[Excerpt] As Congress considers reforms to the nation’s immigration system, the detention of noncitizens (aliens) in the United States will likely be an issue. Congressional interest in the policy of detaining noncitizens in the United States while determining whether noncitizens should be removed from the United States tends to be varied. For example, while some want to increase the categories of aliens who are detained and increase the amount of detention space, others want to create alternatives to detention and exempt asylum seekers from mandatory detention. In addition, immigration enforcement activities affect the need for and allocation of detention resources. For example, as the Department of Homeland Security (DHS) expands programs to locate removable aliens from jails throughout the country, DHS may need additional detention beds in areas of the United States where traditionally there has not been a need for detention space.
The Immigration and Nationality Act (INA) provides broad authority to detain aliens while awaiting a determination of whether they should be removed from the United States and mandates that certain categories of aliens are subject to mandatory detention (i.e., the aliens must be detained) by DHS. Aliens not subject to mandatory detention may be detained, paroled, or released on bond. “Enemy combatants” at the Guantanamo U.S. military base in Cuba are not under the authority of DHS, nor are noncitizens incarcerated in federal, state, and local penitentiaries for criminal acts.
Any alien can be detained while DHS determines whether the alien should be removed from the United States. The large majority of the detained aliens have committed a crime while in the United States, have served their criminal sentence, and are detained while undergoing deportation proceedings. Other detained aliens include those who arrive at a port-of-entry without proper documentation (e.g., fraudulent or invalid visas, or no documentation), but most of these aliens are quickly returned to their country of origin through a process known as expedited removal. The majority of aliens arriving without proper documentation who claim asylum are held until their “credible fear hearing,” but some asylum seekers are held until their asylum claims have been adjudicated.
There are many policy issues surrounding detention of aliens, including concerns about the number of aliens subject to mandatory detention and the justness of mandatory detention, especially as it is applied to asylum seekers arriving without proper documentation. Some have raised concerns about the length of time in detention for aliens who have been ordered removed. Additionally, issues have been raised about the amount of detention space available to house DHS detainees or the nationwide allocation of the space.