Detention of Noncitizens in the United States
Report for Congress
Detention of Noncitizens in the United States
Updated November 4, 2002
Alison M. Siskin
Analyst in Social Legislation
Domestic Social Policy Division
Margaret Mikyung Lee
American Law Division
Congressional Research Service ˜ The Library of Congress
Detention of Noncitizens in the United States
The events following the attacks of September 11 have increased interest in the
authority of the Attorney General to detain noncitizens (aliens) in the United States.
The Attorney General has broad authority to detain aliens (noncitizens) while
awaiting a determination of whether the noncitizen should be removed from the
United States. The law also mandates that certain categories of aliens are subject to
mandatory detention, i.e., the aliens must be detained. Aliens subject to mandatory
detention include those arriving without documentation or with fraudulent
documentation, those who are inadmissable or deportable on criminal grounds, those
who are inadmissable or deportable on national security grounds, those certified as
a terrorist suspect, and those who have final orders of deportation. Aliens not subject
to mandatory detention may be detained, paroled, or released on bond. The priorities
for detention of these aliens are specified in statute and regulations.
In FY2001, the Immigration and Naturalization Service (INS) detained 20,429
noncitizens. On average the noncitizens spent 42.5 days in detention with a median
time of 15 days. During the same period, 6,808 juveniles were detained and of these
4,675 were unaccompanied. The majority of the unaccompanied juveniles were male
with an average age of 15. However, 50% of the unaccompanied juveniles were 16
years of age or older. The majority of unaccompanied juveniles were released in
under 30 days. During FY2001, INS budgeted $1,477,650 for detention purposes.
There are many policy issues surrounding detention of aliens, including several
recent court cases seeking to address issues of detention. The Illegal Immigrant
Reform and Immigrant Responsibility Act of 1996 (IIRIRA) increased the number
of aliens subject to mandatory detention, increasing the number of aliens in detention
from 9,011 in 1996 to 19,409 in 2002, and raised concerns about the justness of
mandatory detention, especially as it is applied to asylum seekers arriving without
proper documentation. Prior to IIRIRA, some aliens used fraudulent asylum claims
as a way to illegally enter the country, thus, the law was changed such that asylum
seekers are now subject to mandatory detention prior to a credible fear hearing.
Additionally, the increase in the number of mandatory detainees has raised concerns
about the amount of detention space available to house INS detainees. Some contend
that decisions on which aliens to release from detention and when to release the
aliens from detention may be based on the amount of detention space, not on the
merits of an individual case. Concerns have also been raised about the treatment of
certain groups of people in INS custody, including juveniles, administrative
detainees who are held with criminals, and those detained as part of the investigation
into September 11.
Overview of INS Detention..........................................3
Statutory Authority for Detention.................................3
Expedited Removal and Detention................................7
Rights of the Detained..........................................8
Aliens in Expedited Removal...............................10
Constitutionality of Mandatory Detention......................11
Release on Parole and Bond.....................................15
Legal Challenges to the Conditions of Juveniles in Custody........19
Issues of Juveniles in Custody...............................21
September 11 Detainees........................................25
List of Figures
Figure 1. Average Daily Population in Detention: FY1994-FY2002.........2
Figure 2. Type of Facility Housing INS Detainees as of January 7, 2002.....14
Figure 3. Number of Juveniles in INS Custody: FY1996-FY2001..........16
Figure 4. Facility Security for Juveniles: FY2001.......................19
List of Tables
Table 1. Number of Detainees by Country of Citizenship, Averages for
Week Ending December 31, 2001 for Ten Countries with Largest
Numbers of Detainees..........................................6
Table 2. Age on Last Date in Custody and Gender of Unaccompanied
Minors in Custody, FY2001.....................................17
Table 3. Time in Custody for Unaccompanied Juvenile Custody Events,
Detention of Noncitizens
in the United States
The events following the attacks of September 11 have increased interest in the
authority of the Attorney General through the Immigration and Naturalization Service
(INS) to detain noncitizens (aliens)1 in the United States. The Attorney General has
broad authority to detain aliens (noncitizens) while awaiting a determination of
whether the noncitizen should be removed from the United States. The law also
mandates that certain categories of aliens are subject to mandatory detention, i.e., the
aliens must be detained by INS. Aliens subject to mandatory detention include those
arriving without documentation or with fraudulent documentation, those who are
removable on criminal grounds, those who are removable on national security
grounds, those certified as a terrorist suspect, and those who have final orders of
deportation. Aliens not subject to mandatory detention, may be detained, paroled,
or released on bond. The priorities for detention of these aliens are specified in
statute. Al-Quaeda prisoners at the Guantanamo U.S. military base in Cuba are not
under the authority of INS.
1 An alien is “any person not a citizen or national of the United States” and is synonymous
Figure 1. Average Daily Population in Detention: FY1994-FY2002
1994 1995 1996 1997 1998 1999 2000 2001 2002
Source: CRS presentation of INS data.
Note: FY2002 is the average daily population in detention through April 7, 2002
As Figure 1 shows, between FY1994 and FY2002 the average size of the INS
daily detention population increased steadily. The size of the daily population
increased by 115%, from 9,011 to 19,409, between FY1996, when IIRIRA was
enacted, and FY2002. The largest increase occurred between FY1997 and FY1998,
the year that all the provisions of the Illegal Immigrant Reform and Immigrant
Responsibility Act of 1996 (IIRIRA)2 became enforceable.
Both the House and Senate legislation to create a Homeland Security
Department would move authority over detention to the new department as part of
the enforcement jurisdiction in that department. Since immigration-related detention
is civil and not criminal in nature, this transfer of authority would not appear to have
implications with regard to the criminal law enforcement authority of the Attorney
General, assuming that administrative authority over immigration detention is
properly transferred to the Secretary of Homeland Security.3
2 Subtitle C of the Omnibus Consolidated Appropriations Act, 1997, P.L. 104-208, signed
into law on September 30, 1996.
3 S. 2452, the Senate Homeland Security bill, as marked up by the Senate Governmental
Affairs Committee on July 24-25, 2002, provides for a transfer of authority over
immigration matters, including detention, from both the Attorney General and the INS
Commissioner to the Secretary of Homeland Security and the Under Secretary of Homeland
Security for Immigration Affairs, respectively (§1111). However, H.R. 5005, the House
Overview of INS Detention
Statutory Authority for Detention
The Immigration and Nationality Act of 1952 (INA) gives the Attorney General
the authority to issue a warrant to arrest and detain any alien in the United States
while awaiting a determination of whether the alien should be removed from the
United States.4 IIRIRA amended the INA, specifying levels of detention priority and
classes of aliens subjected to mandatory detention. Mandatory detention is required
for certain criminal and terrorist aliens who are removable, pending a final decision
on whether the alien is to be removed. No bail is available and only a hearing can
determine whether the alien qualifies as a criminal or terrorist alien. For aliens not
subjected to mandatory detention, the Attorney General determines which aliens can
be paroled,5 released on bond,6 or continue to be detained. The Attorney General’s
decision is not subject to review. The authority to detain aliens has been delegated
to the Commissioner of INS.
In October 1998, INS issued a memorandum establishing detention guidelines
consistent with the changes made by IIRIRA.7 According to the guidelines, INS
assigns detainees to one of four detention categories: (1) required; (2) high priority;
(3) medium priority; and (4) lower priority.8 Aliens in required detention must be
detained9 while aliens in the other categories may be detained depending on detention
Homeland Security bill, as passed by the House of Representatives, expressly transfers the
functions of the INS Commissioner with regard to detention to the Under Secretary for
Border and Transportation Security, but does not expressly transfer the functions of the
Attorney General (§411). It does provide that the Secretary of Homeland Security shall be
responsible for immigration enforcement functions “vested by statute in, or performed by”
the INS Commissioner, thus appearing to cover functions that by current statute are referred
to the Attorney General, but are actually delegated to and performed by the Commissioner
4 INA §236(a).
5 “Parole” is a term in immigration law which means that the alien has been granted
temporary permission to enter and be present in the United States. Parole does not
constitute formal admission to the United States and parolees are required to leave when the
parole expires, or if eligible, to be admitted in a lawful status.
6 The minimum bond amount is $1,500.
7 Memorandum from Michael Pearson, INS Executive Associate Commissioner, Office of
Field Operations, to Regional Directors, Detention Guidelines Effective October 9, 1998.
8 High priority are aliens removable on security related or criminal grounds who are not
subject to required detention, and aliens who are a danger to the community or a flight risk.
Medium priority detainees are inadmissible, non-criminal arriving aliens not in expedited
removal and not subject to mandatory detention. Low priority detainees are other removable
aliens not subject to required detention, and aliens who have committed fraud before the
9 There are some very limited exceptions to mandatory detention. An alien subject to
space and the facts of the case. Higher priority aliens should be detained before
aliens of lower priority.10
Additionally, the U.S.A. Patriot Act11 amended the INA, to create a new section
(236A) which requires the detention of an alien whom the Attorney General certifies
as someone who the Attorney General has “reasonable grounds” to believe is
involved in terrorist activities or in any other activity that endangers national security.
The Attorney General must initiate removal proceedings or bring criminal charges
within 7 days of arresting the alien or release the alien. An alien who is detained
solely as a certified terrorist, who has not been removed, and who is unlikely to be
removed in the foreseeable future may be detained for periods of up to 6 months only
if his release would pose a danger to national security or public safety. The Attorney
General must review the terrorist certification every 6 months.12
The Attorney General also has the authority to arrest and detain aliens without
a warrant if he has “reason to believe that the alien ... is in the United States in
violation of any [immigration] law and is likely to escape before a warrant can be
obtained.”13 If the INS arrests an alien without a warrant, it has 48 hours to decide
whether to detain or release the alien. Aliens paroled or released on bond may be
rearrested at any time. On September 20, 2001, the Department of Justice (DOJ)
issued an interim regulation to provide INS with more flexibility in detaining aliens
prior to determining whether to charge or release the alien. The interim regulation
extended the period that the INS may detain an alien, pending the determination of
whether to arrest, from 24 hours to 48 hours or — in the event of emergency or
extraordinary circumstances — within an “additional reasonable period of time.”
The regulation took effect on September 17, 2001.14
Additionally, after a removal order has been issued against an alien, the law
provides that the Attorney General shall remove an alien subject to a final removal
mandatory detention may only be released if release is necessary to protect an alien who is
a government witness in a major criminal investigation, or a close family member or
associate of that alien, and the alien does not pose a danger to the public or a flight risk.
10 Pearson, Michael A. INS Detention Guidelines, October 7, 1998. Reprinted in Bender’s
Immigration Bulletin, v. 3, no. 21, November 1, 1998. p. 1111.
11 P.L. 107-56 signed into law on October 26, 2001.
12 Habeas corpus proceedings are the avenue for judicial review of certification and
13 INA §287(a)(2).
14 Federal Register, September 20, 2001 v. 66, no. 184, p. 48334-48335; 8 C.F.R. Part 287.
Of the people taken into INS custody during the investigation of the September 11 attacks,
in 17% of the cases INS took more than 7 days to file charges. In 2% of the cases, INS filed
charges after more than 30 days. Edwards, Jim. Data Show Shoddy Due Process for Post-
Sept. 11 Immigration Detainees. New Jersey Law Journal, February 6, 2002.
order within 90 days, except as otherwise provided in the statute.15 Certain aliens
subject to a removal order “may be detained beyond the removal period and, if
released, shall be subject to [certain] terms of supervision ....”16 This provision was
interpreted by the Attorney General as permitting indefinite detention where removal
was not reasonably foreseeable, but the U.S. Supreme Court in Zadvydas v. Davis,
discussed below, interpreted it as only permitting detention for up to six months
where removal was not reasonably foreseeable.
Table 1 shows that overall, for the week ending December 31, 2001:
!10 countries accounted for 64.2% of the total detention population.
!9 of the 10 countries with the largest number of individuals in
detention were from the Americas.
!Mexican nationals comprised 23.6% of the total detention
population, the largest percentage of one country, and more than
double the amount of people from any other country.
Although the majority of people in detention were criminal detainees, the
percent of criminal detainees in detention differed significantly by country of origin.
The majority of detainees from China, Guatemala, and Honduras were not criminal
!Of the10 countries with the largest number of detainees, China had
the highest percent of non-criminals in detention (71.3%), followed
by Guatemala (63.7%), and Honduras (62.1%).
!Some have raised concerns of unequal treatment of Haitians. Of theth
10 countries with the largest number of detainees, Haiti had the 5
highest percent of non-criminals in detention (39.7%).
!Jamaica and Cuba had the largest percentage of criminal detainees
of the 10 countries with the largest number of detainees (93.4% and
15 INA §241(a)(1)(A).
16 INA §241(a)(6).
Table 1. Number of Detainees by Country of Citizenship, Averages for Week Ending
December 31, 2001 for Ten Countries with Largest Numbers of Detainees
Possible% of Total
Country ofCriminalcriminalNon-detention% Non-%
ci t i ze nshi p offenders offenders criminal Total popul at i o n criminal Criminal
Mexico 2,467 727 1,297 4,491 23.6% 28.9% 71.1%
Cuba 1,517 75 140 1,732 9.1% 8.1% 91.9%
iki/CRS-RL31606Guatemala 233 98 580 911 4.8% 63.7% 36.3%
g/wJ a ma ica 699 43 52 793 4.2% 6.6% 93.4%
leakHonduras 212 50 430 692 3.6% 62.1% 37.9%
://wikiHaiti 379 23 265 668 3.5% 39.7% 60.3%
Domi nican 477 40 86 603 3.2% 14.3% 85.7%
Colombia 240 26 128 394 2.1% 32.5% 67.5%
Total top 106,8211,2514,12912,20464.2%33.8%66.2%
Source: CRS presentation of INS data.
Expedited Removal and Detention
Aliens who arrive in the United States without valid documentation or with false
documentation are subject to a process known as “expedited removal,” under which
the INS orders the removal of the alien from the United States, and the removal
decision is not subject to any further hearings, reviews, or appeals.17 Most aliens
subject to this process face continuous detention. Aliens subject to expedited
removal must be detained until they are removed and may only be released due to
medical emergency or if necessary for law enforcement purposes. If the arriving
alien expresses a fear of persecution or an intent to apply for asylum, the alien is
placed in detention until a “credible fear” interview can be held.18 If the alien is
found to have a credible fear, he may be paroled into the United States. If the
credible fear is unsubstantiated, the alien is detained until the alien is removed from
the United States.19 Under INS policy, unaccompanied minors are not subjected to
expedited removal and must be detained.20 From FY1997 though FY1999, 91% of
aliens subject to expedited removal were Mexican nationals.21
As discussed above, the law requires the Attorney General to detain:
17 INA §235(b)(1)(A)(i).
18 Prior to IIRIRA, aliens who applied for asylum were often paroled into the United States
19 Under the INA, expedited removal can also be applied to aliens who enter the United
States without inspection and cannot establish that they have been physically present in the
United States for more than 2 years, but it has yet to be applied to those who entered without
inspection. INA §235(b)(1)(A)(iii).
20 INS memorandum from Paul W. Virture, Unaccompanied Minors Subject to Expedited
Removal (August, 21, 1997). Reproduced in 74 Interpreted Releases 1367 (September 8,
21 Musalo, Karen et al. The Expedited Removal Study Releases Its Third Report, 77
Interpreted Releases 1189, 1191 (August 21, 2000).
22 Criminal aliens include those who are inadmissable on criminal-related grounds as well
as those who are deportable due to the commission of certain criminal offences while in the
United States. An alien is inadmissable for: (1) crimes of moral turpitude; (2) controlled
substance violations; (3) multiple criminal convictions with aggregate sentences of 5 years
or more; (4) drug trafficking; (5) prostitution and commercialized vice; and (6) aliens who
have received immunity from prosecution for serious criminal offenses (INA §212(a)). An
alien is deportable for the following offenses: (1) crimes of moral turpitude; (2) aggravated
felonies; (3) high speed flight; (4) controlled substance violations; (5) certain firearm
offenses; and (6) crimes of domestic violence, stalking, and child abuse (INA §237(a)(2)).
Any alien who is found in the United States who is inadmissable is deportable. Only the
following groups of criminal aliens who are inadmissable or deportable are not subject to
mandatory detention: (1) aliens convicted of a single crime of moral turpitude who were
!national security risks;23
!asylum seekers, without proper documentation, until they can
demonstrate a “credible fear of persecution”;
!arriving aliens24 subject to expedited removal;
!arriving aliens who appear inadmissable for other than document
related reasons; and
!persons under final orders of removal who have committed
aggravated felonies, are terrorist aliens, or have been illegally
present in the country.25
The USA PATRIOT Act added a new section (§236A) to the INA which
provides for the mandatory pre-removal-order detention of an alien who is certified
by the Attorney General as a terrorist suspect. The Attorney General has the
discretion to detain any alien who is in removal proceedings, and must detain all
aliens who are charged as terrorists, and almost all aliens charged as criminals upon
their release from criminal incarceration whether they are released on probation or
Rights of the Detained
The courts have ruled that detained aliens not under expedited removal27 have
the following rights:
!the right to apply for asylum;
!the right to communicate with consular or diplomatic officers of
their home country;28
sentenced to less than 1 year; (2) aliens convicted of high speed flight; and (3) aliens
convicted of crimes of domestic violence, stalking, and child abuse or neglect.
23 INS must detain any alien who is inadmissable or deportable for terrorist activity (INA
§212(a)(3)(B) and §237(a)(4)(B)).
24 The regulations define an arriving alien as an applicant for “admission to or transit
through the United States.” 8 C.F.R. §1.1(q).
25 Prior to IIRIRA, only certain aliens convicted of aggregated felonies were subject to
26 INA §236(c)(1).
27 As discussed above, those under expedited removal have more limited rights than
detainees not subject to expedited removal.
28 In accordance with U.S. constitutional considerations, customary international law, and
the Vienna Convention on Consular Relations (April 24, 1963, art. 36, T.I.A.S. 6820, 21
U.S.T. 77, to which the United States is a party), the regulations require notice to detained
aliens of their right to communicate with consular and diplomatic officers of their home
country. Additionally, certain countries have treaties with the United States that require
notification of the diplomatic officers of the country when one of their nationals is detained
in removal proceedings, regardless of whether the alien requests such notification and even
if the alien requests that no communication be made on his behalf. (8 C.F.R. §236.1(e))
!the right to be represented by counsel;29
!the right to challenge transfers to other detention facilities that might
interfere with the right to counsel;
!the right to medically adequate treatment;
!the right to access free legal service lists and telephones; and
!the right to self-help and other legal reference material.
Under the law, aliens also have the right to legally challenge their detention.30
Custody and bond determinations can be reviewed by an immigration judge at any
time before the removal order becomes final, except in certain cases.31 Additionally,
the alien may appeal the immigration judges’ decision to the Board of Immigration
Appeals (BIA). Nonetheless, the courts have afforded the Attorney General much
discretion in decisions related to where aliens are detained, the administration of
detention facilities, and the treatment of aliens.32
There are many policy issues surrounding detention of aliens, including several
recent court cases seeking to address issues of detention. The Illegal Immigrant
Reform and Responsibility Act of 1996 (IIRIRA) increased the number of aliens
subject to mandatory detention, increasing the number of aliens in detention from
9,011 in 1996 to 19,409 in 2002, and raised concerns about the justness of mandatory
detention, especially as it is applied to asylum seekers arriving without proper
documentation. Prior to IIRIRA, some aliens used fraudulent asylum claims as a way
to illegally enter the country, thus, the law was changed such that asylum seekers are
now subject to mandatory detention. Additionally, the increase in the number of
mandatory detainees has raised concerns about the amount of detention space
available to house INS detainees. Some contend that decisions on which aliens to
release from detention and when to release the aliens from detention may be based
on the amount of detention space, not on the merits of an individual case. Concerns
have also been raised about the treatment of certain groups of people in INS custody,
including juveniles, administrative detainees who are held with criminals, and those
detained as part of the investigation into September 11.
29 Detained aliens have the right to obtain counsel, but since immigration procedures are
considered civil not criminal actions, the Government is not obligated to provide counsel.
30 Gordon, Charles, et al. Immigration Law and Procedure §108.01.
31 Immigration judges may not redetermine custody for: (1) aliens in exclusion proceedings;
(2) arriving aliens; (3) aliens deportable as security threats; (4) criminal aliens; and (5)
aliens in pre-IIRIRA deportation proceedings with aggravated felonies.
32 Gordon, Charles, et al. Immigration Law and Procedure §108.04.
The changes in IIRIRA which have led to an increase in the categories of people
subject to mandatory detention have raised both policy and legal issues including the
justness of detaining asylum seekers who try to enter the country without proper
documentation, and the constitutionality of mandatory detention.
Aliens in Expedited Removal. As discussed earlier, the IIRIRA of 1996
mandated that aliens who arrive without proper documentation and claim asylum be
detained prior to their “credible fear” hearing. Prior to IIRIRA, most aliens arriving
without proper documentation who applied for asylum were released on their own
recognizance into the United States (and given work authorization), a practice which
enabled inadmissable aliens falsely claiming persecution to enter into the country.
Most of the fraudulent claims were made by people attempting to come here for
economic or family reasons, illegally rather than through legal immigration33
channels. False asylum claims utilize limited resources, causing those with
legitimate claims to have to wait longer to have their cases processed. Thus, many
argued that the only way to deter fraudulent asylum claims was to detain asylum
seekers rather than releasing them on their own recognizance. Indeed the practice of
detaining asylum seekers has reduced the number of fraudulent asylum claims.
However, others contend that the policy of detaining all asylum seekers is too
harsh. They argue that there is a need to inhibit fraudulent asylum claims, but
mandatory detention of asylum seekers causes more problems than it solves. From
April 1, 1997 through September 30, 2001 there were 34,736 aliens in expedited 34
removal who made a claim of credible fear. Of these, 33,551 have been detained.
The position of the United Nations High Commission on Refugees is that detention35
of asylum seekers is “inherently undesirable.” Detention may be psychologically
damaging to an already fragile population such as those who are escaping from
imprisonment and torture in their countries. Often the asylum seeker does not
understand why they are being detained. Additionally, asylum seekers are often
detained with criminal aliens.
Haitians in Detention. As discussed above, at the discretion of the Attorney
General, many asylum seekers are paroled from detention after they demonstrate a
credible fear of persecution. On December 3, 2001, a boat carrying 187 Haitians was
found off the coast of Miami and most of the Haitians were not paroled, raising
concerns that Haitian asylum seekers are being treated differently than asylum
seekers from other countries. In March 2002, a group of Haitians, represented by the
Florida Immigrant Advocacy Center, filed a class-action lawsuit in federal district
33 CRS Issue Brief IB93095, Immigration: Illegal Entry and Asylum Issues, coordinated by
Ruth Ellen Wasem. This report is archived and available from the author.
34 Phone call with Maureen Stanton, INS Congressional Affairs, August 6, 2002.
35 Office of the of the United Nations High Commissioner for Refugees. UNHRC Revised
Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum
Seekers, February 1999. p. 1.
court in Florida challenging the policy and seeking release from detention.36 In May
The case is pending on appeal from the dismissal.38 The INS has moved female
detainees from a maximum-security county jail to a less restrictive work-release
facility,39 and reportedly was weighing an offer from Barry University President
Jeanne O’Laughlin to find community sponsors for the detainees.40
Constitutionality of Mandatory Detention. Questions have been raised
about the constitutionality of the mandatory detention provisions in the INA. As a
result, there have been several court cases challenging the constitutionality of these
provisions. Recent federal appellate court rulings in the Third, Fourth, Ninth, and
Tenth Circuits generally found that the mandatory detention of criminal aliens
pending removal proceedings was unconstitutional as applied to lawful permanent
resident aliens; they disagreed with an earlier decision in the Seventh Circuit (Parra
v. Perryman) which upheld mandatory detention. The U.S. Supreme Court has
granted certiorari to hear one of these cases. There was also a significant analytical
difference among the circuits that did not uphold mandatory detention of lawful
!In Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999), decided before
the Zadvydas case discussed below with regard to indefinite
detention, the U.S. Court of Appeals for the Seventh Circuit upheld41
mandatory detention as an exercise of Congress’ broad, plenary
power over immigration matters and found that aliens have no
liberty interest once removal proceedings have begun. The
Zadvydas case found that congressional plenary power was still
subject to the due process rights afforded to all persons, including
!In Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001), the U.S. Court of
Appeals for the Third Circuit held that mandatory detention
constituted a violation of the due process rights of a permanent
resident alien because there was no individualized hearing to
determine whether he posed a danger to the public and was a flight
risk. The court found that Patel had a liberty interest triggering a
strict scrutiny analysis of his due process rights, which is a higher
standard for government action to satisfy compared to judicial
36 Moise v. Bulger, No. 02-CV-20822 (S.D. Fla. filed Mar. 15, 2002). After a couple of the
named plaintiffs were removed, it appears that the name may have changed to Jeanty v.
Bulger; Jody A. Benjamin, INS Says New Policy Prevents Exodus; Advocates For Haitians
Sue, Seek Freedom. Sun-Sentinel, March 20, 2002. p. 1B.
37 Judge Rejects Lawsuit Filed For Haitians, N.Y. Times, May 19, 2002. p. A27, col. 3.
38 Figueras, Tere. U.S. Move to Deport Haitians Protested; 25 Held by INS Sent Back to
Homeland. The Miami Herald, July 30, 2002. p. B1.
39 Santana, Sofia. Haitian Detainees Removed From Jail. Miami Herald, August 27, 2002.
40 Benjamin, Jody A. INS Chief, Politicians Visit Jailed Haitians. Sun-Sentinel, July 16,
41 Under §236(c) of the INA.
deference to congressional plenary power. Strict scrutiny analysis
means that the policy of mandatory detention of criminal aliens had
to be narrowly tailored to serve the governmental interest in
removing criminal aliens and preventing dangerous criminal aliens
from endangering the community and not appearing at removal
hearings. Mandatory detention of criminal aliens raises an
irrebuttable presumption of dangerousness and flight risk resulting
in the detention of all removable criminal aliens. The court held that
mandatory detention violates due process because the federal
government did not show that all removable criminal aliens are
dangerous and flight risks, e.g., Patel was a non-violent felon and
not likely to flee because he had strong ties to the community and a
chance for cancellation of removal.
!In Hoang v. Comfort, 282 F. 3d 1247 (10th Cir. 2002), the Tenth
Circuit found that mandatory detention was not justified for lawful
permanent resident aliens without an individualized bail
determination. Congressional plenary power over immigration
matters is still subject to due process constitutional limitations. Like
the Third Circuit in Patel v. Zemski, the Tenth Circuit adopted a
strict scrutiny analysis of the statute. Section 236(c) raises an
irrebuttable presumption that all aliens subject to mandatory
detention under that section are dangerous and pose flight risks,
which is not justified by the range of aliens to which it applies. It
also noted that, although §236(e) prohibits review of the Attorney
General’s judgment, courts retain habeas jurisdiction over
constitutional challenges and that exhaustion of remedies is not
required before filing a petition for habeas review because the Board
of Immigration Appeals is not empowered to grant relief. On May
3, 2002, a petition for certiorari was filed in the U.S. Supreme Court
under the name Comfort v. Hoang, No. 01-1616.
!In Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002), the Ninth Circuit also
held that mandatory detention of criminal aliens (§236(c)) violated
the due process rights of lawful permanent resident aliens, because
it provides for no individualized determination of dangerousness and
flight risk. However, the court explicitly declined to find that
mandatory detention (§236(c)) was unconstitutional on its face,
because the court did not find that it would be unconstitutional in all
situations where it might apply. It noted that the plenary power of
Congress over immigration matters was subject to constitutional
limitations on the method of implementing policy and that aliens are
entitled to the protections of due process. The Ninth Circuit did not
adopt a strict scrutiny analysis. Instead, it chose to follow the
Supreme Court analysis in the Zadvydas case, noting that lawful
permanent residents are a favored category of aliens who have the
right to reside here permanently until a final removal order is
entered; therefore they have a strong liberty interest. Under due
process, civil detention is permitted only in certain special and
narrow, non-punitive circumstances. Removal proceedings are civil,
thus detention during such proceedings is permitted only in special
circumstances. The court held that the governmental reasons for
mandatory detention did not constitute sufficiently strong “special
justification.” On June 28, 2002, the U.S. Supreme Court granted
certiorari to this case under the name Demore v. Kim, No. 01-1491
to be heard in the upcoming term.
!In Welch v. Ashcroft, 293 F. 3d 213 (4th Cir. 2002), the Fourth
Circuit followed the Ninth Circuit in using a “special justification”
analysis with regard to mandatory detention of lawful permanent
residents under §236(c), and similarly held that it violated the due
process rights of lawful permanent resident aliens because it did not
provide for an individualized bail hearing.
Additionally, district courts in other circuits have also considered the validity
of mandatory detention of criminal aliens (§236(c)), with the majority finding it
unconstitutional, at least as applied to lawful permanent resident aliens, but with
some upholding the statute. Although apparently the cases generally involve lawful
permanent residents and the circuit decisions discussed above addressed the rights
of lawful permanent residents, in at least one case mandatory detention (§236(c)) was
found to be unconstitutional as applied to an illegal alien. In an unpublished opinion,
the Third Circuit upheld a district court which had held that due process required an
individualized hearing even for an illegal alien.42 A district court in the Third Circuit
recently criticized the INS for apparently attempting to circumvent the requirement
of the Patel decision when it effectively halted the release of a lawful permanent
resident alien who had been granted release on bond under Patel’s required hearing
for mandatory detention (§236(c)) by appealing the bond decision then requesting
inaction on the appeal.43 The court ordered the release of the alien.
Since the new §236A of the INA (mandatory detention of certified terrorists)
provides that an alien detained as a certified terrorist cannot be held indefinitely
unless a determination is made that the alien is a danger to the public and a flight
risk, it appears to avoid the constitutional problems of §236(c), mandatory detention
of criminal aliens.
42 United States ex rel. Radoncic v. Zemski, 28 Fed. Appx. 113 (3d Cir. 2001).
43 Almonte-Vargas v. Elwood, No. 02-CV-2666 (E.D. Penn. June 28, 2002).
Figure 2. Type of Facility Housing INS Detainees
as of January 7, 2002
Source: CRS analysis of INS Data
Note: Other refers to city, county, local, state, and federal facilities used under the
Intergovenmental Service Agreement. The INS detainee population varies daily
Many contend that INS does not have enough detention space to house all those
who should be detained. They contend that the increase in the number of classes of
aliens subject to mandatory detention has impacted the availability of detention space
for lower priority detainees. For example, there are 300,000 noncitizens in the
United States who have been ordered deported who have not left the country. Some
argue that these 300,000 people would have left the country if they had been detained
once they were ordered deported. Concerns have been raised that decisions on which
aliens to release and when to release the aliens may be based on the amount of
detention space, not on the merits of individual cases.44
Types of Facilities. The majority of INS detainees are not held in INS
facilities, raising concerns about the treatment of these detainees. There are four
types of facilities where detainees can be held: INS Service Processing Centers
(SPC’s), privately run facilities contracted by INS, Bureau of Prisons, and state and
local jails. INS has its own internal detention guidelines which provide uniform
44 The decision does not usually apply to aliens who are under mandatory detention. A high
priority detainee may be released to make space for a mandatory detainee. Nonetheless, INS
does have explicit procedures for choosing between two mandatory detainees if there is not
enough bed space.
standards regarding detention of aliens.45 Nonetheless, these standards only apply at
INS SPC’s and INS contract facilities, and do not cover state and local jails where
on January 7, 2002, approximately 68% of detainees were held. (See Figure 2.)
There are few guidelines for state and local jails.46 Since INS has a statutory47
obligation to use existing facilities before building new bed space, much of the
expansion of INS bed space will likely occur in state and local jails.
It has been reported that in local jails, administrative detainees (i.e., those who
are detained while they are applying for asylum, or those who overstayed visas
without committing a criminal offense) are often held with criminals serving
sentences or awaiting trial, and are often treated in the same manner (e.g., leg
shackling, strip searches) as the criminally convicted.48 Also, local jails often lack
the language interpretation services needed by many detainees. Additionally,
sometimes detainees are sent to facilities far from their families, lawyers, and ethnic
communities increasing the need for jail-sponsored interpretation services and
making it difficult for detainees to meet with their lawyers.
Cost. The overall increase in the number of noncitizens in INS detention has
raised questions about the cost of detaining noncitizens. INS budgets $75 a day for
each detainee held in detention. This cost does not include transportation or the cost
of deporting the alien. In FY2000, INS budgeted $1,390,125 for 18,535 beds of
detention space. For FY2001, the INS budget included $1,477,650 for 19,702 beds.
Lastly, in FY2002 INS budgeted $1,583,025 for 21,107 beds.49
Release on Parole and Bond
The Attorney General has the authority to parole detained aliens who are not
subject to mandatory detention. Most arriving aliens are not eligible for parole.
Parole is permitted for arriving aliens with serious medical conditions, pregnant
women, juveniles aliens who will be witnesses, and “aliens whose continued
detention is not in the public interest.”50 In general, parole is available on a “case-by-51
case basis for urgent humanitarian reasons or significant public benefit.”
45 For more information on INS Detention Standards, see:
[ h t t p : / / www.i n s .us doj .gov/ gr a phi c s / l a ws r e gs / gui da nc e .ht m] .
46 The state and local jails must adhere to four basic standards: 24-hour supervision,
conformance with safety and emergency code regulations, food service, and emergency
medical care. (8 C.F.R. §235.3(e))
47 INA §241(g)(2).
48 For specific examples see, Gordon, Charles, et al. Immigration Law and Procedure
49 Unpublished INS data obtained from Mark Schaffer, INS Office of Congressional Affairs,
August 29, 2002.
50 8 C.F.R. §212.5(b).
51 INA §212(d)(5)(A). Prior to the enactment of IIRIRA, the standard for parole was if it
was in the public interest or for emergency reasons.
The Attorney General may also release aliens not subject to mandatory detention
on bonds of a minimum of $1,500.52 To be released on bond the alien must prove
that he is not a threat to people or property, and will appear at all future immigration
In practice, release decisions are made by INS district directors. Although in
theory these directors follow the same standards for release, concern has been raised
that aliens with similar cases in different districts are treated differently in terms of
being eligible for release. Some contend that there is wide discrepancy throughout
the country in decisions regarding bond, and parole.53
Figure 3. Number of Juveniles in INS Custody: FY1996-FY2001
6596 6808 67517000
4457 4607 46754500
1996 1997 1998 1999 2000 2001
All Juveniles Unaccompanied Juveniles
Source: CRS Presentation of Unpublished INS Data.
INS defines a juvenile as an alien under the age of 18.54 As shown in Figure 3,55
the number of unaccompanied juveniles arriving in the United States has increased
52 IIRIRA raised the minimum bond amount from $500 to $1,500. INA §236(a)(2)(A).
53 Kerwin, Donald, and Charles Wheeler. All Locked Up and Nowhere to Go: Challenges
to INS Detention. Bender’s Immigration Bulletin, v. 5 no. 1. p. 3.
54 Individuals under the age of 18 who have been emancipated or convicted and incarcerated
as an adult are considered adults for INS purposes.
55 An unaccompanied juvenile is a juvenile whose parents or legal guardians are not present
over the same period. Table 2 shows that in FY2001 most of the unaccompanied
juveniles were males and the average age was 15. Absent reliable documentation the
INS determines the age of the individual, but there are no procedures to challenge an56
incorrect age determination.
Table 2. Age on Last Date in Custody and Gender of
Unaccompanied Minors in Custody, FY2001
Age in yearsNumber in custody
Less than 142
1 to 5251
6 to 10348
11 to 12204
13 to 14454
Median Age16 years
Average Age15 years
Source: CRS presentation of INS data.
Note: For those not released in FY2001, their age was calculated as of March 31, 2001. Those over
the age of 18 were juveniles when they were first placed in detention.
INS policy states that juveniles should be placed in the “least restrictive setting
appropriate” to their age and needs, that will protect the juvenile and the public and
assure that the juvenile will appear at court hearings.57 INS policy is that
unaccompanied juveniles are to be separated from unrelated adults while in custody.
Juveniles are to be released if possible to family members or a legal guardian.58 They
56 INS uses dental and wrist x-rays to determine age. There is some controversy surrounding
the accuracy of these techniques.
57 8 C.F.R. §236.3(a).
58 In order of preference, juveniles are to be released to: (1) a parent; (2) legal guardian; (3)
can also be released to an adult designated by the parents or legal guardians or a
licensed child-care facility (e.g., foster or group homes). INS does not operate any
such facilities, and thus must contract for detention space for juvenile detainees with
nonprofit, state, and local organizations. Educational classes are provided to all
juveniles in INS custody.59
Table 3. Time in Custody for Unaccompanied
Juvenile Custody Events, FY2001
Time in custodySecureNon-secureTotal
72 hours or less400384784
4 to 7 Days298653951
8 to 14 Days2377721,009
15 to 21 Days128399527
22 to 30 Days126295421
Total 30 days or less1,1892,5033,692
31 to 60 Days211523734
61 to 90 Days105238343
91 to 119 Days79117196
120 to 179 Days54125179
180 to 269 Days9075105
270 to 365 Days163955
More than 356 Days314879
Held over 72 hours1,3163,2854,601
Held over 30 days5271,1661,693
Total 1,716 3,669 5,385
Source: CRS analysis of INS data.
Note: In computing statistics related to juveniles in INS custody, INS tracks “custody events.”
Sometimes a juvenile is re-apprehended or moved to another facility — each counts as a custody
event. Consequently, the number of custody events is always higher than the number of individual
juveniles brought into custody.
an adult relative (i.e., sibling, grandparent, aunt). (8 C.F.R. §236.3(b)(1)).
59 INS’ Juvenile Detention and Shelter Care Program, on [http://www.ins.usdoj.gov]. Last
revised September 7, 2000.
As shown in Table 3, in 2001, INS detained 5,385 unaccompanied juveniles.
4,601 or 85% were detained for more than 72 hours. Nonetheless, 69% of the
juveniles were detained for 30 days or less, and 68% of those detained for under 30
days were detained in non-secure facilities. Non-secure facilities include foster
homes, shelters, group homes, hospitals, and hotels. Overall, as shown in Figure 4,
68% of the juveniles were detained in non-secure facilities. On average, they spent
Figure 4. Facility Security for Juveniles: FY2001
31. 9 %
Source: CRS presentation of INS data.
Legal Challenges to the Conditions of Juveniles in Custody. A
couple of law suits have led to the promulgation or proposal of regulations
establishing certain rights of juveniles in custody. As a result of the 1985 district61
court decision in the class-action law suit Perez-Funez v. INS, INS is required to:
!advise unaccompanied minors of their right to an attorney, a hearing
and to apply for asylum, before presenting them with a voluntary
!inform unaccompanied minors from Mexico and Canada who are
apprehended near the border that they may speak by phone to a
relative, friend, or pro-bono attorney;
60 Thompson, Cheryl. INS Creating Office to Oversee Juveniles in Custody. Washington
Post, February 2, 2002. p. A9.
61 619 F. Supp. 656 (C.D. Cal. 1985).
!ensure that other unaccompanied minors speak by phone to a
relative, friend, or pro-bono attorney;
!present unaccompanied minors with a list of pro-bono attorneys that
the juvenile can contact; and,
!obtain a signed acknowledgment from unaccompanied minors that
the INS has provided the required notices, information, and phone
In a recent federal district court ruling that was part of a class-action challenge
to the INS policy of not providing children with lawyers when they are facing
deportation in immigration proceedings, the judge ordered the federal government
to hire a lawyer for a child in INS detention.62 INS has not responded directly to the
ruling, but INS maintains that the INA prohibits the government from paying for
attorneys for the children.
Another lawsuit concerning release of juveniles from INS custody led to a U.S.
Supreme Court decision and proposed regulations which are still pending. In 1984,
the INS first adopted a policy, eventually formally promulgated as a regulation,
which required detention of unaccompanied minors unless there was an adult relative
or legal guardian available to assume custody, even where there was another
responsible adult willing and able to care for the minor and able to ensure his or her
attendance at a deportation hearing. In 1985, four juveniles filed a class-action suit
asserting that the federal Constitution and immigration statutes required their release
into the custody of responsible adults and challenging the INS policy as a violation
of their due process/equal protection rights under the Fifth Amendment. The U.S.
District Court for the Central District of California63 and the U.S. Court of Appeals
for the Ninth Circuit en banc64 each held that the juvenile detention policy implicated
constitutional rights of the plaintiffs. The Department of Justice petitioned the U.S.
Supreme Court for certiorari, which it granted. The respondents alleged that they had
a fundamental right to freedom from physical restraint under substantive due process;
that their procedural due process rights were violated and that even if the INS
regulation did not violate their constitutional rights, it exceeded the Attorney
General’s statutory authority.
In its opinion for Reno v. Flores,65 the U.S. Supreme Court reversed the lower
courts and upheld the regulation governing the detention policy. It held that the best
interests of the child was not the absolute and exclusive standard for judging the
exercise of governmental custody of a minor. It further held that minors have no
fundamental right to freedom from government detention which would implicate due
process rights, because minors are always subject to custody of some type, if not
parental custody, then state custody. Procedural due process rights did not require
an individual custody determination; a regular removal hearing before an
immigration judge provided adequate opportunity to raise a custodial issue. Finally,
62 Machado v. Ashcroft, No. CS-02-0066-FVS (E.D. Wash. March 5, 2002).
63 Flores v. Meese, 681 F. Supp. 665 (C.D. Cal 1988).
64 Flores v. Meese, 942 F.2d 1352 (9th Cir. 1991).
65 507 U.S. 292 (1993).
the Court found that the Attorney General had broad authority and discretion under
the immigration statutes to determine detention policies for juveniles.
A settlement between the respondents in Flores and the Department of Justice
has led to the proposal of regulations in 1998 which would codify the settlement.66
However, the final implementation of these regulations is still pending, apparently
delayed by consideration of regulations necessitated by the major amendments made
by IIRIRA that increased the categories of people subject to mandatory detention.67
The proposed regulations would make several changes to existing regulations by (1)
clarifying that the advisory of rights and other voluntary departure procedures
pursuant to Perez-Funez applies only to minors who are unaccompanied and not
arriving at a port-of-entry or via maritime interdiction; (2) setting time limits on
proper placement of minors; (3) establishing guidelines for agreements between the
INS and custodians of minors and for suitability assessments of custodians; (4)
requiring that all possessions and legal papers shall accompany a minor whenever a
minor is transferred from one placement to another; and (5) requiring notice to
counsel representing a minor of any transfer except in certain specified
Inspector General Report on Unaccompanied Juveniles. In
September 2001, the Inspector General released a report that reviewed the treatment
of unaccompanied juveniles in INS custody.68 The report specifically focused on the
implementation of policies developed in response to Flores. The report found that
although INS had made improvements in its Juvenile Program there were still
problems with INS treatment of unaccompanied juveniles. The investigation found
that INS does not segregate non-delinquent and delinquent juveniles once the
juveniles are placed in a secure facility. The report also noted that although INS
policy prohibits the use of restraints on non-delinquent juveniles, facilities in four
districts used restraints when transporting these juveniles. Additionally the report
observed that while Flores requires INS to place all juveniles in an appropriate
juvenile facility within 5 days of being apprehended, INS did not always meet this
requirement. Furthermore, the investigation revealed that some districts were not
complying with the INS policy requirement that district juvenile coordinators meet
weekly with each unaccompanied minor.
Issues of Juveniles in Custody. Advocates for children’s rights criticize
the current immigration system for not adequately addressing the special needs of
unaccompanied, unlawfully present juvenile aliens who are in detention pending
asylum or removal proceedings. The issues concerning the detention of
unaccompanied minors have led to the court decisions discussed above, proposed
regulations, and proposed legislation to establish an office within the DOJ but outside
of the INS which would be dedicated to ensuring the welfare of unaccompanied
juveniles in the immigration system. Some contend that INS treats juveniles as aliens
66 63 Fed. Reg. 39759 (1998).
67 67 Fed. Reg. 33221, 33276 (2002).
68 Office of the Inspector General. Unaccompanied Juveniles in INS Custody. Report
Number I-2001-009, September 28, 2001. (Hereafter referred to as Inspector General
first, and children as an afterthought. Detained children are placed in immigration
removal proceedings which are administrative and adversarial. Many argue that
detained children should not be treated as adults since they have special needs as
children. Many of these children have experienced separation from primary care
givers. Some of the children have been used in human trafficking schemes, and
others are fleeing from persecution and war. These children may be retraumatized
by their confinement. Advocates also note that INS is still not fully separating non-
delinquent and delinquent juveniles, as well as separating juveniles from non-related
adults in custody.69 Conversely, others note that most unaccompanied juveniles are
between 15 and 18 years of age and that some have criminal histories.
Additionally, some contend that INS refuses to release some juveniles from
custody and uses them as bait to get family members who are illegally in the country
to turn themselves in. INS denies this practice.70 On February 1, 2002, INS
Commissioner James Ziglar announced that he was creating an office, the Office of
Juvenile Affairs (OJA), to oversee the protection of juveniles in INS custody. The
OJA will review shelter care standards for minors, seek alternatives to detaining
juveniles, and work to reunite juveniles with their families. The OJA will also
coordinate services to juveniles by INS field offices, and ensure that juveniles who
are removed from the United States are removed in a safe manner.71 The INS issued
a final regulation on June 7, 2002, which transferred daily oversight of certain
functions related to juveniles in custody to the Director of OJA. The new rule gives
the Director of OJA the sole authority to determine issues of detention and release
of juveniles including parole. This authority was previously exercised by district
There are certain aliens in indefinite administrative custody who have been
ordered removed from the United States, but are detained because they cannot obtain
travel documents to another country and INS refuses to release them. These
detainees are often referred to as “lifers” or “unremovables.”73 Many of these
69 Inspector General Report.
70 Levy, Marc. INS Youth Handling Under Scrutiny. Washington Post Online:
[www.washingtonpost.com] February 14, 2002.
71 Thompson, Cheryl. INS Creating Office to Oversee Juveniles in Custody. Washington
Post, February 2, 2002. p. A9.
72 Federal Register, v. 67, no. 110, Friday June 7, 2002. p. 39255-39260. The district
directors retain authority concerning detention and release of adults in custody.
73 Most indefinite detainees are from countries that lack normal diplomatic relations with
the United States (e.g., Cuba, Iran, North Korea). (The majority of “lifers” are Mariel
Cubans.) Other indefinite detainees are stateless people (e.g., Palestinians and persons from
the former Soviet Union who do not meet the citizenship requirements for any of the newly
independent states) or persons whose nationality cannot be determined. Other indefinite
detainees are from countries that refuse to accept the return of their nationals (e.g., Vietnam,
Laos, Cambodia, and the People’s Republic of China) or from countries experiencing
immense upheaval. Others may be indefinitely detained because the alien has strong ties
detainees have criminal records, but some simply lack immigration status and the
ability to return to their country of origin. Some detainees have been in INS
detention for a longer time period than their criminal incarceration. In 2000, INS
estimated that it had 5,000 aliens in indefinite administrative custody.74
In a 5-4 decision in Zadvydas v. Davis75, the U.S. Supreme Court held that a
statute permitting indefinite detention would raise serious constitutional problems
because the Due Process Clause of the Fifth Amendment prohibits depriving any
person, including aliens, of liberty without due process of law. Therefore, in keeping
with principles of statutory construction and the absence of clear congressional intent
for indefinite detention, the Court read an implicit limitation into the post-removal
detention statute, such that detention is limited to a period “reasonably necessary” to
achieve an alien’s removal. The Supreme Court established 6 months after the initial
90-day removal period expires as the presumptively reasonable period. After this
period, once an alien shows that there is good reason to believe that “there is no
significant likelihood of removal in the reasonably foreseeable future,” the
government must rebut that showing with sufficient evidence. The Court emphasized
that its holding does not mean that all aliens must be released in 6 months and that
an alien may be held until it has been determined that “there is no significant
likelihood of removal in the reasonably foreseeable future.” With regard to civil
matters, government detention may be consistent with due process in certain special
and narrow non-punitive cases where special factors outweigh the individual’s liberty
interest. Post-removal detention is civil and non-punitive; the Court found that the
goals of post-removal detention are not strong enough to justify indefinite detention
as administered under the statute. The Court suggested that special arguments could
be made for a statutory scheme of preventive detention for terrorists or other aliens
in special circumstances and for heightened judicial deference for executive and
legislative branch decisions regarding national security matters.
In response to this decision, the Attorney General issued regulations governing
the review of post-removal order detention cases for a determination of foreseeability
of removal. The Attorney General issued regulations, effective November 14, 2001,
concerning the continued detention of aliens subject to final orders of removal that
are consistent with the Zadvydas decision.76 Subsequently, Chief Immigration Judge
Michael Creppy issued a memorandum on the Immigration Court’s policy regarding
these regulations. The regulations and the memorandum establish four categories of
aliens whose removal from the United States is not foreseeable, but whom the
Attorney General may continue to detain. These “special circumstances” include:
to the United States, and only attenuated connections to their country of origin. For
example, an alien may be brought by his parents to the United States as a 2-year old, and
live in the United States for 40 years without naturalizing. If the person commits a crime
and is removable, his birth country may refuse to take him.
74 Conversation with Tim Huagh, INS Congressional Affairs.
75 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001).
76 66 Fed. Reg. 56967 (2001); 8 C.F.R. at §§241.4, 241.13 and 241.14.
!aliens with a highly contagious disease that poses a threat to public
!aliens whose release would cause serious adverse foreign policy
!aliens detained for security or terrorism reasons; and
!aliens determined to be specifically dangerous.
Of these four categories, only the fourth requires the involvement of the Immigration
Court; the other three remain under INS discretion.77
A recent Ninth Circuit appellate decision, Lin Guo Xi v. U.S. Immigration and
Naturalization Service,78 embodies the emerging issue of whether the Zadvydas
holding applies to inadmissible aliens as well as to deportable aliens.79 The opinion
of the court notes that, although the Zadvydas case involved two deportable
permanent resident aliens, the detention provision in the removal statute at issue
applies to both inadmissible and deportable aliens, therefore the U.S. Supreme
Court’s construction of a time limit likewise applies to both categories of aliens. The
dissent in Lin Guo Xi argues that the limit on post-removal order detention does not
apply to inadmissible aliens and notes that the U.S. Supreme Court in Zadvydas
explicitly let stand an older decision which distinguished between the indefinite
detention of an excludable alien (similar to inadmissible alien under current law) who
sought to enter the United States and a deportable alien who had entered the United
States.80 Some scholarly commentators have also considered the scope of Zadvydas,
contrasting the potentially bifurcated approach of some of that opinion’s language
with its statutory construction apparently covering all aliens in post-removal
77 Creppy, Michael. Operating Policies and Procedures Memorandum November 19, 2001.
Reprinted in Interpreted Releases January 14, 2002. p. 74-83.
78 298 F.3d 832 (9th Cir. 2002).
79 Inadmissible aliens have not yet been admitted to the United States after inspection and
are ineligible to be admitted legally. Deportable aliens have been inspected and admitted
to the United States, but subsequently have become ineligible to remain and are subject to
removal. Those who are physically in the United States but who entered without inspection,
i.e., illegally, are also considered inadmissible. Long-standing legal doctrine, commonly
known as the “entry fiction,” holds that those who are inadmissible have no substantive due
process right to enter or remain in the country, whereas those who are deportable do have
80 Prior to IIRIRA, aliens ineligible to enter the country were “excludable,” rather than
“inadmissible,” and were subject to exclusion proceedings, while deportable aliens were
subject to deportation proceedings. After IIRIRA, exclusion and deportation proceedings
were consolidated into removal proceedings, but certain aliens are subject to expedited
removal. The salient difference between excludable and inadmissible aliens is that aliens
who entered without inspection were not considered excludable, whereas such aliens are
now considered inadmissible, which means they are not entitled to the same level of rights
in removal proceedings. This change was made as a disincentive to entering illegally, since
formerly, the entry fiction worked in favor of those who entered illegally.
81 Pistone, Michele R. A Times Sensitive Response to Professor Aleinikoff’s Detaining
Plenary Power, 16 Geo. Immigr. L.J. 391 (2002); Aleinikoff, T. Alexander. Detaining
September 11 Detainees
In the wake of the September 11 attacks many noncitizens who resemble the
ethnic, national origin and religious description of the attackers have been detained
or removed from the United States. The Department of Justice (DOJ) has not
released the names of the detainees and has chosen to close immigration hearings for
some of the detainees. Civil and human rights advocacy groups, including Amnesty
International and the Center for Constitutional Rights, have alleged that the
constitutional rights of the detainees have been violated and that they have been
subjected to human rights abuses while in detention. Consequently, several law suits
have been filed challenging the non-disclosure of individual detainee information,
the closed hearings, and the detention conditions.
A DOJ memorandum to Senate Investigations Subcommittee Chairman Carl
Levin, dated July 3, 2002,82 indicates that a total of 752 persons have been detained
in INS custody at some point since September 11, 2001, in connection with the
terrorist attack investigation. Of this number, 81 persons remained in INS custody
as of the date of the DOJ memorandum. Of these remaining detainees, 73 have had
a removal hearing and 38 of these have final removal orders.
The aliens being detained by the INS likely do not represent all aliens being
detained in connection with the investigation into the September 11 attacks. Some
perhaps number among those individuals charged with federal crimes in connection
with the September 11 terrorist attacks or among those held on material witness
warrants.83 Also, aliens being detained in Guantanamo Bay, Cuba, are not in INS
Plenary Power: The Meaning and Impact of Zadvydas v, Davis, 16 Geo. Immigr. L.J. 365
82 Memorandum from Daniel J. Bryant, Assistant Attorney General, to Senator Carl Levin,
Chairman of the Investigations Subcommittee of the Senate Committee on Governmental
Affairs (July 3, 2002). (Hereafter cited as Levin Memorandum.)
83 According to the Levin Memorandum, as of June 28, 2002, the Criminal Division of the
Department of Justice had charged 129 persons with federal crimes in connection with the
investigation into the September 11 terrorist attacks. Of that number, three were fugitives,
while the rest had been arrested and had a hearing, of whom 76 remained in custody. The
Department of Justice declined to disclose information regarding material witnesses, citing
potential adverse impact on ongoing investigations. Two federal district court decisions in
New York disagree as to whether the Department of Justice may detain material witnesses
for a grand jury investigation. In United States v. Awadallah, 202 F. Supp. 2d 55 (S.D.N.Y.
2002) and United States v. Awadallah, 202 F. Supp. 2d 82 (S.D.N.Y. 2002), Judge
Scheindlin found that the arrest and detention of a material witness in the context of a grand
jury investigation was not authorized by statute and, even if it were, possibly violated
constitutional rights where a cooperative witness was detained for a prolonged, indefinite
period. On the other hand, in In re the Application of the United States for a Material
Witness Warrant, pursuant to 18 U.S.C. §3144, for John Doe, No. 01 M. 1750 (MBM)
(S.D.N.Y. July 11, 2002), Judge Mukasey disagreed with the Awadallah decisions,
upholding the detention of a material witness for a grand jury investigation in accordance
with long-standing use of the material witness statute for such a purpose and judicial
custody; they are in the custody of the U.S. Military as unlawful combatants captured
and detained outside the United States.
Thus, while some aliens have been detained after September 11 for lengthy
periods prior to release, as noted in the Turkmen law suit discussed below, it appears
that such detention may be pursuant to different authorities, including detention as
an alien charged with a federal crime or detention as a material witness,84 as well as
pursuant to the pre- and post-removal detention provisions discussed above.
Among those aliens in INS custody, some may have been detained pursuant to
regulatory changes issued by the INS Commissioner, effective September 20, 2001,85
which have been criticized by some as enabling indefinite and mandatory detention
beyond the scope of constitutional or statutory authority.86 The changes were made
with the intent to give law enforcement more flexibility to investigate terrorist
attacks. Before amendment, the regulations87 provided that, after the arrest of an
alien without warrant by INS officers, unless voluntary departure88 is granted, the INS
must make a determination within 24 hours about whether to initiate removal
proceedings and issue a warrant, and whether to release the alien on bond or
cognizance or to continue detention. The amendments extended the time period for
the determination to 48 hours after arrest, except 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.” The regulation did not define “emergency
or other extraordinary circumstance” nor establish what would be “an additional
reasonable period of time.” Therefore, critics of the regulations suggested that they
permitted indefinite detention of an alien, who is not certified as a terrorist, without
charging an immigration or other violation in undefined “extraordinary
circumstances,” contrary to constitutional standards and the new §236A of the INA,
which requires the Attorney General to charge a certified terrorist within 7 days.
Detainee Information. Several suits seeking alien detainee information have
been filed in federal and state courts. Immigrant and civil liberties advocacy groups
have alleged that many detainees are being deprived of their right to counsel by being
provided with outdated and inaccurate lists of legal aid lawyers, not being allowed
to call their lawyers or only being permitted to make collect phone calls to seek legal
assistance, etc. Therefore, aside from a general concern about the secrecy of
precedent indicating no constitutional problem.
84 Pursuant to 18 U.S.C. §3144.
85 66 Fed. Reg. 48334 (2001).
86 Cahill, Stephanie Francis. ABA Panel Opposes INS “Incommunicado Detention,” 1 ABA
Journal eReport (2002), at: [http://www.abanet.org/journal/ereport/jy26immig.html];
Immigrant Rights Clinic, N.Y.U. School of Law, Shirley Huey et al., Administrative
Comment: Indefinite Detention without Probable Cause: A Comment on INS Interim Rule
87 8 C.F.R. §287.3(d).
88 In lieu of removal proceedings, an alien who is not removable on criminal or terrorist
grounds may be permitted to voluntarily depart from the United States within 120 days.
detention proceedings, the ACLU and other groups which are willing to provide legal
representation free of charge to the detainees claim that they need information on
detainees so that they can contact them to determine whether the detainees need
assistance. The DOJ has declined to release the names of detainees on various
grounds including the protection of potential witnesses to crimes, the need to protect
information concerning on-going investigations into terrorist networks and other
national security matters, the protection of public safety and national security, and the
protection of the privacy interests of detainees.
The ACLU of New Jersey filed suit on January 22, 2002, in a New Jersey State
court against Hudson and Passaic Counties in New Jersey seeking the names and
other information concerning alien detainees housed for the INS in county detention
facilities. On March 27, 2002, New Jersey Superior Court Judge Arthur D’Italia
found that New Jersey statutes required public availability of the requested
information and that there was no exception for such information. In the wake of this
decision, the INS issued an interim rule restricting the release of information
regarding INS detainees in non-federal facilities, effective April 17, 2002.89 The rule
notice emphasized that the new rule does not affect the ability of detainees to seek
counsel, to identify themselves, or to communicate with others directly, but only
restricts non-federal facilities from releasing information. Ultimately, the New Jersey
Appellate Division reversed the Superior Court decision and upheld the authority of
the INS in issuing the regulations withholding detainee information, in light of
federal government authority over immigration and national security matters
preempting State actions in these areas and the INS Commissioner’s proper exercise
of authority granted to him under the INA.90 The New Jersey Supreme Court
declined to hear the case, letting the decision stand.
Additionally, a coalition of the Center for National Security Studies and other
civil liberties advocacy groups filed suit on December 5, 2001, in the federal district
court in the District of Columbia seeking the disclosure of alien detainee information
in federal records maintained by federal agencies under the Freedom of Information
Act (FOIA, found at 5 U.S.C. §552).91 The Department of Justice had disclosed
some of the requested information, but did not release the remainder of the
information for reasons noted above. On August 2, 2002, D.C. District Court Judge
Gladys Kessler found that the federal government could not justify completely
exempting the disclosure of the identities of the detainees or of their lawyers under
various exceptions to disclosure under FOIA, including exceptions for information
gathered for law enforcement purposes where disclosure would interfere with
enforcement proceedings, invade personal privacy, or endanger the life or safety of
any individual.92 The government failed to show that mere disclosure of names
89 Release of Information Regarding Immigration and Naturalization Service Detainees in
Non-Federal Facilities, 67 Fed. Reg. 19508 (April 22, 2002)(to be codified at 8 C.F.R. pts.
90 ACLU of New Jersey v. County of Hudson, 799 A.2d 629 (N.J. Super. Ct. App. Div. 2002).
91 Center for National Security Studies v. Department of Justice, Civ. No. 01-2500 (D.D.C.
filed December 5, 2001).
92 Center for National Security Studies v. U.S. Dept. of Justice, 215 F. Supp. 2d 94 (D.D.C.
would compromise the terrorism investigations. However, the court found that the
privacy and safety concerns for detainees were valid and could be addressed by
permitting each detainee to choose not to have his/her identity revealed. These
concerns did not apply to the names of detainees’ attorneys, because they had no
expectation of anonymity and concerns about safety were speculative. The court
further held that the government could not withhold the identities of all material
witnesses under FOIA or under sealing orders of a court without further explanation.
The court found that the government had properly withheld the dates and locations
of arrest, detention, and release since disclosure of such information could
compromise the on-going terrorism investigation and the plaintiffs were not entitled
to such information under the First Amendment and federal common law. In
accordance with the above findings, the court ordered the government to disclose the
names of detainees and their lawyers within 15 days, with exceptions for detainees
opting to withhold their identities and for material witnesses for whom the
government claimed a sealing order which must be submitted for review by the court.
Lastly, the court found that the government had not conducted a search adequate to
comply with the plaintiffs’ FOIA request for any other policy directives about
disclosure of detainee information and closed hearings. Therefore, the court ordered
the government to conduct a new search within 30 days. The government is
appealing this decision and on August 15, 2002, the district court granted a stay of
its order pending appeal.93
Closed Hearings. Under regulation,94 immigration hearings, other than
exclusion hearings, shall be open to the public except that “[f]or the purpose of
protecting witnesses, parties, or the public interest, the Immigration Judge may limit
attendance or hold a closed hearing.” On September 21, 2001, the Chief Immigration
Judge, Michael J. Creppy, pursuant to authorization by Attorney General Ashcroft,
issued a memorandum directing Immigration Judges to close hearings in “special
interest” cases for which the Department of Justice requires special security
procedures, meaning that no visitors, no family, and no press are permitted to be in95
the courtroom. Accordingly, immigration proceedings concerning some of the post-
September 11 detainees were ordered closed to the public.96 The restriction on
information included information on scheduling of a hearing in a particular case even
to the extent of neither confirming nor denying that a particular case is on the docket.
Consequently, media outlets in Michigan and New Jersey filed suit against Attorney
General Ashcroft to enforce their First Amendment interest in reporting on such
93 Center for National Security Studies v. U.S. Dept. of Justice, 217 F. Supp. 2d 58 (D.D.C.
94 8 C.F.R. §3.27(b).
95 Creppy, Michael. Cases Requiring Special Procedures (September 21, 2001), at:
[ h t t p : / / www.acl u.or g/ cour t / c r e ppy_memo.pdf ] .
96 According to the Levin Memo, 611 persons have been subject to closed hearing pursuant
to the directive issued by Chief Immigration Judge Michael Creppy, of whom 419 have had
more than one closed hearing.
proceedings, and some of the detainees have also challenged the closing of their
Suits brought by the media outlets asserting First Amendment rights of the press
to have access to the deportation hearing of Rabih Haddad in Michigan were
consolidated as Detroit Free Press v. Ashcroft; Congressman John Conyers, Jr.,
ranking member of the House Committee on the Judiciary, also joined the suit. For
pre-trial proceedings, this suit was further consolidated with Haddad v. Ashcroft, the
suit filed by Haddad himself contesting the secrecy of the hearing as a violation of
the Administrative Procedures Act,97 the INA, and his right to due process under the
Fifth Amendment of the federal Constitution. On April 3, 2002, District Court Judge
Nancy Edmunds granted the plaintiffs’ motion for a preliminary injunction for
immediate access to future removal hearings for Haddad and transcripts of previous
hearings and denying the defendants’ motion to dismiss.98 In granting the
preliminary injunction, the court found that the plaintiffs had a strong likelihood of
success on the merits. On April 18, 2002, a three-judge panel of the U.S. Court of
Appeals for the Sixth Circuit denied the federal government’s request for an
emergency stay of the preliminary injunction, pending consideration of its appeal of
the preliminary injunction.99 The government then complied with the injunction by
releasing transcripts of past hearings in the Haddad case. On August 26, 2002, the
Sixth Circuit affirmed the granting of the preliminary injunction against blanket
closure of deportation hearings in “special interest” cases.100
The circuit court analyzed the preliminary injunction under several factors, the
most pertinent being the plaintiffs’ likelihood of success on the merits of the case.
It rejected the federal government’s contention that its plenary power over
immigration warranted deferential review, finding that such power is limited by the
Constitution, including the First Amendment, with regard to non-substantive,
procedural immigration laws. By “experience and logic,” there is a First Amendment
right of public access to deportation hearings. Traditionally, they have been open and
public access ensures the integrity of the process. Since a First Amendment right is
implicated, the governmental action in hearing closure is subject to a higher standard
of judicial review than deference. The government must show that closure is
necessitated by a compelling governmental interest and is narrowly tailored to serve
that interest. Although the court agreed that national security was a compelling
governmental interest, it found that blanket closure was not narrowly tailored to serve
that interest. A case-by-case consideration of closure would still protect national
security interests while also protecting the constitutional right to access. The court
found that the remaining factors for analyzing a motion for preliminary injunction,
also favored a grant. The plaintiffs would suffer irreparable harm if denied access
to the hearings; others would not be substantially harmed by the injunction since
closure could still be obtained on a case-by-case basis; and the public interest is best
served by open hearings.
97 5 U.S.C. §§551 et seq.
98 Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937 (E.D. Mich. 2002).
99 Detroit Free Press v. Ashcroft, No. 02-1437, 30 Media L. Rep. 1767 (6th Cir. April 18,
100 Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).
Although removal proceedings for Haddad had been open since the Sixth
Circuit’s denial of the stay of Judge Edmunds’ order in April 2002, Haddad
challenged the constitutionality of his original detention/bond hearing because it had
been closed under the Creppy memorandum and asked for a new, open hearing
before a new immigration judge unbiased by the prior proceedings. On September
17, 2002, in Haddad v. Ashcroft,101 Judge Edmunds granted the plaintiff’s motion for
a preliminary injunction, ordering the INS to hold a new, open bond hearing before
a new immigration judge or to release Haddad within 10 days. The district court
found that Haddad had a likelihood of success on the merits because he had a
constitutional procedural due process right to an open bond hearing before a new
immigration judge. Accordingly, a new immigration judge held a new bond hearing,
but determined that a portion of the hearing should be closed to permit the
introduction of evidence with national security implications. The reasons for the
decision to close the hearing were not entered in the record of the proceedings and
the plaintiffs’ counsel were not given an opportunity to object to the closure. The
news media and Haddad moved to enjoin the immigration judge to detail the reasons
for the closing in the record, to allow the newspapers’ counsel to be heard, to release
transcripts of the closed proceedings and also a copy of the Government’s brief, and
to grant Haddad’s counsel in his challenge to the closed hearings access to certain
evidence provided to his immigration counsel. On October 7, 2002, Judge Edmunds
concluded that closure was necessary to protect national security, but that the
immigration judge should have made findings on the record as to why closure was
necessary and that in the future the immigration judge should enter such findings and
reasons on the record before closing hearings.102 Additionally, the district court
found that Haddad’s counsel should have access to information given to his
In North Jersey Media Group v. Ashcroft, the plaintiffs alleged that the policy
of closing removal hearings in certain “special interest” cases pursuant to the Creppy
memorandum was a violation of the First Amendment right of access by the press
and public to such hearings and of the INS regulations concerning closed hearings.
On May 28, 2002, District Court Judge John Bissell granted the plaintiffs’ motion for
a preliminary injunction prohibiting the federal government from instituting a blanket
policy of closing hearings in all special interest cases and denying the defendants’
motion to dismiss.103 After the Third Circuit Court of Appeals refused to grant a stay
pending appeal of the district court order to open hearings,104 the Supreme Court
reversed and granted the stay upon an emergency petition by the Attorney General
to keep hearings closed pending appeal.105
101 No. 02-70605 (E.D. Mich. Sept. 17, 2002).
102 Detroit Free Press v. Ashcroft, No. 02-70339 and 02-70605 (E.D. Mich. Oct. 7, 2002).
103 North Jersey Media Group v. Ashcroft, 205 F. Supp. 2d 288 (D.N.J. 2002).
104 Greenburg, Jan Crawford. Court Stops Open Deportation Hearings; A Federal Judge
Had Allowed the Public to Attend. The Philadelphia Inquirer, June 30, 2002. p. A13.
105 Ashcroft v. North Jersey Media Group, 122 S. Ct. 2655, 153 L. Ed. 2d 831 (2002).
On October 8, 2002, the Third Circuit Court of Appeals, in a 2-1 decision,
reversed the district court and denied the preliminary injunction.106 Like the Sixth
Circuit, the Third Circuit appellate panel found that the executive branch power over
immigration proceedings is limited by First Amendment interests under the
Constitution. However, unlike the Sixth Circuit, the Third Circuit found that there
was no First Amendment right of public and press access to deportation hearings by
“experience and logic.” The court found that the tradition of open deportation
hearings was “too recent and inconsistent to support a First Amendment right of
access.” The court rejected the newspaper plaintiffs’ contention that a First
Amendment right of access could be found based on the logic prong alone of the test
for whether there is a First Amendment right of access. The court found that even
if it were to adopt this position, the logic prong of the test was not satisfied for open
deportation hearings. In the logic part of the test, the court considered whether public
access played a significant positive role in deportation hearings. On balance, the
threat to national security posed by open hearings outweighed the public good served
by open hearings. Having found no First Amendment right of access to deportation
hearings, the court did not have to consider whether blanket closures under the
Creppy memorandum were narrowly tailored to protect national security and whether
the national scope of the district court’s injunction was too broad. Judge Scirica, the
dissenter on the panel, agreed with the Sixth Circuit that there was a sufficient
tradition of open deportation hearings, that there was a First Amendment right of
access, and that closure should be determined on a case-by-case basis. Judge Scirica
did not think that the national scope of the district court’s injunction was appropriate
and that federal courts in other jurisdictions should have the opportunity to decide the
issues for themselves and the U.S. Supreme Court should have the chance to resolve
any jurisdictional differences on the issues. The split between the Third and Sixth
Circuits presents such an opportunity, causing speculation in legal, media and
immigration circles about whether the Supreme Court will be petitioned to take one
or the other or both cases and what the ramifications may be if the Supreme Court
takes a case.
In response to litigation on blanket closure, the Attorney General implemented
regulations, effective May 21, 2002, authorizing immigration judges to close hearings
on a case-by-case basis and to issue protective orders for cases involving security-
sensitive information upon request by federal government lawyers and noting that the
new regulations were intended to complement the Creppy memorandum of
September 21, 2001.107 Subsequently, Chief Immigration Judge Michael Creppy
issued a memorandum on the Immigration Court’s policies and procedures regarding
these regulations, citing the new regulatory criteria of substantial likelihood that the
information for which protection is granted would harm national security or U.S. law
enforcement interests if disclosed and establishing procedures for ensuring non-
disclosure of protected information.108
106 North Jersey Media Group v. Ashcroft, No. 02-2524 (3d Cir. Oct. 8, 2002).
107 67 Fed. Reg. 36799 (2002).
108 Creppy, Michael. Interim Operating Policies and Procedures Memorandum 02-02 (July
Detention Conditions. Immigration, civil, and human rights groups have
alleged that the post-September 11 alien detainees have been subjected to
constitutional and human rights abuses under the conditions of their detention.
Amnesty International published a report detailing its allegations which it sent to the
federal government with a memorandum. In early April 2002, DOJ announced that
its Office of the Inspector General was opening an investigation into allegations of
abuse at two detention facilities, the Metropolitan Detention Center in Brooklyn,
which is under the jurisdiction of the federal Bureau of Prisons, and the Passaic
County jail in New Jersey.
A class action suit, Turkmen v. Ashcroft, CV-02-2307, was filed in federal
district court in New York on April 17, 2002, by the Center for Constitutional Rights
on behalf of three named plaintiffs and a class described as males who are nationals
of Middle Eastern or South Asian countries, are practitioners of Islam, were ordered
deported or granted voluntary departure yet detained beyond the time necessary to
effect removal from the United States. These plaintiffs allege violations of their
rights under the First, Fourth, Fifth, and Sixth Amendments of the federal
Constitution, including being prevented from practicing their religion; targeted on the
basis of their religion, ethnicity and nationality; denied access to counsel; and
detained longer than necessary to effect removal. Additionally, the suit alleges that
rights under customary and treaty-based international law were violated when the
plaintiffs were not permitted to contact their consulates or embassies for assistance
and when they were subjected to cruel and inhumane treatment by their guards. This
case is pending.
In addition to the Turkmen case, on September 9, 2002, the Lawyers’ Committee
for Civil Rights, representing Hady Hassan Omar, an Egyptian Muslim immigrant
who was detained for 73 days last fall as part of the post-September 11 investigatory
detention of non-citizens, filed a federal law suit in Louisiana against various federal
officials and agencies, alleging violations of his civil rights under the First, Fourth,
Fifth, and Fourteenth Amendments of the Constitution and asking $1 million in
damages.109 Some of the allegations are similar to those in the Turkmen case,
including denial of access to counsel and being prevented from practicing the
109 Matthew Brzezinski, Hady Hassan Omar’s Detention, N.Y. Times, Oct. 27, 2002, at
Magazine 50-55; 9/11 detainee lawsuit alleges abuse in prison, Chi. Trib., Sept. 11, 2002,
at News 6; Amy Upshaw, Egyptian arrested in Arkansas sues; Mistreated by federal
authorities in post-9/11 roundup, he claims, Ark. Democrat-Gazette, Sept. 10, 2002, at A1;
Bob Egelko, Detainee sues over treatment; Egyptian immigrant contends he was repeatedly
searched, harassed, S.F. Chron., Sept. 10, 2002, at A9; Dan Eggen, 9/11 Detainee Files
Lawsuit; Egyptian Arrested Sept. 12 Alleges Mistreatment, Wash. Post, Sept. 10, 2002, at