INA Section 235(b)(1).172 Instead,
the BIA determined, these aliens could be released on bond under INA Section 236(a) because,
unlike arriving aliens, they did not fall within the designated classes of aliens who are ineligible
for bond hearings under DOJ regulations.173 Thus, the BIA concluded, INA Section 235(b)(1)’s
mandatory detention scheme “applie[d] only to arriving aliens.”174
In 2019, Attorney General (AG) William Barr overturned the BIA’s decision and ruled that INA
Section 235(b)(1)’s mandatory detention scheme applies to all aliens placed in formal removal
proceedings after a positive credible fear determination, regardless of their manner of entry.175
The AG reasoned that INA Section 235(b)(1) plainly mandates that aliens first screened for
expedited removal who establish a credible fear “shall be detained” until completion of their
formal removal proceedings, and that the INA only authorizes their release on parole.176 The AG
also relied on the Supreme Court’s 2018 decision in Jennings v. Rodriguez, which construed INA
Section 235(b) as mandating the detention of covered aliens unless they are paroled.177 Finally,
the AG concluded, even though nonarriving aliens subject to expedited removal are not expressly
barred from seeking bond under DOJ regulations, that regulatory framework “does not provide an
exhaustive catalogue of the classes of aliens who are ineligible for bond.”178
In a later class action lawsuit, the U.S. District Court for the Western District of Washington ruled
that INA Section 235(b)(1)’s mandatory detention scheme is unconstitutional, and that aliens
apprehended within the United States who are first screened for expedited removal and placed in
formal removal proceedings following a positive credible fear determination are “constitutionally
entitled to a bond hearing before a neutral decisionmaker” pending consideration of their asylum
171 Id. § 212.5(e)(2)(i).
172 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).
173 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.
174 Matter of X-K-, 23 I. & N. Dec. at 735.
175 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).
176 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.
177 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.
178 Matter of M-S-, 27 I. & N. Dec. at 518.
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claims.179 The court thus ordered the government to (1) provide bond hearings within seven days
of a bond hearing request by detained aliens who entered the United States without inspection,
were first screened for expedited removal, and were placed in formal removal proceedings after a
positive credible fear determination; (2) release any aliens within that class whose detention time
exceeds that seven-day limit and who did not have a bond hearing; and (3) if a bond hearing is
held, require DHS to prove that continued detention is warranted to retain custody of the alien.180
The DOJ has appealed the district court’s ruling to the Ninth Circuit.181 The Ninth Circuit has
stayed the lower court’s injunction pending appeal insofar as it requires the government to hold
bond hearings within seven days, to release aliens whose detention time exceeds that limit, and to
require DHS to have the burden of proof.182 But the court declined to stay the lower court’s order
that aliens apprehended within the United States who are initially screened for expedited removal,
and placed in formal removal proceedings after a positive credible fear determination, are
“constitutionally entitled to a bond hearing.”183 Thus, the Ninth Circuit’s order “leaves the preexisting framework in place” in which unlawful entrants transferred to formal removal
proceedings after a positive credible fear determination were eligible for bond hearings.184
As a result of the district court’s ruling, aliens apprehended within the United States who are
initially screened for expedited removal and transferred to formal removal proceedings following
a positive credible fear determination remain eligible to seek bond pending their formal removal
proceedings. On the other hand, arriving aliens who are transferred to formal removal
proceedings are not covered by the court’s order,185 and generally must remain detained pending
those proceedings, unless DHS grants parole.186
179 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)).
180 Id. at *10.
181 See Padilla v. U.S. Immigration and Customs Enforcement, No. 19-35565 (9th Cir. July 5, 2019).
182 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).
183 Id.
184 Id.
185 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.”).
186 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
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Applicants for Admission Who Are Not Subject to Expedited Removal
INA Section 235(b)(2) covers applicants for admission who are not subject to expedited
removal.187 This provision would thus cover, for example, unadmitted aliens who are inadmissible
on grounds other than those described in INA Section 212(a)(6)(C) and (a)(7) (e.g., because the
alien is deemed likely to become a public charge, or the alien has committed specified crimes).188
The statute would also cover aliens who had entered the United States without inspection, but
who are not subject to expedited removal because they were not apprehended within two years
after their arrival in the country.189
The INA provides that aliens covered by INA Section 235(b)(2) “shall be detained” pending
formal removal proceedings before an IJ.190 As discussed above, however, DHS may parole
applicants for admission pending their removal proceedings, and agency regulations specify
circumstances in which parole may be warranted (e.g., where detention “is not in the public
interest”).191 Absent parole, aliens covered by INA Section 235(b)(2) generally must be detained
and cannot seek their release on bond.192
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).
187 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)”).
188 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).
189 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.”).
190 8 U.S.C. § 1225(b)(2)(A); 8 C.F.R. § 235.3(b)(3).
191 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.”).
192 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).
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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).
Detention of Aliens Following Completion of Removal
Proceedings Under INA Section 241(a)
INA Section 241(a) governs the detention of aliens after the completion of removal
proceedings.193 The statute’s detention authority covers two categories of aliens: (1) aliens with a
final order of removal who are subject to detention during a 90-day “removal period” pending
efforts to secure their removal; and (2) certain aliens who may (but are not required to) be
detained beyond the 90-day removal period.194 The Supreme Court has construed the post-order
of removal detention statute as having implicit temporal limitations.195
193 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).
194 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).”).
195 See Zadvydas, 533 U.S. at 682; Clark v. Martinez, 543 U.S. 371, 378 (2005).
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Detention During 90-Day Removal Period
INA Section 241(a)(1) provides that DHS “shall remove” an alien ordered removed “within a
period of 90 days,” and refers to this 90-day period as the “removal period.”196 The statute
specifies that the removal period “begins on the latest of the following”:197
The date the order of removal becomes administratively final.198
If the alien petitions for review of the order of removal,199 and a court orders a
stay of removal, the date of the court’s final order in the case.200
If the alien is detained or confined for nonimmigration purposes (e.g., criminal
incarceration), the date the alien is released from that detention or
confinement.201
INA Section 241(a)(2) instructs that DHS “shall detain” an alien during the 90-day removal
period.202 The statute also instructs that “[u]nder no circumstance during the removal period” may
DHS release an alien found inadmissible on criminal or terrorist-related grounds under INA
Section 212(a)(2) or (a)(3)(B) (e.g., a crime involving moral turpitude); or who has been found
deportable on criminal or terrorist-related grounds under INA Section 237(a)(2) or (a)(4)(B) (e.g.,
an aggravated felony conviction).203
The former Immigration and Naturalization Service (INS) previously issued guidance interpreting
these provisions as only authorizing, but not requiring, the detention of “non-criminal aliens”
during the 90-day removal period.204 There is no indication that DHS has rescinded that policy.
But according to the agency, the statute generally requires the detention during the removal
period of terrorists and aliens who have committed the specified crimes enumerated in the
196 8 U.S.C. § 1231(a)(1)(A).
197 Id. § 1231(a)(1)(B) (emphasis added).
198 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.
199 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).
200 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.”).
201 8 U.S.C. § 1231(a)(1)(B).
202 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).
203 8 U.S.C. § 1231(a)(2).
204 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).
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statute.205 Under this policy, however, if a criminal alien subject to mandatory detention has been
granted withholding of removal or protection under the Convention Against Torture (CAT), the
alien may be released if the agency is not pursuing the alien’s removal.206
While INA Section 241(a)(1) specifies a 90-day removal period, it also provides that this period
may be extended beyond 90 days and that the alien may remain in detention during this extended
period “if the alien fails or refuses to make timely application in good faith for travel or other
documents necessary to the alien’s departure or conspires or acts to prevent the alien’s removal
subject to an order of removal.”207
INA Section 241(a)(3) provides that, if the alien either “does not leave or is not removed within
the removal period,” the alien will be released and “subject to supervision” pending his or her
removal.208 DHS regulations state that the order of supervision must specify the conditions of
release, including requirements that the alien (1) periodically report to an immigration officer and
provide relevant information under oath; (2) continue efforts to obtain a travel document and help
DHS obtain the document; (3) report as directed for a mental or physical examination; (4) obtain
advance approval of travel beyond previously specified times and distances; and (5) provide ICE
with written notice of any change of address.209
Continued Detention Beyond Removal Period
Typically, an alien with a final order of removal is subject to detention during the 90-day removal
period, and must be released under an order of supervision if the alien does not leave or is not
205 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.”).
206 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).
207 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).
208 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.
209 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).
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removed within that period.210 INA Section 241(a)(6), however, states that an alien “may be
detained beyond the removal period”211 if the alien falls within one of three categories:
1. an alien ordered removed who is inadmissible under INA Section 212(a) (e.g., an
arriving alien who lacks valid entry documents);
2. an alien ordered removed who is deportable under INA Sections 237(a)(1)(C)
(failure to maintain or comply with conditions of nonimmigrant status), 237(a)(2)
(specified crimes including crimes involving moral turpitude, aggravated
felonies, and controlled substance offenses), or 237(a)(4) (security and terroristrelated grounds); or
3. an alien whom DHS has determined “to be a risk to the community or unlikely to
comply with the order of removal.”212
DHS regulations provide that, before the end of the 90-day removal period, ICE will conduct a
“custody review” for a detained alien who falls within one of the above categories, and whose
removal “cannot be accomplished during the period, or is impracticable or contrary to the public
interest,” to determine whether further detention is warranted after the removal period ends.213
The regulations list factors that ICE should consider in deciding whether to continue detention,
including the alien’s disciplinary record, criminal record, mental health reports, evidence of
rehabilitation, history of flight, prior immigration history, family ties in the United States, and any
other information probative of the alien’s danger to the community or flight risk.214
ICE may release the alien after the removal period ends if the agency concludes that travel
documents for the alien are unavailable (or that removal “is otherwise not practicable or not in the
public interest”); the alien is “a non-violent person” and likely will not endanger the community;
the alien likely will not violate any conditions of release; and the alien does not pose a significant
flight risk.215 Upon the alien’s release, ICE may impose certain conditions, including (but not
limited to) those specified for the release of aliens during the 90-day removal period, such as
periodic reporting requirements.216
210 8 U.S.C. § 1231(a)(2), (3).
211 Id. § 1231(a)(6) (emphasis added).
212 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.”).
213 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).
214 Id. § 241.4(f), (h)(3).
215 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”).
216 Id. § 241.4(j)(1); see also id. § 241.5 (listing the conditions of release pursuant to an order of supervision during 90day 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).
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If ICE decides to maintain custody of the alien, it may retain custody authority for up to three
months after the expiration of the 90-day removal period (i.e., up to 180 days after final order of
removal).217 At the end of that three-month period, ICE may either release the alien if he or she
has not been removed (in accordance with the factors and criteria for supervised release), or refer
the alien to its Headquarters Post-Order Detention Unit (HQPDU) for further custody review.218 If
the alien remains in custody after that review, the HQPDU must conduct another review within
one year (i.e., 18 months after final order of removal), and (if the alien is still detained) annually
thereafter.219
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).
Constitutional Limitations to Post-Order of Removal Detention
Although INA Section 241(a) authorizes (and in some cases requires) DHS to detain an alien after
removal proceedings, the agency’s post-order of removal detention authority has been subject to
legal challenge, particularly when the alien remained detained indefinitely pending efforts to
secure his or her removal to another country.220 Eventually, in Zadvydas v. Davis, a case involving
the prolonged detention of lawfully admitted aliens who had been ordered removed, the Supreme
Court interpreted the statute consistently with due process principles to limit detention generally
to a six-month period after a final order of removal.221
In Zadvydas, the Supreme Court considered whether INA Section 241(a)’s post-order of removal
detention statute should be construed as having an implicit time limitation to avoid serious
constitutional concerns.222 The Court determined that “[a] statute permitting indefinite detention
217 8 C.F.R. § 241.4(k)(1)(ii).
218 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).
219 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).
220 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).
221 See Zadvydas, 533 U.S. 678 (2001).
222 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
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of an alien would raise a serious constitutional problem” under the Due Process Clause.223 The
Court reasoned that “[f]reedom from imprisonment—from government custody, detention, or
other forms of physical restraint—lies at the heart of the liberty that Clause protects,” and found
no justifications for the indefinite detention of aliens whose removal is no longer practicable.224
While the Court recognized that a potentially indefinite detention scheme may be upheld if it is
“limited to specially dangerous individuals and subject to strong procedural protections,”225 INA
Section 241(a)(6)’s post-removal period detention scheme was different because it applied
“broadly to aliens ordered removed for many and various reasons, including tourist visa
violations.”226 The Court thus concluded that the statute could not be lawfully construed as
authorizing indefinite detention.227
Notably, the Court rejected the government’s contention that indefinite detention pending
removal was constitutionally permissible under Shaughnessy v. United States ex rel. Mezei,
which, many decades earlier, had upheld the indefinite detention on Ellis Island of an alien denied
admission into the United States and ordered excluded.228 The Zadvydas Court distinguished
Mezei, which involved an alien considered at the threshold of entry, because “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.”229
The Zadvydas Court determined there was no indication that Congress had intended to confer
immigration authorities with the power to indefinitely confine individuals ordered removed.230
Although INA Section 241(a)(6) states that an alien “may be detained” after the 90-day removal
period, the Court reasoned, the statute’s use of the word “may” is ambiguous and “does not
necessarily suggest unlimited discretion.”231
For these reasons, applying the doctrine of constitutional avoidance,232 the Court held that INA
Section 241(a)(6) should be construed as authorizing detention only for “a period reasonably
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).
223 Zadvydas, 533 U.S. at 690.
224 Id. at 690–91.
225 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.
226 Id.
227 Id. at 689, 697.
228 Id. at 692-93; see Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215–16 (1953).
229 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.
230 Id. at 697–98.
231 Id. at 697.
232 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).
Congressional Research Service
34
Immigration Detention: A Legal Overview
necessary to secure removal.”233 The Court thus construed the statute as having an implicit
temporal limitation of six months following a final order of removal.234 If that six-month period
elapses, the Court held, the alien generally must be released from custody if he “provides good
reason to believe that there is no significant likelihood of removal in the reasonably foreseeable
future.”235
In Clark v. Martinez, the Supreme Court considered whether the presumptive six-month time
limitation established in Zadvydas applied to aliens who had not been lawfully admitted into the
United States, and who were being detained after their 90-day removal periods had lapsed.236 The
Court concluded that the time limitation read into INA Section 241(a)(6) for deportable aliens in
Zadvydas equally applied to inadmissible aliens. But unlike in Zadvydas, the Court did not rest its
decision on matters of constitutional avoidance. Instead, the majority opinion (written by Justice
Scalia, who had dissented in Zadvydas), relied on the principle of statutory construction that a
provision should have the same meaning in different circumstances.237 “[B]ecause the statutory
text provides for no distinction between admitted and nonadmitted aliens,” the Martinez Court
reasoned, the provision should be interpreted as having the same, presumptive six-month time
limit for both categories of aliens.238
In reaching this conclusion, the Supreme Court rejected the government’s invitation to construe
the detention statute differently when applied to unadmitted aliens, which the government
contended was proper because of the limited constitutional protections available to such aliens.239
The majority stated that “[b]e that as it may, it cannot justify giving the same detention provision
a different meaning when such aliens are involved.”240
233 Zadvydas, 533 U.S. at 699.
234 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).
235 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 unles
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