Detain or Release? Monitor or Not?

ice_arrests_photoIn connection with the Obama administration’s dismantling of the nation’s immigration law enforcement efforts, it is currently loosening the regulations for detention of apprehended illegal aliens. Aliens apprehended by the Border Patrol are routinely held for a short period while they are interviewed and their identity is established. Mexican illegal aliens are then returned to Mexico although they may first appear before a judge and be given an opportunity to ask for asylum.

Other than Mexicans (OTMs) are not sent home so quickly because travel by air is more complex and permission of the home country is required. That means they will be subject to detention at other facilities. Over time this has become a contentious issue because the illegal alien support groups demanded, inter alia, special facilities for detaining minors. That resulted in a problem with the surge of unaccompanied minors last year, and the government has opened two additional facilities as a result.

Congress made clear in 1996 (the Illegal Immigration Reform and Immigrant Responsibility Act) that all illegal aliens should be indefinitely detained until they are either found eligible for residence as asylees or are deported. This mandate was in response to a large surge of illegal aliens arriving by air and requesting asylum. At that time, they were being given work permits and released with an order to appear in court for a hearing on their claim far in the future. They were disappearing into the woodwork rather than appearing for the hearing. And, the detention mandate had the desired effect of stopping the surge of asylum claimants in its tracks.

That mandate was weakened by a federal court decision in 2001 (Zadvydas v. Davis) that held that the aliens could not be held indefinitely. That ruling meant that those whose cases were not heard by a judge within six months, and those whose countries refused to approve their return, had to be released. The court ruling was not absolute. It exempted from the mandatory release those aliens who are a threat to society. Current cases demonstrate, however, that even those who are a threat to society are also being released.

Nevertheless, the illegal alien advocacy groups have continued to push for speedier release of the detainees. Still early after the 1996 law was passed, the immigration authorities began to allow the release of aliens who had a family member or an organization that vouched that they would assure the alien’s appearance at the asylum hearing.

But, there continues to be a large share of released illegal aliens who fail to appear for the hearing on whether they will be deported or allowed to stay. To try to deal with this continuing problem, the authorities have begun requiring ankle monitors for those released. This is a fairly new development and its success is not yet established.

The illegal alien support groups are now attacking the ankle bracelets and, according to an August 2 Los Angeles Times account (“Immigrants object to growing use of ankle monitors after detention”), are demanding that the authorities stop using them. An activist argued that, “Electronic monitoring devices are best used for high-risk folks with criminal histories.” Others argued that, “that the government should shift from punishing to aiding asylum seekers.”

The newspaper would appear to support this logic since the article offered no contrary opinion or analysis. Yet, it is unimaginable that “high-risk folk with criminal histories” should be released under any circumstances. And, as a large majority of asylum claims result in a non-appearance or are found ineligible, it is absurd to treat illegal aliens claiming asylum as if they are entitled to that status.

About Author


Jack, who joined FAIR’s National Board of Advisors in 2017, is a retired U.S. diplomat with consular experience. He has testified before the U.S. Congress, U.S. Civil Rights Commission, and U.S. Commission on Immigration Reform and has authored studies of immigration issues. His national and international print, TV, and talk radio experience is extensive (including in Spanish).


  1. avatar
    Not Politically Correct on

    Why do we need to ask permission from their country to return them. Dump them on the door step!

  2. avatar

    If our government will not deport them immediately from crossing the border or after they have served their US prison for being convicted of commiting a felony an ankle bracelet may be the answer to make sure they show up for their current US right for a court hearing on their deportation instead of US Citizens paying for their medical, dental, psychological, schooling, food, clothing, housing, legal expenses, and related expenses. Currently illegal immigrants have more rights than US citizens and immigrants who are following the current US immigratrion laws and that is so wrong on so many levels in my mind. Wish our executive, legislature, and Representive branches of government would explain their actions to their constiutents, decide on a national language, and abolish the outdated anchor baby law.

  3. avatar

    this is what we get with this moran obummer that is why we need a real american president now we need to save america cant wait for this bum to leave.

  4. avatar

    I would ask all,of the presidential candidates one yes-no question. Will you fully enforce current immigration laws on the books? I will only accept a yes or a no!

  5. avatar

    Jeb Bush is now saying that we have to have a “secure border” before any amnesty. He’s like John McCain, who is a tough guy on illegal immigration in an election year, then goes back to being mr. amnesty. And among Bush’s proposals for a “secure” border are drones. Never mind the fact that strategy has already been employed and it’s been a massively expensive failure. Essentially Bush is just playing a con game.

    He also said: “The idea of self deportation, of rounding people up, is not an American value”. First of all, I thought obeying the law was an American value and I don’t know why we should let people stay who don’t bother with the law. Second., he’s trying to tie the issue of self deportation to “rounding people up”.

    The key word is “self”. Stop making it easy for them to obtain jobs, benefits and licenses and most will go on their own. Those who don’t want to leave can then be removed. I don’t know why expecting people, especially non citizens, to comply with the law is so controversial.