In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). One of the major provisions of this act, which went into effect in October 1998, is known as the "mandatory detention" provision. The gist of this provision is that almost all noncitizens with criminal records who are placed into removal proceedings or are subject to deportation will be detained throughout the pendency of those proceedings or until they are deported, which can be many months. Many of the crimes were minor and/ or were committed many years ago. One of the many questions of the new law is how it is to be implemented on a practical level. The Immigration and Naturalization Service ("INS") does not have the resources or capacity to meet the congressional mandate. The issue of national implementation also has not been addressed comply with the letter of the law. The result is likely to be inconsistent implementation of the new policy all over the country with the amount of local bed space being the determining factor in decisions of release or detention rather than the merits of their cases.
The INS has nearly doubled its prison system's capacity in the two years since IIRIRA was passed. Bed space capacity at INS detention centers is terribly short of what it needs to be to successfully implement IIRIRA and the mandatory detention rules. It is reasonable to estimate that the INS would have to increase it's bed space from 3,000 to 18,000 additional beds to meet the new mandate.
Because of the overcrowding problems which face the INS due to the mandatory detention provision, local district directors will have to decide who will be detained and who will not. Some would favor the detention of aliens caught in a factory raid while others would rather see these efforts exercised at the U.S. border. Even high ranking officials of the INS have alluded to the "significantly negative impact on our border operations" that the new mandatory detention provision will have.
Most important, the INS must discover a way to provide a national policy on a provision which is not feasible in all locations of the country. As a result of the new mandate, many aliens are undeservedly being detained causing great distress to their families (many of whom are U.S. citizens) and at an enormous cost to U.S. taxpayers. Congress must address the maladies in the act and provisions of it, and the INS must work to provide national unity in how this particular policy or any subsequent policies will be implemented.
Any alien currently held in mandatory detention should contact an attorney immediately, and seek to find relief from deportation proceedings.