MANDATORY DETENTION:

Immigrants Detained and American Families Pay the Price

THE ISSUE: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act by mandating that the Immigration and Naturalization Service (INS) detain nearly all immigrants who have committed a crime.  The list of crimes which subject an immigrant to mandatory detention is extensive, and includes nonviolent crimes, crimes which occurred in the distant past, and crimes for which no sentence was served.  Mandatory detention went into effect on October 9, 1998.  Since that time, many lawful permanent residents who have been in the United States for many years and who have U.S. citizen family members have been locked away indefinitely in INS facilities and local jails with no possibility for release.

BACKGROUND: Prior to the mandatory detention provisions enacted in the '96 law, INS could exercise its discretion and decide to release an individual if it was determined that the detainee posed no risk to society and was likely to appear for proceedings.  An Immigration Judge could hear evidence about a detainee’s U.S family members, length of residency in the U.S., and rehabilitation and decide whether or not he or she deserved to be released.  Both INS and an Immigration Judge had the authority to release an individual who posed no danger to the safety of others and was likely to appear for future hearings.  By mandating detention without the possibility of release, IIRIRA took away this discretion.

The mandatory detention provisions also operate retroactively, according to the interpretation of some Department of Justice representatives, and require the detention of individuals who committed non-violent offenses, including some misdemeanors, even years before IIRIRA became law.  Many long-time lawful permanent residents have been detained without the possibility for release for offenses committed years ago.

Fundamental change in the mandatory detention rules requires legislative action. Mandatory detention of lawful permanent residents, however, has been found unconstitutional by a majority of federal courts which have considered the issue.

CURRENT STATUS: INS issued policy guidance on October 7, 1998 indicating its detention priorities.  The INS memo began by stating that compliance with the mandatory detention provisions is "virtually impossible," and indicated that individuals released prior to the new detention rules will not be targeted for re-detention.  However, when the INS comes into contact with an immigrant subject to mandatory detention, for example during a citizenship interview or upon return to the United States from a trip abroad, the immigrant is likely to be taken into custody without the possibility for release.