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Copyright (c) 2005 Howard University
Howard Law Journal

NOTE & COMMENT: In the Name of Fear: The Mandatory Detention of Criminal Aliens and Demore v. Kim

Spring, 2005

48 How. L.J. 999


Alexis D. Hedman*


The Immigration and Naturalization Service (INS) detains approximately 20 thousand aliens with pending immigration cases in over 900 facilities across the country. 2 For many aliens in INS custody, the duration of detention extends far beyond a few months, or even a year, in conditions "'often worse than those faced by convicted prisoners.'" 3 Although this type of detention has received recent recognition, there has been a growing trend since the latter half of the 1980s in requiring the detention of certain aliens prior to the commencement of deportation proceedings. This shift was initiated when Congress passed drastic amendments to existing immigration laws after evidence was produced that "once released, more than twenty percent of deportable criminal aliens failed to appear for their removal hearings." 4 Subsequently, Congress suggested that the mandatory detention of criminal aliens during their removal proceedings could serve as the most effective solution to ensure their successful removal from the United States. 5

To further substantiate the need for mandatory detentions, Congress turned to evidence tending to show that one of the major causes of the INS's failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings. 6 Soon these concerns, as they were supported by statistical data, formed the foundation of 8 U.S.C. 1226. 7 This Statute requires the Attorney General to detain, without bail, a subset of deportable criminal aliens pending a determination of their removability. 8

Hyung Joon Kim, a ...
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