Detention/Mandatory Detention

Mandatory detention is the practice of imprisoning an individual under specified circumstances, without regard to whether doing so is necessary or appropriate in the individual case.  U.S. immigration law subjects various categories of noncitizens to mandatory detention, including certain asylum seekers; certain noncitizens subject to a final order of removal; and noncitizens who are deportable because of certain criminal activity–a category that includes even long-time green card holders convicted of relatively minor drug or theft offenses.  Most immigrants detained in the United States are mandatorily detained, more than 200,000 immigrants are subjected to mandatory detention every year (pre-pandemic), and many are detained for prolonged periods. 

Notwithstanding the outsized role mandatory detention already plays in the U.S. immigration system–and the significant costs it imposes on detained immigrants, their family, and U.S. taxpayers–a common theme in lawsuits brought against the Biden Administration is that the particular challenged policy conflicts with one or more mandatory detention provisions, by not enforcing it how those bringing suit would prefer.