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24 San Diego L. Rev. 305 (1987)
Detention of Aliens

handle is hein.journals/sanlr24 and id is 311 raw text is: Detention of Aliens

Detention of aliens has become a controversial issue in the debate
over immigration policy. This Article examines general principles
relating to detention of aliens in exclusion and deportation situa-
tions. It also surveys the legal issues in noteworthy areas of the
detention controversy. Finally, the Article explores how the Immi-
gration and Naturalization Service can most effectively utilize de-
tention in the future.
The authority to arrest and detain aliens for civil law violations
makes the Immigration and Naturalization Service (INS) unique
among federal law enforcement agencies. While a number of federal
agencies have the authority to impose various civil penalties upon
individuals, such as fines, forfeitures, and loss of licenses, the INS
stands alone in its authority to incarcerate individuals who neither
have been charged with, nor have been convicted of, crimes. It is not
surprising that the use of this authority by the INS has become the
subject of controversy and a substantial amount of litigation. Never-
theless, the authority of the government to detain aliens in connec-
tion with the enforcement of the immigration laws is well estab-
* Acting General Counsel, Immigration and Naturalization Service, United
States Department of Justice. B.A. 1970, Lawrence University; J.D. 1973, University of
Wisconsin Law School. Mr. Schmidt has been the Deputy General Counsel since 1978,
and also has served as the Acting General Counsel of the INS during the period 1979-
1981. Prior to joining the INS in 1976, Mr. Schmidt served as an attorney adviser with
the Board of Immigration Appeals.
This Article is an expansion and elaboration upon remarks made by Mr. Schmidt
before the Center for Migration Studies in Washington, D.C. on March 21, 1986. The
views expressed in this Article are Mr. Schmidt's own and do not necessarily represent
the official position of the INS, the Department of Justice, or any other government

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