In light of the significant constitutional issues presented by such detention, 8 USC § 1226(c) should be read not to authorize the mandatory detention of individuals who have a substantial challenge to deportability or inadmissibility. It should also be read to require the opportunity for a constitutionally adequate hearing to determine whether an individual is properly subject to mandatory detention. This hearing should include adequate notice; require that the government bear the burden of establishing prima facie deportability or inadmissibility on a ground that triggers mandatory detention; provide the detainee the opportunity to demonstrate that he has a substantial challenge to deportability or inadmissibility on those grounds; and require that a contemporaneous record of proceedings be made and maintained so that the determination is amenable to meaningful review.

In recent years, the US has had great difficulty with its attempts to manage its immigration policies. Earlier this year the ACLU called out immigrant detention centers in Arizona and Georgia [JURIST reports] for being unsanitary, failing to give inmates proper access to medical treatment and even denying inmates due process. Last year the US Court of Appeals for the Third Circuit ruled [JURIST report] that imprisoned immigrants who are fighting deportation cannot be held indefinitely without a bail hearing and that the government must justify the need for the prolonged detention. In an effort to combat illegal immigration, the US Immigration and Customs Enforcement (ICE) launched a voluntary deportation program [JURIST report] in 2008 which would allow certain illegal immigrants to coordinate their removal from the US with ICE without the risk of home raids, arrest or detention. However, the program was abandoned [JURIST report] for its lack of success three weeks later.