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 that subject an immigrant to mandatory detention is extensive, and includes nonviolent crimes, crimes that 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, IIRAIRA 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 IIRAIRA became law.  Many long-time lawful permanent residents have been detained without the possibility for release for offenses committed years ago. 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.

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 that have considered the issue.

CURRENT STATUS: In July of 1999, INS changed its interpretation of mandatory detention after the agency’s initial interpretation had been challenged successfully in thirteen federal court cases. INS had interpreted the IIRAIRA phrase "released from custody" prior to October 9, 1998 as released by INS custody.  Under the new interpretation, "released from custody" is to be interpreted as the completion of their criminal sentences.  INS is to conduct a case-by-case review of those in detention who completed their criminal sentences prior to October 9, 1998.  However, the new interpretation does not require release: It only requires INS review and administrative review by the IJ and the BIA.  Several pieces of IIRAIRA reform legislation yet to be introduced include provisions that would reform mandatory detention.

ADVOCATE'S POSITION: The mandatory detention provisions of the 1996 immigration law hurt American families and should be further reformed.  INS should not detain non-violent immigrants, including refugees, asylum seekers and permanent residents, who pose no risk to society.  To do so wastes taxpayer money and diverts much needed resources from the legitimate and necessary task of detaining violent aliens with criminal histories.  INS, itself, has taken this position.  INS must have the discretion to release immigrants who pose no risk to society and are likely to show up for their hearings.    Advocates strongly support reform of the mandatory provisions.