Which INA provisions create mandatory detention categories and how have courts interpreted them?
Executive summary
Three principal INA provisions create mandatory detention categories: §236(c) for certain criminal/terror-related noncitizens, §241(a) for the statutory removal period (with categorical bars for some criminal/terror grounds), and §235(b) as the inspection/arrival detention authority the government invokes at the border; courts have largely upheld the government's broad detention powers while carving out limits through habeas review and statutory construction in precedents such as Demore, Preap, Clark/Zavydas, Jennings/Rodriguez, and more recent decisions about §235(b)’s scope [1] [2] [3] [4] [5].
1. The statutory map — where “shall” creates mandatory custody
The INA sets multiple detention regimes: §236(a) authorizes discretionary detention for those arrested in the interior, §236(c) commands that DHS “shall take into custody any alien” falling within enumerated criminal or terrorism grounds “when the alien is released” from criminal custody, §241(a) directs that DHS “shall detain” certain aliens during the 90‑day removal period and bars release for specified criminal/terror grounds, and §235(b) governs detention at the point of entry or inspection; each uses language that the government reads as mandatory in distinct factual situations [1] [4] [6].
2. §236(c): mandatory detention for criminal/terror grounds and the Supreme Court’s narrowing of timing claims
The Supreme Court has affirmed that §236(c) creates a mandatory-detention regime for noncitizens who fit the statute’s enumerated criminal or terrorism-related descriptions, and in Demore the Court held such detention constitutionally permissible for the brief period needed for removal proceedings [2]. In Nielsen v. Preap the Court rejected a temporal limit advocated by some circuits and held that §236(c) applies even when DHS arrests the noncitizen long after release from criminal custody, though the Court left open as-applied constitutional challenges [1] [7]. Practitioners therefore litigate whether the government has properly placed someone within the statute’s enumerated subparagraphs and raise Joseph hearings and habeas petitions to challenge miscategorization [8] [7].
3. §241(a): detention during the removal period and the evolving bond-question jurisprudence
INA §241(a) instructs DHS to detain aliens during the 90‑day removal period and explicitly bars release in some criminal/terror circumstances, which courts read alongside decisions like Clark v. Martinez and Zavydas to imply temporal reasonableness limits for long-term detention; yet the Supreme Court later held that §241(a) does not itself guarantee periodic bond hearings for detainees under that provision, leaving constitutional questions about prolonged detention subject to further litigation [4] [1] [9].
4. §235(b) at the border — statutory text, agency re-interpretations, and split courts
The government increasingly cites §235(b) to detain noncitizens encountered without admission, but recent administrative shifts and Board of Immigration Appeals decisions (and a flurry of litigation) have produced conflicting signals: federal district courts have commonly concluded that many interior apprehensions of previously unadmitted noncitizens fall under §236 rather than §235(b), while agency moves to expand §235(b) have been widely challenged and described as an effort to sweep more people into mandatory arrival-detention rules [5] [10] [6].
5. Judicial review, habeas, and the practical limits on “no-review” provisions
Although certain INA provisions contain language limiting judicial review of detention or bond decisions, the Supreme Court has recognized that such statutory limitations do not necessarily foreclose habeas corpus review and that courts retain power to address statutory and constitutional claims; accordingly, practitioners continue to use habeas petitions to challenge both statutory misclassification under §236(c) and prolonged detention under §241(a), even as courts give deference to the political branches on immigration custody [4] [1] [11].
6. Litigation trends, policy shifts, and stakes on the ground
Recent statutory and administrative developments—such as legislative proposals and agency reinterpretations that seek to expand §236(c) and §235(b) coverage (noted in practice advisories like the Laken Riley Act briefings)—have predictably produced two track litigation: courts resisting expansive agency readings and defending limits rooted in statutory structure and habeas precedent, and advocates pressing as-applied constitutional challenges to prolonged or misapplied mandatory detention; the net effect is persistent uncertainty for counsel and detainees about whether a given custody placement is truly mandatory or legally challengeable [12] [5] [8].