Washington International Law Journal


Jana M. Seng


Currently the U.S. Immigration and Naturalization Service ("INS") is indefinitely detaining thousands of aliens who have already completed their criminal sentences. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") allows the INS to detain these convicted aliens while initiating a removal proceeding for deportation to their native country. Absent from the IIRIRA is a provision addressing whether the INS may indefinitely detain convicted aliens who cannot be deported because the United States has no repatriation agreement with the alien's native country. Justification for the indefinite detention rests on the assumption that the United States will secure a repatriation agreement in the near future. However, an analysis of Cambodia's methods for determining citizenship and the lack of uniformity in international "proof of nationality" law demonstrates that a repatriation agreement is not likely to occur. For this reason, the U.S. Supreme Court should preclude the INS' practice of indefinite detention and require an immediate release of indefinite detainees after they have served their sentence where the native country has no repatriation agreement with the United States and has not shown a willingness to accept the detainees' return.

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