DHS Secretary Janet Napolitano is tentatively scheduled to testify before the United States Senate Judiciary Committee about DHS immigration enforcement policies on May 6, 2009. Given Secretary Napolitano’s novel interpretations of federal law, the Heritage Foundation will be posting a series of questions (and suggested answers) for the Secretary. Past questions can be found here, here, here, here, here, and here.

Question # 7: Is the Obama Administration committed to the Detention and Removal Program?

The government used to “catch and release” illegal immigrants. When an illegal alien was caught, rather than being detained and deported, the person was released back into society with a scheduled court date before an immigration judge. No enforcement activity ensured that these illegal immigrants appeared in court, and not surprisingly, many did not appear for their hearings. This practice of catch and release reaffirmed the notion that illegal immigrants would not be deported, because even those unfortunate enough to be arrested were simply released later. Over the years, the number of absconders–those who received final removal orders and failed to leave– increased steadily from 331,734 ordered to leave in 2001 to 536,644 in 2005.

Detention and removal is conducted by the Office of Detention and Removal (DRO) in ICE. Arrested illegal immigrants are removed under several different processes. In 2006, DHS announced the end of catch and release at the southern border and implemented the “detention and removal” policy, in which those arrested while attempting to cross the border illegally are detained until they are returned to their points of origin. These detainees are returned home under expedited removal, which allows ICE to remove an illegal immigrant without administrative or judicial review. Under expedited removal, an alien is detained for an average of 19 days, significantly shorter than the traditional 90 days. El Salvadorans are exempt from expedited removal because of a court ruling 20 years ago during the El Salvador civil war.

Those arrested internally go through the traditional detention process or voluntary departure. Aliens who are arrested are sent to a detention center. If they are from Canada or Mexico, they have the option of leaving voluntarily and forgoing the formal deportation process. A large majority of deported aliens elect for voluntarily return. In 2007, there were 891,390 returns compared to the 319,382 removals. An alien who opts out of voluntary departure or is not from Canada or Mexico goes through the formal deportation process. The alien attends a court hearing before an immigration judge, who either issues a final deportation order or allows the alien to stay in the United States.

Since the end of catch and release, detained illegal immigrants stay at a detention center for the entire process, which can amount to 90 days. While at the detention center, a detainee receives an initial health check within the first 12 hours at the facility, followed by a health appraisal within the first 14 days. Those requiring medical attention receive treatment. The person is then removed from the United States. Criminal aliens who are arrested first go to jail and then are sent to a detention center for removal.

With the increase in worksite arrests, the growth of ICE ACCESS agreements with local jurisdictions and implementation of the detention and removal policy, the number of arrested aliens has multiplied. The process is far from perfect. ICE currently has eight detention centers with 32,000 beds, which can handle only a fraction of the 1 million illegal immigrants detained each year. In an effort to address the lack of capacity, ICE plans to add an additional 1,000 beds in 2009 and has used bed space at state, local, and private jails.

Because of Secretary Janet Napolitano recent policy change on workplace raids in which she gave illegal immigrants Employment Authorization Documents (EAD) (i.e, work permits) to stay and work, there is real concern that she has deviated from detention and release policy and functionally returned to the catch and release policy. This would not be the right path—detention and release should continue.

For Heritage research on “detention and removal,” as well as more information on border security, check out, Safeguarding America’s Sovereignty: A “System of Systems” Approach to Border Security.