8 U.S.C. § 1226 — Apprehension and detention of aliens

Page 296 TITLE 8—ALIENS AND NATIONALITY § 1226 1 So in original. Probably should be ‘‘sentenced’’. references, see note set out under section 1551 of this title. EXCHANGE OF TERRORIST INFORMATION AND INCREASED PREINSPECTION AT FOREIGN AIRPORTS Pub. L. 108–458, title VII, § 7210(a), (b), Dec. 17, 2004, 118 Stat. 3824, provided that: ‘‘(a) FINDINGS.—Consistent with the report of the Na- tional Commission on Terrorist Attacks Upon the United States, Congress makes the following findings: ‘‘(1) The exchange of terrorist information with other countries, consistent with privacy require- ments, along with listings of lost and stolen pass- ports, will have immediate security benefits. ‘‘(2) The further away from the borders of the United States that screening occurs, the more secu- rity benefits the United States will gain. ‘‘(b) SENSE OF CONGRESS.—It is the sense of Congress that— ‘‘(1) the Federal Government should exchange ter- rorist information with trusted allies; ‘‘(2) the Federal Government should move toward real-time verification of passports with issuing au- thorities; ‘‘(3) where practicable, the Federal Government should conduct screening before a passenger departs on a flight destined for the United States; ‘‘(4) the Federal Government should work with other countries to ensure effective inspection regimes at all airports; ‘‘(5) the Federal Government should work with other countries to improve passport standards and provide foreign assistance to countries that need help making the transition to the global standard for identification; and ‘‘(6) the Department of Homeland Security, in co- ordination with the Department of State and other Federal agencies, should implement the initiatives called for in this subsection.’’ § 1226. Apprehension and detention of aliens (a) Arrest, detention, and release On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the At- torney General— (1) may continue to detain the arrested alien; and (2) may release the alien on— (A) bond of at least $1,500 with security ap- proved by, and containing conditions pre- scribed by, the Attorney General; or (B) conditional parole; but (3) may not provide the alien with work au- thorization (including an ‘‘employment au- thorized’’ endorsement or other appropriate work permit), unless the alien is lawfully ad- mitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization. (b) Revocation of bond or parole The Attorney General at any time may revoke a bond or parole authorized under subsection (a), rearrest the alien under the original warrant, and detain the alien. (c) Detention of criminal aliens (1) Custody The Attorney General shall take into cus- tody any alien who— (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having com- mitted any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sen- tence 1 to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, super- vised release, or probation, and without regard to whether the alien may be arrested or im- prisoned again for the same offense. (2) Release The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a wit- ness, a potential witness, a person cooperating with an investigation into major criminal ac- tivity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investiga- tion, and the alien satisfies the Attorney Gen- eral that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled pro- ceeding. A decision relating to such release shall take place in accordance with a proce- dure that considers the severity of the offense committed by the alien. (d) Identification of criminal aliens (1) The Attorney General shall devise and im- plement a system— (A) to make available, daily (on a 24-hour basis), to Federal, State, and local authorities the investigative resources of the Service to determine whether individuals arrested by such authorities for aggravated felonies are aliens; (B) to designate and train officers and em- ployees of the Service to serve as a liaison to Federal, State, and local law enforcement and correctional agencies and courts with respect to the arrest, conviction, and release of any alien charged with an aggravated felony; and (C) which uses computer resources to main- tain a current record of aliens who have been convicted of an aggravated felony, and indi- cates those who have been removed. (2) The record under paragraph (1)(C) shall be made available— (A) to inspectors at ports of entry and to border patrol agents at sector headquarters for purposes of immediate identification of any alien who was previously ordered removed and is seeking to reenter the United States, and (B) to officials of the Department of State for use in its automated visa lookout system. (3) Upon the request of the governor or chief executive officer of any State, the Service shall Page 297 TITLE 8—ALIENS AND NATIONALITY § 1226 provide assistance to State courts in the identi- fication of aliens unlawfully present in the United States pending criminal prosecution. (e) Judicial review The Attorney General’s discretionary judg- ment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the deten- tion or release of any alien or the grant, revoca- tion, or denial of bond or parole. (June 27, 1952, ch. 477, title II, ch. 4, § 236, 66 Stat. 200; Pub. L. 101–649, title V, § 504(b), title VI, § 603(a)(12), Nov. 29, 1990, 104 Stat. 5050, 5083; Pub. L. 102–232, title III, § 306(a)(5), Dec. 12, 1991, 105 Stat. 1751; Pub. L. 104–208, div. C, title III, §§ 303(a), 371(b)(5), Sept. 30, 1996, 110 Stat. 3009–585, 3009–645.) Editorial Notes AMENDMENTS 1996—Pub. L. 104–208, § 303(a), amended section gen- erally. Prior to amendment, section consisted of sub- secs. (a) to (e) related to proceedings to determine whether aliens detained under section 1225 of this title should be allowed to enter or should be excluded and deported. Subsecs. (a) to (d). Pub. L. 104–208, § 371(b)(5), sub- stituted ‘‘An immigration judge’’ for ‘‘A special inquiry officer’’, ‘‘an immigration judge’’ for ‘‘a special inquiry officer’’, and ‘‘immigration judge’’ for ‘‘special inquiry officer’’, wherever appearing. 1991—Subsec. (e)(1). Pub. L. 102–232 substituted ‘‘upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense)’’ for ‘‘upon completion of the alien’s sentence for such conviction’’. 1990—Subsec. (d). Pub. L. 101–649, § 603(a)(12), sub- stituted ‘‘has a disease, illness, or addiction which would make the alien excludable under paragraph (1) of section 1182(a) of this title’’ for ‘‘is afflicted with a dis- ease specified in section 1182(a)(6) of this title, or with any mental disease, defect, or disability which would bring such alien within any of the classes excluded from admission to the United States under paragraphs (1) to (4) or (5) of section 1182(a) of this title’’ and struck out at end ‘‘If an alien is excluded by a special inquiry officer because of the existence of a physical disease, defect, or disability, other than one specified in section 1182(a)(6) of this title, the alien may appeal from the excluding decision in accordance with sub- section (b) of this section, and the provisions of section 1183 of this title may be invoked.’’ Subsec. (e). Pub. L. 101–649, § 504(b), added subsec. (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–208, div. C, title III, § 303(b), Sept. 30, 1996, 110 Stat. 3009–586, provided that: ‘‘(1) IN GENERAL.—The amendment made by sub- section (a) [amending this section] shall become effec- tive on the title III–A effective date [see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title]. ‘‘(2) NOTIFICATION REGARDING CUSTODY.—If the Attor- ney General, not later than 10 days after the date of the enactment of this Act [Sept. 30, 1996], notifies in writ- ing the Committees on the Judiciary of the House of Representatives and the Senate that there is insuffi- cient detention space and Immigration and Naturaliza- tion Service personnel available to carry out section 236(c) of the Immigration and Nationality Act [8 U.S.C. 1226(c)], as amended by subsection (a), or the amend- ments made by section 440(c) of Public Law 104–132 [amending section 1252 of this title], the provisions in paragraph (3) shall be in effect for a 1-year period be- ginning on the date of such notification, instead of such section or such amendments. [The Attorney Gen- eral so notified the committees on Oct. 9, 1996.] The At- torney General may extend such 1-year period for an additional year if the Attorney General provides the same notice not later than 10 days before the end of the first 1-year period. After the end of such 1-year or 2- year periods, the provisions of such section 236(c) shall apply to individuals released after such periods. ‘‘(3) TRANSITION PERIOD CUSTODY RULES.— ‘‘(A) IN GENERAL.—During the period in which this paragraph is in effect pursuant to paragraph (2), the Attorney General shall take into custody any alien who— ‘‘(i) has been convicted of an aggravated felony (as defined under section 101(a)(43) of the Immigra- tion and Nationality Act [8 U.S.C. 1101(a)(43)], as amended by section 321 of this division), ‘‘(ii) is inadmissible by reason of having com- mitted any offense covered in section 212(a)(2) of such Act [8 U.S.C. 1182(a)(2)], ‘‘(iii) is deportable by reason of having committed any offense covered in section 241(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of such Act [former 8 U.S.C. 1251(a)(2)(A)(ii), (A)(iii), (B), (C), (D)] (before redes- ignation under this subtitle), or ‘‘(iv) is inadmissible under section 212(a)(3)(B) of such Act or deportable under section 241(a)(4)(B) of such Act (before redesignation under this subtitle), when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same of- fense. ‘‘(B) RELEASE.—The Attorney General may release the alien only if the alien is an alien described in sub- paragraph (A)(ii) or (A)(iii) and— ‘‘(i) the alien was lawfully admitted to the United States and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding, or ‘‘(ii) the alien was not lawfully admitted to the United States, cannot be removed because the des- ignated country of removal will not accept the alien, and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.’’ Amendment by section 371(b)(5) of Pub. L. 104–208 ef- fective Sept. 30, 1996, see section 371(d)(1) of Pub. L. 104–208, set out as a note under section 1101 of this title. EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102–232 effective as if included in the enactment of the Immigration Act of 1990, Pub. L. 101–649, see section 310(1) of Pub. L. 102–232, set out as a note under section 1101 of this title. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by section 603(a)(12) of Pub. L. 101–649 ap- plicable to individuals entering United States on or after June 1, 1991, see section 601(e)(1) of Pub. L. 101–649, set out as a note under section 1101 of this title. ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONS For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title. IDENTIFICATION OF CERTAIN DEPORTABLE ALIENS AWAITING ARRAIGNMENT Pub. L. 105–141, Dec. 5, 1997, 111 Stat. 2647, provided that: Page 298 TITLE 8—ALIENS AND NATIONALITY § 1226a ‘‘SECTION 1. PROGRAM OF IDENTIFICATION OF CERTAIN DEPORTABLE ALIENS AWAITING AR- RAIGNMENT. ‘‘(a) ESTABLISHMENT OF PROGRAM.—Not later than 6 months after the date of the enactment of this Act [Dec. 5, 1997], and subject to such amounts as are pro- vided in appropriations Acts, the Attorney General shall establish and implement a program to identify, from among the individuals who are incarcerated in local governmental incarceration facilities prior to ar- raignment on criminal charges, those individuals who are within 1 or more of the following classes of deport- able aliens: ‘‘(1) Aliens unlawfully present in the United States. ‘‘(2) Aliens described in paragraph (2) or (4) of sec- tion 237(a) of the Immigration and Nationality Act [8 U.S.C. 1227(a)(2), (4)] (as redesignated by section 305(a)(2) of the Illegal Immigration Reform and Immi- grant Responsibility Act of 1996). ‘‘(b) DESCRIPTION OF PROGRAM.—The program author- ized by subsection (a) shall include— ‘‘(1) the detail, to each incarceration facility se- lected under subsection (c), of at least one employee of the Immigration and Naturalization Service who has expertise in the identification of aliens described in subsection (a); and ‘‘(2) provision of funds sufficient to provide for— ‘‘(A) the detail of such employees to each selected facility on a full-time basis, including the portions of the day or night when the greatest number of in- dividuals are incarcerated prior to arraignment; ‘‘(B) access for such employees to records of the Service and other Federal law enforcement agen- cies that are necessary to identify such aliens; and ‘‘(C) in the case of an individual identified as such an alien, pre-arraignment reporting to the court re- garding the Service’s intention to remove the alien from the United States. ‘‘(c) SELECTION OF FACILITIES.— ‘‘(1) IN GENERAL.—The Attorney General shall select for participation in the program each incarceration facility that satisfies the following requirements: ‘‘(A) The facility is owned by the government of a local political subdivision described in clause (i) or (ii) of subparagraph (C). ‘‘(B) Such government has submitted a request for such selection to the Attorney General. ‘‘(C) The facility is located— ‘‘(i) in a county that is determined by the At- torney General to have a high concentration of aliens described in subsection (a); or ‘‘(ii) in a city, town, or other analogous local political subdivision, that is determined by the Attorney General to have a high concentration of such aliens (but only in the case of a facility that is not located in a county). ‘‘(D) The facility incarcerates or processes indi- viduals prior to their arraignment on criminal charges. ‘‘(2) NUMBER OF QUALIFYING SUBDIVISIONS.—For any fiscal year, the total number of local political sub- divisions determined under clauses (i) and (ii) of para- graph (1)(C) to meet the standard in such clauses shall be the following: ‘‘(A) For fiscal year 1999, not less than 10 and not more than 25. ‘‘(B) For fiscal year 2000, not less than 25 and not more than 50. ‘‘(C) For fiscal year 2001, not more than 75. ‘‘(D) For fiscal year 2002, not more than 100. ‘‘(E) For fiscal year 2003 and subsequent fiscal years, 100, or such other number of political sub- divisions as may be specified in appropriations Acts. ‘‘(3) FACILITIES IN INTERIOR STATES.—For any fiscal year, of the local political subdivisions determined under clauses (i) and (ii) of paragraph (1)(C) to meet the standard in such clauses, not less than 20 percent shall be in States that are not contiguous to a land border. ‘‘(4) TREATMENT OF CERTAIN FACILITIES.—All of the incarceration facilities within the county of Orange, California, and the county of Ventura, California, that are owned by the government of a local political subdivision, and satisfy the requirements of para- graph (1)(D), shall be selected for participation in the program. ‘‘SEC. 2. STUDY AND REPORT. ‘‘Not later than 1 year after the date of the enact- ment of this Act [Dec. 5, 1997], the Attorney General shall complete a study, and submit a report to the Con- gress, concerning the logistical and technological feasi- bility of implementing the program under section 1 in a greater number of locations than those selected under such section through— ‘‘(1) the assignment of a single Immigration and Naturalization Service employee to more than 1 in- carceration facility; and ‘‘(2) the development of a system to permit the At- torney General to conduct off-site verification, by computer or other electronic means, of the immigra- tion status of individuals who are incarcerated in local governmental incarceration facilities prior to arraignment on criminal charges.’’ CRIMINAL ALIEN TRACKING CENTER Pub. L. 103–322, title XIII, § 130002, Sept. 13, 1994, 108 Stat. 2023, as amended by Pub. L. 104–132, title IV, § 432, Apr. 24, 1996, 110 Stat. 1273; Pub. L. 104–208, div. C, title III, §§ 308(g)(5)(B), 326, 327, Sept. 30, 1996, 110 Stat. 3009–623, 3009–630, provided that: ‘‘(a) OPERATION AND PURPOSE.—The Commissioner of Immigration and Naturalization shall, under the au- thority of section 236(d) of the Immigration and Na- tionality Act [8 U.S.C. 1226(d)] operate a criminal alien identification system. The criminal alien identification system shall be used to assist Federal, State, and local law enforcement agencies in identifying and locating aliens who may be subject to removal by reason of their conviction of aggravated felonies, subject to pros- ecution under section 275 of such Act [8 U.S.C. 1325], not lawfully present in the United States, or otherwise re- movable. Such system shall include providing for re- cording of fingerprint records of aliens who have been previously arrested and removed into appropriate auto- mated fingerprint identification systems. ‘‘(b) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to carry out this sec- tion— ‘‘(1) $3,400,000 for fiscal year 1996; and ‘‘(2) $5,000,000 for each of fiscal years 1997 through 2001.’’ § 1226a. Mandatory detention of suspected ter- rorists; habeas corpus; judicial review (a) Detention of terrorist aliens (1) Custody The Attorney General shall take into cus- tody any alien who is certified under para- graph (3). (2) Release Except as provided in paragraphs (5) and (6), the Attorney General shall maintain custody of such an alien until the alien is removed from the United States. Except as provided in paragraph (6), such custody shall be main- tained irrespective of any relief from removal for which the alien may be eligible, or any re- lief from removal granted the alien, until the Attorney General determines that the alien is no longer an alien who may be certified under paragraph (3). If the alien is finally deter- mined not to be removable, detention pursu- ant to this subsection shall terminate.