8 Usc 1226

§ 1226

TITLE 8—ALIENS AND NATIONALITY

references, see note set out under section 1551 of this
title.
EXCHANGE OF TERRORIST INFORMATION AND INCREASED
PREINSPECTION AT FOREIGN AIRPORTS
Pub. L. 108–458, title VII, § 7210(a), (b), Dec. 17, 2004,
118 Stat. 3824, provided that:
‘‘(a) FINDINGS.—Consistent with the report of the National Commission on Terrorist Attacks Upon the
United States, Congress makes the following findings:
‘‘(1) The exchange of terrorist information with
other countries, consistent with privacy requirements, along with listings of lost and stolen passports, will have immediate security benefits.
‘‘(2) The further away from the borders of the
United States that screening occurs, the more security benefits the United States will gain.
‘‘(b) SENSE OF CONGRESS.—It is the sense of Congress
that—
‘‘(1) the Federal Government should exchange terrorist information with trusted allies;
‘‘(2) the Federal Government should move toward
real-time verification of passports with issuing authorities;
‘‘(3) where practicable, the Federal Government
should conduct screening before a passenger departs
on a flight destined for the United States;
‘‘(4) the Federal Government should work with
other countries to ensure effective inspection regimes
at all airports;
‘‘(5) the Federal Government should work with
other countries to improve passport standards and
provide foreign assistance to countries that need help
making the transition to the global standard for
identification; and
‘‘(6) the Department of Homeland Security, in coordination with the Department of State and other
Federal agencies, should implement the initiatives
called for in this subsection.’’

§ 1226. Apprehension and detention of aliens
(a) Arrest, detention, and release
On a warrant issued by the Attorney General,
an alien may be arrested and detained pending a
decision on whether the alien is to be removed
from the United States. Except as provided in
subsection (c) of this section and pending such
decision, the Attorney General—
(1) may continue to detain the arrested
alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work authorization (including an ‘‘employment authorized’’ endorsement or other appropriate
work permit), unless the alien is lawfully admitted for permanent residence or otherwise
would (without regard to removal proceedings)
be provided such authorization.
(b) Revocation of bond or parole
The Attorney General at any time may revoke
a bond or parole authorized under subsection (a)
of this section, rearrest the alien under the
original warrant, and detain the alien.
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having
committed any offense covered in section
1182(a)(2) of this title,

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(B) is deportable by reason of having committed any offense covered in section
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of
this title,
(C)
is
deportable
under
section
1227(a)(2)(A)(i) of this title on the basis of an
offense for which the alien has been sentence 1 to a term of imprisonment of at least
1 year, or
(D)
is
inadmissible
under
section
1182(a)(3)(B) of this title or deportable under
section 1227(a)(4)(B) of this title,
when the alien is released, without regard to
whether the alien is released on parole, supervised release, or probation, and without regard
to whether the alien may be arrested or imprisoned again for the same offense.
(2) Release
The Attorney General may release an alien
described in paragraph (1) only if the Attorney
General decides pursuant to section 3521 of
title 18 that release of the alien from custody
is necessary to provide protection to a witness, a potential witness, a person cooperating
with an investigation into major criminal activity, or an immediate family member or
close associate of a witness, potential witness,
or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to
the safety of other persons or of property and
is likely to appear for any scheduled proceeding. A decision relating to such release shall
take place in accordance with a procedure
that considers the severity of the offense committed by the alien.
(d) Identification of criminal aliens
(1) The Attorney General shall devise and implement a system—
(A) to make available, daily (on a 24-hour
basis), to Federal, State, and local authorities
the investigative resources of the Service to
determine whether individuals arrested by
such authorities for aggravated felonies are
aliens;
(B) to designate and train officers and employees of the Service to serve as a liaison to
Federal, State, and local law enforcement and
correctional agencies and courts with respect
to the arrest, conviction, and release of any
alien charged with an aggravated felony; and
(C) which uses computer resources to maintain a current record of aliens who have been
convicted of an aggravated felony, and indicates those who have been removed.
(2) The record under paragraph (1)(C) shall be
made available—
(A) to inspectors at ports of entry and to
border patrol agents at sector headquarters for
purposes of immediate identification of any
alien who was previously ordered removed and
is seeking to reenter the United States, and
(B) to officials of the Department of State
for use in its automated visa lookout system.
(3) Upon the request of the governor or chief
executive officer of any State, the Service shall
1 So

in original. Probably should be ‘‘sentenced’’.

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TITLE 8—ALIENS AND NATIONALITY

provide assistance to State courts in the identification of aliens unlawfully present in the
United States pending criminal prosecution.
(e) Judicial review
The Attorney General’s discretionary judgment regarding the application of this section
shall not be subject to review. No court may set
aside any action or decision by the Attorney
General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.
(June 27, 1952, ch. 477, title II, ch. 4, § 236, 66 Stat.
200; Pub. L. 101–649, title V, § 504(b), title VI,
§ 603(a)(12), Nov. 29, 1990, 104 Stat. 5050, 5083; Pub.
L. 102–232, title III, § 306(a)(5), Dec. 12, 1991, 105
Stat. 1751; Pub. L. 104–208, div. C, title III,
§§ 303(a), 371(b)(5), Sept. 30, 1996, 110 Stat.
3009–585, 3009–645.)
AMENDMENTS
1996—Pub. L. 104–208, § 303(a), amended section generally. Prior to amendment, section consisted of subsecs.
(a) to (e) related to proceedings to determine whether
aliens detained under section 1225 of this title should be
allowed to enter or should be excluded and deported.
Subsecs. (a) to (d). Pub. L. 104–208, § 371(b)(5), substituted ‘‘An immigration judge’’ for ‘‘A special inquiry
officer’’, ‘‘an immigration judge’’ for ‘‘a special inquiry
officer’’, and ‘‘immigration judge’’ for ‘‘special inquiry
officer’’, wherever appearing.
1991—Subsec. (e)(1). Pub. L. 102–232 substituted ‘‘upon
release of the alien (regardless of whether or not such
release is on parole, supervised release, or probation,
and regardless of the possibility of rearrest or further
confinement in respect of the same offense)’’ for ‘‘upon
completion of the alien’s sentence for such conviction’’.
1990—Subsec. (d). Pub. L. 101–649, § 603(a)(12), substituted ‘‘has a disease, illness, or addiction which
would make the alien excludable under paragraph (1) of
section 1182(a) of this title’’ for ‘‘is afflicted with a disease specified in section 1182(a)(6) of this title, or with
any mental disease, defect, or disability which would
bring such alien within any of the classes excluded
from admission to the United States under paragraphs
(1) to (4) or (5) of section 1182(a) of this title’’ and
struck out at end ‘‘If an alien is excluded by a special
inquiry officer because of the existence of a physical
disease, defect, or disability, other than one specified
in section 1182(a)(6) of this title, the alien may appeal
from the excluding decision in accordance with subsection (b) of this section, and the provisions of section
1183 of this title may be invoked.’’
Subsec. (e). Pub. L. 101–649, § 504(b), added subsec. (e).
EFFECTIVE DATE OF 1996 AMENDMENT
Section 303(b) of subtitle A of title III of div. C of
Pub. L. 104–208 provided that:
‘‘(1) IN GENERAL.—The amendment made by subsection (a) [amending this section] shall become effective on the title III–A effective date [see section 309 of
Pub. L. 104–208, set out as a note under section 1101 of
this title].
‘‘(2) NOTIFICATION REGARDING CUSTODY.—If the Attorney General, not later than 10 days after the date of the
enactment of this Act [Sept. 30, 1996], notifies in writing the Committees on the Judiciary of the House of
Representatives and the Senate that there is insufficient detention space and Immigration and Naturalization Service personnel available to carry out section
236(c) of the Immigration and Nationality Act [8 U.S.C.
1226(c)], as amended by subsection (a), or the amendments made by section 440(c) of Public Law 104–132
[amending section 1252 of this title], the provisions in
paragraph (3) shall be in effect for a 1-year period beginning on the date of such notification, instead of
such section or such amendments. [The Attorney Gen-

§ 1226

eral so notified the committees on Oct. 9, 1996.] The Attorney General may extend such 1-year period for an
additional year if the Attorney General provides the
same notice not later than 10 days before the end of the
first 1-year period. After the end of such 1-year or 2year periods, the provisions of such section 236(c) shall
apply to individuals released after such periods.
‘‘(3) TRANSITION PERIOD CUSTODY RULES.—
‘‘(A) IN GENERAL.—During the period in which this
paragraph is in effect pursuant to paragraph (2), the
Attorney General shall take into custody any alien
who—
‘‘(i) has been convicted of an aggravated felony
(as defined under section 101(a)(43) of the Immigration and Nationality Act [8 U.S.C. 1101(a)(43)], as
amended by section 321 of this division),
‘‘(ii) is inadmissible by reason of having committed any offense covered in section 212(a)(2) of such
Act [8 U.S.C. 1182(a)(2)],
‘‘(iii) is deportable by reason of having committed
any offense covered in section 241(a)(2)(A)(ii),
(A)(iii), (B), (C), or (D) of such Act [former 8 U.S.C.
1251(a)(2)(A)(ii), (A)(iii), (B), (C), (D)] (before redesignation under this subtitle), or
‘‘(iv) is inadmissible under section 212(a)(3)(B) of
such Act or deportable under section 241(a)(4)(B) of
such Act (before redesignation under this subtitle),
when the alien is released, without regard to whether
the alien is released on parole, supervised release, or
probation, and without regard to whether the alien
may be arrested or imprisoned again for the same offense.
‘‘(B) RELEASE.—The Attorney General may release
the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii) and—
‘‘(i) the alien was lawfully admitted to the United
States and satisfies the Attorney General that the
alien will not pose a danger to the safety of other
persons or of property and is likely to appear for
any scheduled proceeding, or
‘‘(ii) the alien was not lawfully admitted to the
United States, cannot be removed because the designated country of removal will not accept the
alien, and satisfies the Attorney General that the
alien will not pose a danger to the safety of other
persons or of property and is likely to appear for
any scheduled proceeding.’’
Amendment by section 371(b)(5) of Pub. L. 104–208 effective Sept. 30, 1996, see section 371(d)(1) of Pub. L.
104–208, set out as a note under section 1101 of this title.
EFFECTIVE DATE OF 1991 AMENDMENT
Amendment by Pub. L. 102–232 effective as if included
in the enactment of the Immigration Act of 1990, Pub.
L. 101–649, see section 310(1) of Pub. L. 102–232, set out
as a note under section 1101 of this title.
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by section 603(a)(12) of Pub. L. 101–649 applicable to individuals entering United States on or
after June 1, 1991, see section 601(e)(1) of Pub. L. 101–649,
set out as a note under section 1101 of this title.
ABOLITION OF IMMIGRATION AND NATURALIZATION
SERVICE AND TRANSFER OF FUNCTIONS
For abolition of Immigration and Naturalization
Service, transfer of functions, and treatment of related
references, see note set out under section 1551 of this
title.
IDENTIFICATION OF CERTAIN DEPORTABLE ALIENS
AWAITING ARRAIGNMENT
Pub. L. 105–141, Dec. 5, 1997, 111 Stat. 2647, provided
that:
‘‘SECTION 1. PROGRAM OF IDENTIFICATION OF
CERTAIN DEPORTABLE ALIENS AWAITING ARRAIGNMENT.
‘‘(a) ESTABLISHMENT OF PROGRAM.—Not later than 6
months after the date of the enactment of this Act

§ 1226a

TITLE 8—ALIENS AND NATIONALITY

[Dec. 5, 1997], and subject to such amounts as are provided in appropriations Acts, the Attorney General
shall establish and implement a program to identify,
from among the individuals who are incarcerated in
local governmental incarceration facilities prior to arraignment on criminal charges, those individuals who
are within 1 or more of the following classes of deportable aliens:
‘‘(1) Aliens unlawfully present in the United States.
‘‘(2) Aliens described in paragraph (2) or (4) of section 237(a) of the Immigration and Nationality Act [8
U.S.C. 1227(a)(2), (4)] (as redesignated by section
305(a)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996).
‘‘(b) DESCRIPTION OF PROGRAM.—The program authorized by subsection (a) shall include—
‘‘(1) the detail, to each incarceration facility selected under subsection (c), of at least one employee
of the Immigration and Naturalization Service who
has expertise in the identification of aliens described
in subsection (a); and
‘‘(2) provision of funds sufficient to provide for—
‘‘(A) the detail of such employees to each selected
facility on a full-time basis, including the portions
of the day or night when the greatest number of individuals are incarcerated prior to arraignment;
‘‘(B) access for such employees to records of the
Service and other Federal law enforcement agencies that are necessary to identify such aliens; and
‘‘(C) in the case of an individual identified as such
an alien, pre-arraignment reporting to the court regarding the Service’s intention to remove the alien
from the United States.
‘‘(c) SELECTION OF FACILITIES.—
‘‘(1) IN GENERAL.—The Attorney General shall select
for participation in the program each incarceration
facility that satisfies the following requirements:
‘‘(A) The facility is owned by the government of
a local political subdivision described in clause (i)
or (ii) of subparagraph (C).
‘‘(B) Such government has submitted a request
for such selection to the Attorney General.
‘‘(C) The facility is located—
‘‘(i) in a county that is determined by the Attorney General to have a high concentration of
aliens described in subsection (a); or
‘‘(ii) in a city, town, or other analogous local
political subdivision, that is determined by the
Attorney General to have a high concentration of
such aliens (but only in the case of a facility that
is not located in a county).
‘‘(D) The facility incarcerates or processes individuals prior to their arraignment on criminal
charges.
‘‘(2) NUMBER OF QUALIFYING SUBDIVISIONS.—For any
fiscal year, the total number of local political subdivisions determined under clauses (i) and (ii) of paragraph (1)(C) to meet the standard in such clauses
shall be the following:
‘‘(A) For fiscal year 1999, not less than 10 and not
more than 25.
‘‘(B) For fiscal year 2000, not less than 25 and not
more than 50.
‘‘(C) For fiscal year 2001, not more than 75.
‘‘(D) For fiscal year 2002, not more than 100.
‘‘(E) For fiscal year 2003 and subsequent fiscal
years, 100, or such other number of political subdivisions as may be specified in appropriations
Acts.
‘‘(3) FACILITIES IN INTERIOR STATES.—For any fiscal
year, of the local political subdivisions determined
under clauses (i) and (ii) of paragraph (1)(C) to meet
the standard in such clauses, not less than 20 percent
shall be in States that are not contiguous to a land
border.
‘‘(4) TREATMENT OF CERTAIN FACILITIES.—All of the
incarceration facilities within the county of Orange,
California, and the county of Ventura, California,
that are owned by the government of a local political
subdivision, and satisfy the requirements of para-

Page 248

graph (1)(D), shall be selected for participation in the
program.
‘‘SEC. 2. STUDY AND REPORT.
‘‘Not later than 1 year after the date of the enactment of this Act [Dec. 5, 1997], the Attorney General
shall complete a study, and submit a report to the Congress, concerning the logistical and technological feasibility of implementing the program under section 1 in
a greater number of locations than those selected under
such section through—
‘‘(1) the assignment of a single Immigration and
Naturalization Service employee to more than 1 incarceration facility; and
‘‘(2) the development of a system to permit the Attorney General to conduct off-site verification, by
computer or other electronic means, of the immigration status of individuals who are incarcerated in
local governmental incarceration facilities prior to
arraignment on criminal charges.’’
CRIMINAL ALIEN TRACKING CENTER
Section 130002 of Pub. L. 103–322, as amended by Pub.
L. 104–132, title IV, § 432, Apr. 24, 1996, 110 Stat. 1273;
Pub. L. 104–208, div. C, title III, §§ 308(g)(5)(B), 326, 327,
Sept. 30, 1996, 110 Stat. 3009–623, 3009–630, provided that:
‘‘(a) OPERATION AND PURPOSE.—The Commissioner of
Immigration and Naturalization shall, under the authority of section 236(d) of the Immigration and Nationality Act [8 U.S.C. 1226(d)] operate a criminal alien
identification system. The criminal alien identification
system shall be used to assist Federal, State, and local
law enforcement agencies in identifying and locating
aliens who may be subject to removal by reason of
their conviction of aggravated felonies, subject to prosecution under section 275 of such Act [8 U.S.C. 1325], not
lawfully present in the United States, or otherwise removable. Such system shall include providing for recording of fingerprint records of aliens who have been
previously arrested and removed into appropriate automated fingerprint identification systems.
‘‘(b) AUTHORIZATION OF APPROPRIATIONS.—There are
authorized to be appropriated to carry out this section—
‘‘(1) $3,400,000 for fiscal year 1996; and
‘‘(2) $5,000,000 for each of fiscal years 1997 through
2001.’’

§ 1226a. Mandatory detention of suspected terrorists; habeas corpus; judicial review
(a) Detention of terrorist aliens
(1) Custody
The Attorney General shall take into custody any alien who is certified under paragraph (3).
(2) Release
Except as provided in paragraphs (5) and (6),
the Attorney General shall maintain custody
of such an alien until the alien is removed
from the United States. Except as provided in
paragraph (6), such custody shall be maintained irrespective of any relief from removal
for which the alien may be eligible, or any relief from removal granted the alien, until the
Attorney General determines that the alien is
no longer an alien who may be certified under
paragraph (3). If the alien is finally determined not to be removable, detention pursuant to this subsection shall terminate.
(3) Certification
The Attorney General may certify an alien
under this paragraph if the Attorney General
has reasonable grounds to believe that the
alien—