Statutory Framework

Four provisions of the INA primarily shape the immigration detention framework:

INA § 236(a) generally authorizes the detention of aliens pending a decision on whether the alien is to be removed from the United States and permits those who are not subject to mandatory detention to be released on bond or their own recognizance.

INA § 236(c) generally requires the detention of aliens who are removable because of specified criminal activity or terrorism-related grounds.

INA § 235(b) generally requires the detention of applicants for admission who appear subject to removal, including aliens arriving at a port of entry and certain other aliens who have not been admitted or paroled into the United States.

INA § 241(a) generally requires an alien subject to a final order of removal to be held during the 90-day period when the alien’s removal is effectuated, and DHS may detain an alien beyond this 90-day period if the agency is unable to effectuate removal and the alien falls within certain categories.

Discretionary Detention

INA § 236(a) authorizes the arrest and detention of an alien pending a determination on whether the alien shall be removed from the United States. Detention under this statute is discretionary, and immigration authorities need not continue to detain an alien subject to removal unless the alien is subject to mandatory detention (e.g., aliens convicted of specified crimes under INA § 236(c)).

If DHS arrests and detains an alien under INA §236(a), and the alien is not subject to mandatory detention, the agency may either (1) continue to detain the alien during the pendency of removal proceedings, or (2) release the alien on bond in the amount of at least $1,500 or on the alien’s own recognizance (subject to certain conditions). In the event of an alien’s release, DHS may opt to enroll the alien in an Alternatives to Detention program, which enables the agency to monitor and supervise the alien to ensure his or her eventual appearance at a removal proceeding.

INA § 236(a) permits an immigration officer, at any time during removal proceedings, to determine whether an arrested alien should remain in custody or be released. If the alien is arrested without an administrative warrant, the custody decision generally must be made within 48 hours. DHS regulations provide that to be released the alien must show that he or she is not a flight or security risk. If the alien remains detained, he or she may request review of DHS’s custody decision at a bond hearing before an
immigration judge (IJ) within the Department of Justice’s Executive Office for Immigration Review (EOIR). The IJ may decide whether DHS may retain physical custody or release the alien, and the IJ has authority to set the bond amount. The IJ’s custody determination may be appealed to the EOIR’s Board of Immigration Appeals (BIA). Federal statute generally bars judicial review of a decision whether to detain or release an alien, but courts may consider habeas corpus claims alleging that an alien’s detention is unlawful.

INA § 236(a) permits an immigration officer, at any time during removal proceedings, to determine whether an arrested alien should remain in custody or be released. If the alien is arrested without an administrative warrant, the custody decision generally must be made within 48 hours. DHS regulations provide that to be released the alien must show that he or she is not a flight or security risk. If the alien remains detained, he or she may request review of DHS’s custody decision at a bond hearing before an
immigration judge (IJ) within the Department of Justice’s Executive Office for Immigration Review (EOIR). The IJ may decide whether DHS may retain physical custody or release the alien, and the IJ has authority to set the bond amount. The IJ’s custody determination may be appealed to the EOIR’s Board of Immigration Appeals (BIA). Federal statute generally bars judicial review of a decision whether
to detain or release an alien, but courts may consider habeas corpus claims alleging that an alien’s detention is unlawful.

Mandatory Detention

INA § 236(c) requires the detention of aliens removable on specified criminal or terrorism related grounds. These grounds include, for example, crimes involving moral turpitude, drug crimes, aggravated felonies, and membership in a terrorist organization.

INA § 236(c) states that DHS “shall take into custody any alien” who falls within one of the enumerated criminal or terrorism-related grounds “when the alien is released” from criminal custody. The Supreme Court in Nielsen v. Preap held that this mandatory detention scheme covers any alien who has committed a specified offense, even if not immediately taken into custody after release from criminal incarceration.

Except in limited circumstances, an alien detained under INA § 236(c) generally may not be released on bond or his or her own recognizance during removal proceedings. The alien may seek limited review by an IJ to determine whether he or she falls within one of the categories of aliens subject to mandatory detention.

Mandatory Detention of Applicants for Admission/Arriving Aliens

Under INA § 235(b) applicants for admission must generally be detained for removal purposes if they do not appear clearly to be admissible. The statute defines an “applicant for admission” to include both an alien seeking initial entry at a designated port of entry and an alien present in the United States who has not been admitted.

The detention requirements of INA § 235(b) have been construed to apply to applicants for admission regardless of whether they are subject to a streamlined “expedited removal” process (e.g., those apprehended when attempting to enter the United States without valid entry documents) or are subject to formal removal proceedings (e.g., aliens inadmissible because of engaging in certain criminal activities). This construction also applies to aliens who, though initially subject to expedited removal, were found to have a credible fear of persecution if returned to their country of origin, and then transferred to formal removal proceedings to pursue asylum or similar forms of relief.

Arriving aliens in expedited removal proceedings are subject to mandatory detention, pending a credible
fear determination, and if no credible fear, until removed. INA § 235(b)(1)(B)(i)(IV). Generally, arriving aliens placed in 240 proceedings, shall also be detained. INA § 235(b)(2)(A). An alien “shall be detained pending determination and removal” while inadmissibility is being considered under 8 C.F.R. § 235.3.