December 2, 2009

IV. The Power to Apprehend, Detain, and Deport

Every day non-citizens in the United States are apprehended by Immigration and Customs Enforcement and placed in a vast network of detention centers that, during the most recent year for which figures are available (2008), housed 378,582 persons.[7] The majority of these non-citizen detainees are held in about 300 state and local jails which, under contract with ICE, receive a daily fee for their bed space. ICE also detains immigrants in nine service processing centers which it operates, as well as in six privately-run contract detention facilities, 42 contracted juvenile facilities, and two family detention centers.

Non-citizens can be apprehended and detained by ICE for a variety of reasons. Many are taken into custody because the legality of their presence in the US is disputed and authorities want to hold them pending a decision on their deportation (or “removal”)[8] from the United States.[9] Authorities also detain non-citizens arriving in the United States without valid travel or identity documents,[10] including those seeking asylum from persecution, who are detained until they have had a “credible fear” interview with an asylum officer.[11] In practice, many such asylum seekers are detained even after they have had a successful credible fear interview and have applied for parole or release from detention under conditions intended to guarantee their appearance at future hearings.[12] Finally, existing laws require authorities to detain most non-citizens who are facing deportation after having served a criminal sentence, including those who are legally in the country (for example, with lawful permanent resident status).[13]

The power to issue a warrant to apprehend and detain any non-citizen pending his or her deportation officially rests with the attorney general of the United States.[14] On a day-to-day basis, that power is exercised by immigration officers. An immigration officer also may question a non-citizen as to his or her right to remain inside the United States, and may take into custody without a warrant any non-citizen believed to be in violation of any immigration law who is “likely to escape before a warrant can be obtained for his arrest.”[15] Finally, the attorney general may enter into a written agreement with local law enforcement officials to arrest and detain non-citizens.[16] In recent years, there has been a marked increase in these agreements with police and sheriff’s departments around the country: In 2007, only eight law enforcement agencies took part in agreements with ICE to enforce immigration laws; now a total of 47 agencies in 17 states participate, with 90 more waiting to sign up as of May 2008.[17]

Once a non-citizen has been detained, the immigration authorities have 48 hours to make a determination as to whether he or she should remain in custody. If the immigration authorities continue to believe that the non-citizen is present in the United States in violation of immigration laws, they must also decide whether to issue a Notice to Appear in that same 48-hour window.[18] The NTA is the document that states the agency’s factual basis for believing an individual has violated the immigration laws, and in most cases, why he or she should be removed from the United States. It is the linchpin for any non-citizen wishing to defend against the government’s claim that he or she should be deported from the United States.

While the NTA must ordinarily be given to the detainee within 48 hours of arrest, that deadline is waived “in the event of an emergency or other extraordinary circumstance in which case a determination will be made within an additional reasonable period of time.”[19] This extraordinary circumstance loophole was most infamously used by the US government in its treatment of immigrant detainees after the September 11, 2001 attacks.[20] It does not appear to be in use today. However, a similar policy remains in effect due to a memo issued in 2004 by then Undersecretary of Border and Transportation Security Asa Hutchinson, which extended the 48-hour deadline for service of an NTA to 72 hours in case of emergency, but also stated that prolonged detention without an NTA is permitted “[w]henever there is a compelling law enforcement need including, but not limited to, an immigration emergency resulting in the influx of large numbers of detained aliens that overwhelms agency resources.”[21]

Under this broad guidance, there is no legally enforceable deadline by which the NTA must be served on the detained immigrant. The lack of a deadline is illustrated by the “many detainees identified by NGOs and attorneys who are sitting in detention for days, weeks, and sometimes months at a time without having received an NTA.”[22]

There is also no deadline for ICE to file the NTA with the immigration court. This absence of a filing deadline is significant because it is only after this filing occurs that the immigration court has jurisdiction over the case. In other words, it is only after the government files the NTA that the place or “venue” for the deportation hearings is set.[23] For example, if an immigrant is taken into custody in Pennsylvania and held there for several weeks before an NTA is filed with the immigration court, and then ICE chooses to transfer him to a detention center in Texas and files an NTA there, his entire legal case has been transferred to Texas.

The fact that the government determines where a particular immigrant’s case will be heard by deciding when and where to file the NTA (for example, waiting until after a transfer has occurred) places a great deal of power in the government’s hands. The power that the government has in determining venue is significant because sweeping changes to US immigration law passed by Congress in 1996 made many more non-citizens subject to deportation, and made it much more difficult for them to defend against their deportation.[24]

The United States Congress should amend the immigration laws, or ICE should issue regulations requiring the agency to file the NTA with the immigration court nearest to the place of arrest and within 48 hours of taking a non-citizen into custody, or within 72 hours in exceptional or emergency cases. These relatively simple legislative or regulatory fixes would provide a measure of necessary control over transfers and enhance fairness in immigration proceedings.


[7] Dr. Dora Schriro, special advisor on ICE Detention and Removal, “Immigration Detention Overview and Recommendations,” Department of Homeland Security, Immigration and Customs Enforcement, October 6, 2009, (accessed November 2, 2009), p.2 (hereinafter “Schriro Detention Report”). This figure refers to the total number of admissions to detention over the course of the year. At any one time, the number of persons detained is about one-tenth this figure.

[8]Throughout this report we use the terms “deportation” and “removal” interchangeably to refer to a government’s removal of a non-citizen from its territory. We note that the terms had different meanings under earlier versions of US immigration law, and that now all such governmental actions are referred to in US law as “removals.” Nevertheless, for simplicity we use the more commonly understood term “deportation” wherever possible.

[9] Immigration and Nationality Act (INA) Section 236(a), 8 U.S.C. Section 1226(a).

[10] INA Section 235(b), 8 U.S.C. Section 1225(b).

[11] 8 C.F.R. Section 235.3.

[12] Letter from Stewart Baker, Assistant Secretary for Policy, Department of Homeland Security, to Felice Gaer, United States Commission on International Religious Freedom, November 28, 2008 (letter on file with Human Rights Watch) (noting that only 50 percent of asylum seekers who were found to have a credible fear of persecution and who applied for parole were actually granted parole and released from detention from November 6, 2007, to June 30, 2008.).

[13] INA Section 236(c), 8 U.S.C. Section 1226(c).

[14] Ibid., Section 1226(a).

[15] INA Section 287(a), 8 U.S.C. Section 1357(a)(2).

[16] Ibid., Section 1357(g).

[17] Daniel C. Vock, “States, Locals Swamp Immigration Program,”, May 13, 2008, (accessed November 4, 2009).

[18] 8 C.F.R. Section 287.3(d).

[19] Ibid., Section 287.3(c).

[20] Human Rights Watch, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees, vol. 14, no. 4(G), August 2002,

[21] Memorandum from Asa Hutchinson, undersecretary, Border and Transportation Security, to Michael J. Garcia, assistant secretary, US Immigration and Customs Enforcement, and Robert Bonner, commissioner, US Customs and Border Protection, March 30, 2004, (accessed November 4, 2009).

[22] Shoba Sivaprasad Wadhia, “Under Arrest: Immigrants’ Rights and the Rule of Law,” University of Memphis Law Review, vol. 38, Summer 2008, p. 853.

[23] “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court.” 8 C.F.R. Section 1003.14(a). “Venue shall lie at the Immigration Court where jurisdiction vests pursuant to § 1003.14.” Ibid., Section 1003.20(a).

[24] See the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-628; Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214.