THE ISSUE: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) 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 ever was served. Mandatory detention went into effect on October 9, 1998 and applies “when the alien is released” from criminal or INS custody. INS can hold those subject to mandatory detention in jail indefinitely. Some immigrants have been detained for many years after they completed their criminal sentences, and continue to be detained even after INS has determined that there is no way to remove them from the United States.

BACKGROUND: Prior to the mandatory detention provisions enacted in the 1996 law, INS could exercise its discretion and decide to release an individual, either with a bond or without one, 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. However, 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 that were not even deportable offenses at the time of conviction, including some misdemeanors committed years before IIRAIRA became law. Many long-time lawful permanent residents have been detained without the possibility for release for offenses committed years ago.

These detention rules offer no limitation on how long INS can detain a person. The INS indefinitely jails thousands of people with final orders of deportation or removal even though they already served their criminal sentences, or had none imposed. Many lawful permanent residents who have been in the U.S. 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. These are people the INS is unable to return to their countries of nationality: Vietnamese, Cubans, and persons from other countries with which the United States has no diplomatic relations or which refuse to accept the return of their nationals. Consequently, immigrants from these countries languish in INS detention for years, with no hope of release, and are commonly known as "lifers". Many of the approximately 3,500 "lifers" are lawful permanent residents who entered the United States as refugees when they were children.

In response to successful challenges in thirteen federal court cases on the practice of mandatory and indefinite detention, and widespread criticism from the media and public on the destructive effective of these laws, INS has attempted to modify the use of mandatory and indefinite detention. In July of 1999, the INS changed its interpretation of mandatory detention such that the rules will only apply to people who completed their criminal sentences after October 9, 1998 (the previous interpretation applied to anyone apprehended by INS after October 9, 1998, regardless of when their criminal sentence was completed). However, the new interpretation does not require the release of those people detained based on the previous interpretation that had been struck down by the courts. On June 30, 2000, the INS issued proposed regulations that require an annual review of the cases of people who are in indefinite detention, but the proposed regulations offer no strict timeline for decision making, offer no review or appeals process, and do not require an impartial adjudicator to review custody decisions. On November 13, 2000, the INS also issued new detention standards with the goal of improving the conditions of detention facilities and access to representation or legal rights presentations. However, the guidelines are silent on the issue of mandatory and indefinite detention. All of these efforts to modify of the use of mandatory and indefinite detention, or to improve the conditions of the jails where immigrants are detained, fail to address the real problem. The law continues to require the mandatory detention of legal residents who committed non-violent offenses, and continues to allow INS to effectively issue life sentences to legal residents who have already served their criminal sentences, or had none imposed.

In recognition of the financial and human costs associated with mandatory and indefinite detention, several measures were introduced in the 106^th Congress that would solve this crisis. Senators Edward Kennedy (D-MA) and Robert Graham (D-FL) introduced the Immigrant Fairness Restoration Act, S.3120, and Representative John Conyers (D-MI), introduced the Restoration of Fairness in Immigration Act, H.R. 4966. Both of these bills would have placed a one-year limit on INS detention, restored judicial discretion in deportation cases involving minor crimes, returned pre-IIRAIRA detention policies, and reinstated judicial review.

AILA’S POSITION: The mandatory detention provisions of the 1996 immigration law hurt American families and should be reformed. INS should not detain non-violent immigrants, including refugees, asylum seekers and permanent residents who pose no risk to society and whose crime may have occurred many years in the past. 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. AILA strongly supports reform of the mandatory and indefinite detention provisions.

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