Mandatory Detention

The dramatic expansion of immigration detention in the United States is largely due to mandatory detention laws

Image credit: Alonso Yáñez/La Opinion

As part of the growth of mass incarceration in the United States, Congress has expanded the mandatory detention of immigrants to unprecedented levels. Roughly 70 percent of immigrants in detention are mandatorily detained, meaning their incarceration is automatic and required without any kind of individualized assessment.

Mandatory detention leads to the long-term jailing of people with pending immigration cases. Because of the increasing backlog in immigration court and the already lengthy legal processes, people spend years in both harmful and costly detention centers across the U.S.

The practice of mandatory detention has existed since 1988, but it was not until the passage of two laws in 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration and Immigrant Responsibility Act (IIRIRA), that mandatory detention exploded. The 1996 laws categorized a huge range of crimes as “aggravated felonies” in the immigration context, many of which are considered neither aggravated nor felonies in the criminal context. Aggravated felonies automatically trigger mandatory detention and include crimes such as theft and drug possession, in addition to more serious offenses. Unfortunately, the term has remained vague, continuously allowing courts to reinterpret and broaden its meaning to automatically lock up more and more immigrants.

As the result of expedited removal (also created in 1996), asylum-seekers apprehended by immigration authorities are also mandatorily detained until they pass their first screening interview. Unfortunately, the government has systematically refused to release asylum-seekers even after their detention is no longer required by law.

In an effort to push back on the increasing use of mandatory detention to justify large numbers of people in immigration jail, advocates have pursued litigation to challenge prolonged detention without bond and to protect people who have very old convictions from being subject to mandatory detention.

Mandatory detention arbitrarily funnels immigrants into a sprawling, unaccountable and unjust system. While DWN calls for a complete end to immigration detention, we also view the automatic detention of people without any kind of individualized assessment as particularly egregious and call for the elimination of mandatory detention immediately.

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