Mandatory Detention of Foreign Nationals Accused of Certain Crimes
Section 2 of the Laken Riley Act mandates the detention of foreign nationals who:
- Are inadmissible to the United States under any of the following legal provisions:
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- INA §212(a)(6)(A): renders inadmissible any foreign national who is present in the United States without having been admitted or paroled.
- INA §212(a)(6)(C): renders inadmissible any foreign national who (i) has procured any immigration benefit through fraud or willful misrepresentation, or (ii) has made a false claim of U.S. citizenship to obtain a state or federal benefit.
- INA §212(a)(7): renders inadmissible any foreign national who, at the time of application for admission, is not in possession of a valid entry document.
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- Are charged with, arrested for, convicted of, or have admitted to committing a crime, or the essential elements of a crime, including burglary, theft, larceny, shoplifting, assault of a law enforcement officer, or any crime resulting in death or serious bodily injury to another individual.
Upon enactment, the Laken Riley Act will require Immigration and Customs Enforcement (ICE) to detain any individual charged with any of the specified crimes, provided they are also deemed inadmissible under the relevant provisions of the Immigration and Nationality Act (INA).
While the determination of whether an individual is present in the U.S. without having been admitted is relatively straightforward, the application of the latter two grounds of inadmissibility introduces complexities. INA §212(a)(6)(C) holds inadmissible any individual who has ever made a false claim to U.S. citizenship in order to obtain any state or federal benefit. This could encompass those who register to vote on a driver’s license application or complete an I-9 form falsely indicating that they are U.S. citizens. Moreover, this section also applies to individuals who have obtained immigration benefits through fraudulent means or willful misrepresentation. In certain circumstances, individuals lawfully present in the U.S. might be deemed inadmissible under this ground while simultaneously possessing an approved waiver, allowing them to remain in the country despite their inadmissibility status. It remains unclear whether only individuals already determined inadmissible under this ground would be subject to mandatory detention upon being charged with a relevant crime, or if the Department of Homeland Security (DHS) is obliged to investigate potential inadmissibility for any foreign national arrested for a relevant offense.
The final inadmissibility ground, INA §212(a)(7), which renders individuals inadmissible for failing to possess a required entry document (such as a visa or passport) at the time of admission, presents significant interpretive challenges. This ground of inadmissibility is typically applied when an individual seeks entry into the United States; it is generally relevant solely at the port of entry. Notably, INA §212(a)(7) only pertains to expedited removal situations when applied to individuals already present within the United States. Furthermore, as individuals physically present in the U.S. without having been admitted or paroled are already subject to inadmissibility under INA §212(a)(6)(A), the inclusion of INA §212(a)(7) in the Laken Riley Act raises questions regarding its applicability and relevance.
It should be noted that waivers are not available to overcome inadmissibility under INA §212(a)(7); individuals may only address this ground of inadmissibility by reapplying and submitting the proper documentation.
Basically, this means that all persons who fall under these provisions MUST BE DETAINED (put in a jail or detention center). Prior to this being passed, non dangerous people were simply told to show up at a hearing or CBP and their passports were kept, but weren’t usually detained. This is a huge change that has occurred within the new administration.