{ "id": "R45915", "type": "CRS Report", "typeId": "REPORTS", "number": "R45915", "active": true, "source": "EveryCRSReport.com", "versions": [ { "source": "EveryCRSReport.com", "id": 605074, "date": "2019-09-16", "retrieved": "2019-09-17T22:19:40.297201", "title": "Immigration Detention: A Legal Overview", "summary": "The Immigration and Nationality Act (INA) authorizes\u2014and in some cases requires\u2014the Department of Homeland Security (DHS) to detain non-U.S. nationals (aliens) arrested for immigration violations that render them removable from the United States. An alien may be subject to detention pending an administrative determination as to whether the alien should be removed, and, if subject to a final order of removal, pending efforts to secure the alien\u2019s removal from the United States. The immigration detention scheme is multifaceted, with different rules that turn on several factors, such as whether the alien is seeking admission into the United States 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.\nThe immigration detention scheme is mainly governed by four INA provisions that specify when an alien may be detained:\nINA 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; \nINA 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; \nINA 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\nINA 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.\nThese 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\u2019s detention authority is not unfettered, and due process considerations may inform the duration and conditions of aliens\u2019 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 \u201cserious constitutional concerns.\u201d 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 \u201cprolonged\u201d it may not comport with due process requirements. \nAdditionally, some lower courts have recognized constraints on DHS\u2019s 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\u2019s continued detention is justified. In addition, a settlement agreement known as the \u201cFlores Settlement,\u201d which is enforced by a federal district court, currently limits DHS\u2019s 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\u2019s ability to take custody of aliens detained by state or local law enforcement officials upon issuance of \u201cimmigration detainers.\u201d \nIn 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\u2019s detention authority.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "https://www.crs.gov/Reports/R45915", "sha1": "f334ab9da92f9f2865a68a70057d3d18f2ae4398", "filename": "files/20190916_R45915_f334ab9da92f9f2865a68a70057d3d18f2ae4398.html", "images": { "/products/Getimages/?directory=R/html/R45915_files&id=/3.png": "files/20190916_R45915_images_cc20b4f5db718e9969c5a89686da7f46b6008af9.png", "/products/Getimages/?directory=R/html/R45915_files&id=/1.png": "files/20190916_R45915_images_9817b892693d60a560a66299f848a0619d0e33e6.png", "/products/Getimages/?directory=R/html/R45915_files&id=/2.png": "files/20190916_R45915_images_99afd56a0f0a7aee4fdd60c44c2182ade09ef5e6.png", "/products/Getimages/?directory=R/html/R45915_files&id=/0.png": "files/20190916_R45915_images_e124f30f6f36764cd58783376738882c8c31e31f.png" } }, { "format": "PDF", "encoding": null, "url": "https://www.crs.gov/Reports/pdf/R45915", "sha1": "5690fe9b6f95bc3e28626582de67bdba57677fa8", "filename": "files/20190916_R45915_5690fe9b6f95bc3e28626582de67bdba57677fa8.pdf", "images": {} } ], "topics": [ { "source": "IBCList", "id": 4886, "name": "Unauthorized Migrants & Immigration Enforcement & Removal" } ] } ], "topics": [ "American Law", "Constitutional Questions" ] }