Detention of Noncitizens in the United States (CRS Report for Congress)
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| Release Date |
Nov. 4, 2002 |
| Report Number |
RL31606 |
| Report Type |
Report |
| Authors |
Alison Siskin, Domestic Social Policy Division; and Margaret Mikyung Lee, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
The events following the attacks of September 11 have increased interest in the authority of the
Attorney General to detain noncitizens (aliens) in the United States. The Attorney General has broad
authority to detain aliens (noncitizens) while awaiting a determination of whether the noncitizen
should be removed from the United States. The law also mandates that certain categories of aliens
are subject to mandatory detention, i.e., the aliens must be detained. Aliens subject to mandatory
detention include those arriving without documentation or with fraudulent documentation, those who
are inadmissable or deportable on criminal grounds, those who are inadmissable or deportable on
national security grounds, those certified as a terrorist suspect, and those who have final orders of
deportation. Aliens not subject to mandatory detention may be detained, paroled, or released on
bond. The priorities for detention of these aliens are specified in statute and regulations.
In FY2001, the Immigration and Naturalization Service (INS) detained 20,429 noncitizens. On
average the noncitizens spent 42.5 days in detention with a median time of 15 days. During the same
period, 6,808 juveniles were detained and of these 4,675 were unaccompanied. The majority of the
unaccompanied juveniles were male with an average age of 15. However, 50% of the
unaccompanied juveniles were 16 years of age or older. The majority of unaccompanied juveniles
were released in under 30 days. During FY2001, INS budgeted $1,477,650 for detention purposes.
There are many policy issues surrounding detention of aliens, including several recent court
cases seeking to address issues of detention. The Illegal Immigrant Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) increased the number of aliens subject to mandatory detention,
increasing the number of aliens in detention from 9,011 in 1996 to 19,409 in 2002, and raised
concerns about the justness of mandatory detention, especially as it is applied to asylum seekers
arriving without proper documentation. Prior to IIRIRA, some aliens used fraudulent asylum claims
as a way to illegally enter the country, thus, the law was changed such that asylum seekers are now
subject to mandatory detention prior to a credible fear hearing. Additionally, the increase in the
number of mandatory detainees has raised concerns about the amount of detention space available
to house INS detainees. Some contend that decisions on which aliens to release from detention and
when to release the aliens from detention may be based on the amount of detention space, not on the
merits of an individual case. Concerns have also been raised about the treatment of certain groups
of people in INS custody, including juveniles, administrative detainees who are held with criminals,
and those detained as part of the investigation into September 11.
