8 U.S.C. § 1226a — Mandatory detention of suspected ter-

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. Page 299 TITLE 8—ALIENS AND NATIONALITY § 1226a (3) Certification The Attorney General may certify an alien under this paragraph if the Attorney General has reasonable grounds to believe that the alien— (A) is described in section 1182(a)(3)(A)(i), 1182(a)(3)(A)(iii), 1182(a)(3)(B), 1227(a)(4)(A)(i), 1227(a)(4)(A)(iii), or 1227(a)(4)(B) of this title; or (B) is engaged in any other activity that endangers the national security of the United States. (4) Nondelegation The Attorney General may delegate the au- thority provided under paragraph (3) only to the Deputy Attorney General. The Deputy At- torney General may not delegate such author- ity. (5) Commencement of proceedings The Attorney General shall place an alien detained under paragraph (1) in removal pro- ceedings, or shall charge the alien with a criminal offense, not later than 7 days after the commencement of such detention. If the requirement of the preceding sentence is not satisfied, the Attorney General shall release the alien. (6) Limitation on indefinite detention An alien detained solely under paragraph (1) who has not been removed under section 1231(a)(1)(A) of this title, and whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person. (7) Review of certification The Attorney General shall review the cer- tification made under paragraph (3) every 6 months. If the Attorney General determines, in the Attorney General’s discretion, that the certification should be revoked, the alien may be released on such conditions as the Attorney General deems appropriate, unless such re- lease is otherwise prohibited by law. The alien may request each 6 months in writing that the Attorney General reconsider the certification and may submit documents or other evidence in support of that request. (b) Habeas corpus and judicial review (1) In general Judicial review of any action or decision re- lating to this section (including judicial re- view of the merits of a determination made under subsection (a)(3) or (a)(6)) is available exclusively in habeas corpus proceedings con- sistent with this subsection. Except as pro- vided in the preceding sentence, no court shall have jurisdiction to review, by habeas corpus petition or otherwise, any such action or deci- sion. (2) Application (A) In general Notwithstanding any other provision of law, including section 2241(a) of title 28, ha- beas corpus proceedings described in para- graph (1) may be initiated only by an appli- cation filed with— (i) the Supreme Court; (ii) any justice of the Supreme Court; (iii) any circuit judge of the United States Court of Appeals for the District of Columbia Circuit; or (iv) any district court otherwise having jurisdiction to entertain it. (B) Application transfer Section 2241(b) of title 28 shall apply to an application for a writ of habeas corpus de- scribed in subparagraph (A). (3) Appeals Notwithstanding any other provision of law, including section 2253 of title 28, in habeas cor- pus proceedings described in paragraph (1) be- fore a circuit or district judge, the final order shall be subject to review, on appeal, by the United States Court of Appeals for the District of Columbia Circuit. There shall be no right of appeal in such proceedings to any other cir- cuit court of appeals. (4) Rule of decision The law applied by the Supreme Court and the United States Court of Appeals for the Dis- trict of Columbia Circuit shall be regarded as the rule of decision in habeas corpus pro- ceedings described in paragraph (1). (c) Statutory construction The provisions of this section shall not be ap- plicable to any other provision of this chapter. (June 27, 1952, ch. 477, title II, ch. 4, § 236A, as added Pub. L. 107–56, title IV, § 412(a), Oct. 26, 2001, 115 Stat. 350.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (c), was in the original, ‘‘this Act’’, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of this title and Tables. Statutory Notes and Related Subsidiaries 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. REPORTS Pub. L. 107–56, title IV, § 412(c), Oct. 26, 2001, 115 Stat. 352, provided that: ‘‘Not later than 6 months after the date of the enactment of this Act [Oct. 26, 2001], and every 6 months thereafter, the Attorney General shall submit a report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, with respect to the reporting period, on— ‘‘(1) the number of aliens certified under section 236A(a)(3) of the Immigration and Nationality Act [8 U.S.C. 1226a(a)(3)], as added by subsection (a); ‘‘(2) the grounds for such certifications; ‘‘(3) the nationalities of the aliens so certified; Page 300 TITLE 8—ALIENS AND NATIONALITY § 1227 ‘‘(4) the length of the detention for each alien so certified; and ‘‘(5) the number of aliens so certified who— ‘‘(A) were granted any form of relief from re- moval; ‘‘(B) were removed; ‘‘(C) the Attorney General has determined are no longer aliens who may be so certified; or ‘‘(D) were released from detention.’’ § 1227. Deportable aliens (a) Classes of deportable aliens Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: (1) Inadmissible at time of entry or of adjust- ment of status or violates status (A) Inadmissible aliens Any alien who at the time of entry or ad- justment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable. (B) Present in violation of law Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201(i) of this title, is deport- able. (C) Violated nonimmigrant status or condi- tion of entry (i) Nonimmigrant status violators Any alien who was admitted as a non- immigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 1258 of this title, or to comply with the conditions of any such status, is deportable. (ii) Violators of conditions of entry Any alien whom the Secretary of Health and Human Services certifies has failed to comply with terms, conditions, and con- trols that were imposed under section 1182(g) of this title is deportable. (D) Termination of conditional permanent residence (i) In general Any alien with permanent resident sta- tus on a conditional basis under section 1186a of this title (relating to conditional permanent resident status for certain alien spouses and sons and daughters) or under section 1186b of this title (relating to conditional permanent resident status for certain alien entrepreneurs, spouses, and children) who has had such status ter- minated under such respective section is deportable. (ii) Exception Clause (i) shall not apply in the cases de- scribed in section 1186a(c)(4) of this title (relating to certain hardship waivers). (E) Smuggling (i) In general Any alien who (prior to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is deportable. (ii) Special rule in the case of family reuni- fication Clause (i) shall not apply in the case of alien who is an eligible immigrant (as de- fined in section 301(b)(1) of the Immigra- tion Act of 1990), was physically present in the United States on May 5, 1988, and is seeking admission as an immediate rel- ative or under section 1153(a)(2) of this title (including under section 112 of the Immigration Act of 1990) or benefits under section 301(a) of the Immigration Act of 1990 if the alien, before May 5, 1988, has en- couraged, induced, assisted, abetted, or aided only the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law. (iii) Waiver authorized The Attorney General may, in his discre- tion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) in the case of any alien lawfully admitted for permanent residence if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law. (F) Repealed. Pub. L. 104–208, div. C, title VI, § 671(d)(1)(C), Sept. 30, 1996, 110 Stat. 3009–723 (G) Marriage fraud An alien shall be considered to be deport- able as having procured a visa or other docu- mentation by fraud (within the meaning of section 1182(a)(6)(C)(i) of this title) and to be in the United States in violation of this chapter (within the meaning of subpara- graph (B)) if— (i) the alien obtains any admission into the United States with an immigrant visa or other documentation procured on the basis of a marriage entered into less than 2 years prior to such admission of the alien and which, within 2 years subsequent to any admission of the alien in the United States, shall be judicially annulled or ter- minated, unless the alien establishes to the satisfaction of the Attorney General that such marriage was not contracted for the purpose of evading any provisions of the immigration laws, or (ii) it appears to the satisfaction of the Attorney General that the alien has failed or refused to fulfill the alien’s marital agreement which in the opinion of the At- torney General was made for the purpose