{"id":72813,"title":{"rendered":"The Laken Riley Act\u2019s Assault on Immigrant Survivors"},"content":{"rendered":"

Hiroko Kusuda1<\/sup><\/a><\/h2>\r\n\r\n
13 Stetson J. Advoc. & L. 390 (2026)<\/strong><\/div>\r\n\r\n

I. Introduction<\/h2>\r\n\r\n

This article examines the Laken Riley Act and its potential application to applicants for humanitarian immigration relief, using real-life examples. By addressing the United States obligations to protect persons who flee persecution under the UN Refugee Convention and the Protocol, as well as the Congressional intent behind enacting the Refugee Act and the Violence Against Women Act, which created Special Immigrant Juvenile Status, this article challenges its glaring lack of humanity in failing to exempt immigrant survivors and children.<\/p>\r\n\r\n

II. International Law Prohibits Detention of Asylum Seekers<\/h2>\r\n\r\n

International law prohibits restriction of one\u2019s movement on the basis of race, color, sex, language, religion, political opinion, social origin, property, and status, such as asylum-seeker or refugee status.2<\/sup><\/a> The 1951 UN Refugee Convention provides that asylum-seekers shall not be penalised for their illegal entry or stay, provided they present themselves to the authorities without delay and show good cause for their irregular entry or stay without authorization.3<\/sup><\/a> Although not a party to the 1951 UN Refugee Convention, the United States is a party to the 1967 Protocol Relating to the Status of Refugees, which removed geographical and time-based restrictions from the Convention.4<\/sup><\/a> By ratifying the Protocol in 1968, the U.S. agreed to most of the obligations outlined in the Convention and incorporated the definition of a refugee into its own laws through the Refugee Act of 1980.5<\/sup><\/a><\/p>\r\n\r\n

Seeking protection from persecution, asylum-seekers are often forced to arrive at, or enter, a territory without prior authorization. Under U.S. law, individuals may lawfully seek asylum whether they apply at the port of entry, after arriving without valid immigration documents, or after arriving without admission, as the law provides an exception to a normal admission requirement for asylum seekers by taking into consideration that asylum-seekers may differ fundamentally from that of ordinary migrants in that they may not be able to comply with the legal formalities for entry.6<\/sup><\/a> For example, they maybe unable to obtain the necessary documentation in advance of their flight due to their fear of persecution and\/or the urgency of their departure.<\/p>\r\n\r\n

The United Nations High Commissioner for Refugees (UNHCR)\u2019s Detention Guidelines recognize that due to the experience of seeking asylum, and the often traumatic events precipitating flight, asylum-seekers may present with psychological illness, trauma, depression, anxiety, aggression, and other physical, psychological and emotional consequences. These factors need to be weighed in the assessment of the necessity to detain. The Guidelines also state that victims of torture and other serious physical, psychological or sexual violence also require special attention and should generally not be detained.7<\/sup><\/a><\/p>\r\n\r\n

The detention of asylum-seekers and refugees, including children, has become commonplace in a number of countries and has serious lasting effects on individuals and families. Detention has become increasingly a routine, rather than exceptional, response to the irregular entry or stay of asylum-seekers and migrants in a number of countries.8<\/sup><\/a><\/p>\r\n\r\n

Detention has many negative lasting effects on individuals, especially asylum seekers and children. It undermines their human dignity and can cause unnecessary suffering, resulting in serious consequences for their health and wellbeing, particularly when they are detained for long periods. Detention also increases anxiety, fear and frustrations, and can exacerbate past traumatic experiences. It frequently takes place in locations and under conditions that do not meet human rights standards. The detention of children is particularly problematic due to the devastating effect it may have on their physical, emotional, and psychological development, even if they are not separated from their families.9<\/sup><\/a><\/p>\r\n\r\n

III. History of Immigrant Detention under U.S. Immigration Law<\/h2>\r\n\r\n

Passed in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) expanded the groups of people subject to detention. Specifically, the IIRIRA mandated the mandatory detention of asylum seekers pending a final determination of credible fear or persecution in their native country.10<\/sup><\/a> Additionally, the IIRIRA allowed the Attorney General to release detained non-citizens on a bond of no less than $1,500.00 or conditional parole. However, the Attorney General could, at any time, revoke a bond or conditional parole. Further, the IIRIRA required the detention of inadmissible non-citizens who had committed certain enumerated crimes.11<\/sup><\/a> Lastly, the IIRIRA required the removal of non-citizens ordered for removal within 90 days. During the 90 day removal period, the Immigration and Nationality Act (Act) required that the non-citizen be detained with no possibility for release. The removal period could be extended beyond the 90 day period and the non-citizen could remain in detention if the non-citizen did not, in good faith, make the necessary applications for travel or obtain necessary documents, or if the non-citizen conspired to prevent their removal.12<\/sup><\/a><\/p>\r\n\r\n

Also passed in 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) aimed to enhance national security against foreign terrorists by allowing the U.S. government to deny visas to certain individuals linked to terrorist groups and expedite the removal of non-citizens linked to said groups.13<\/sup><\/a> Regarding non-citizen detention, the AEDPA reformed habeas corpus procedures by mandating that non-citizens cannot appeal final orders to test the validity of their detention pending their removal unless a circuit judge issued a certificate of appealability.14<\/sup><\/a> Further, the Act required that non-citizen terrorists be removed to any country the non-citizen designated or an alternative country if they did not designate one, and allowed for the United States to continue the detention of the non-citizen if no country was willing to receive them.15<\/sup><\/a><\/p>\r\n\r\n

In Zadvydas v. Davis<\/em>, the Supreme Court addressed the indefinite detention of non-citizens ordered to be removed. The Court held that the post-removal detention statute, 8 U.S.C. \u00a7 1231, did not permit indefinite detention and non-citizens could only be detained for a reasonably necessary period to bring about their removal. Further, the Court set a six-month threshold before non-citizens could question their detention and explained that the \u201creasonably necessary\u201d period would be subject to review by the federal courts.16<\/sup><\/a><\/p>\r\n\r\n

Then, in Demore v. Kim<\/em>, the Supreme Court upheld Congress\u2019s ability to detain deportable criminal non-citizens for a reasonably necessary period pending their removal without individualized bond hearings.17<\/sup><\/a><\/p>\r\n\r\n

In 2009, then President Barack Obama temporarily ended the practice of family detention by closing the T. Don Hutto jail in Texas and cutting the number of non-citizens in family detention to less than 100. However, a surge of Central American immigrants in 2014 led President Obama\u2019s administration to reinstitute and expand family detention to deter more immigrants from coming to the U.S. U.S. Immigration and Customs Enforcement estimated that Enforcement and Removal Operations would grow up to 2,760 family units in 2016. 18<\/sup><\/a><\/p>\r\n\r\n

In recent years, states have passed, or attempted to pass, laws restricting for-profit detention facilities. In 2017, California became the first state to pass a law restricting the growth of for-profit detention facilities located within California.19<\/sup><\/a> However, the Ninth Circuit Court of Appeals blocked the law, finding that it violated the Supremacy Clause of the United States.20<\/sup><\/a> In 2021, Illinois passed the \u201cWay Forward Act,\u201d which prohibited state and local enforcement from participating in civil immigration law.21<\/sup><\/a>The Seventh Circuit Court of Appeals upheld the Illinois law, finding that the statute did not impose any direct regulations upon the U.S. government in violation of the principles of intergovernmental immunity, nor did the statute discriminate against the government in violation of intergovernmental immunity.22<\/sup><\/a><\/p>\r\n\r\n

During the current presidential term, President Trump has increased immigration detention efforts. In 2025, President Trump signed into law H.R. 1, also known as the \u201cOne Big Beautiful Bill\u201d, which provides $45 billion to immigration detention capacity.23<\/sup><\/a> Most recently this year, in Matter of Q Li<\/em>, the Board of Immigration Appeals held that noncitizens arrested without a warrant upon arrival in the U.S. at or between ports of entry are considered applicants for admission and are subject to mandatory detention under INA \u00a7 235(b), rendering them ineligible for bond hearings under INA \u00a7 236(a), and if such an individual\u2019s parole is later revoked, they return to mandatory detention under \u00a7 235(b) and remain ineligible for bond.24<\/sup><\/a> Several months later, in Matter of Yahuare Hurtado<\/em>, the Board held that Immigration Judges lack the authority to hear or grant bond requests of non-citizens who entered the country without admission or parole.25<\/sup><\/a><\/p>\r\n\r\n

IV. Statutes Governing Immigration Detention<\/h2>\r\n\r\n

Two immigration statutes mainly govern the detention of noncitizens pending removal proceedings: INA \u00a7\u00a7 235 and 236 (codified at 8 USC \u00a7\u00a7 1225 and 1226). INA \u00a7 235 provides inspection of \u201c[<\/span>a]<\/span>ll aliens . . . who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States\u201d 8 U.S.C. \u00a7 1225(a)(3), where an \u201capplicant for admission\u201d is defined as \u201c[<\/span>a]<\/span>n alien present in the United States who has not been admitted or who arrives in the United States.26<\/sup><\/a> Under INA \u00a7 235, detention is mandatory in the case of an alien \u201cwho is an \u2018applicant for admission,\u2019 if the examining immigration officer determines that an alien \u2018seeking admission\u2019 is \u2018not clearly and beyond a doubt entitled to be admitted,\u2019 the alien shall be detained for a proceeding under section 1229a of this title.\u201d27<\/sup><\/a> In Jennings v. Rodriguez<\/em>, the Supreme Court has construed INA \u00a7 235 as governing a \u201cprocess of decision [<\/span>that]<\/span> generally begins at the Nation\u2019s borders and ports of entry, where the Government must determine whether an alien seeking to enter the country is admissible.\u201d28<\/sup><\/a><\/p>\r\n\r\n

On the other hand, \u201c[<\/span>o]<\/span>n a warrant issued by the Attorney General,\u201d authorizes the Government to detain certain aliens already in the country pending the outcome of removal proceedings, with certain conditions for release or conditional parole.29<\/sup><\/a> \u201c[<\/span>T]<\/span>he Due Process clause of the Fifth Amendment entitles a noncitizen detained pursuant to INA \u00a7 236(a) to a bond hearing at which the government bears the burden of proving by clear and convincing evidence that the noncitizen is dangerous or a flight risk.\u201d 30<\/sup><\/a> INA \u00a7 236(c) provides, however, that detention is mandatory for certain noncitizens.31<\/sup><\/a><\/p>\r\n\r\n

Prior to the LRA enactment, INA \u00a7 236(c) provided that DHS \u201cshall take into custody\u201d nonresidents who \u201chav[<\/span>e]<\/span> committed\u201d certain enumerated offenses such as offenses involving terrorist activities or certain offenses with a one year imprisonment term.32<\/sup><\/a> In such cases, the Supreme Court has found that detention without a bond hearing is justified \u201cfor the brief period necessary for [<\/span>the noncitizen\u2019s]<\/span> removal proceedings.\u201d 33<\/sup><\/a><\/p>\r\n\r\n

V. Laken Riley Act<\/h2>\r\n\r\n

On January 29, 2025, President Trump signed the Laken Riley Act (\u201cLRA\u201d) into law, which expanded the number of people who may be subject to mandatory detention under INA \u00a7 236(c).34<\/sup><\/a> This new mandatory detention status under INA \u00a7 236(c)(1)(E) applies to noncitizens who (1) are charged as inadmissible under INA \u00a7 212(a)(6)(A) (present without being admitted or paroled), INA \u00a7 212(a)(6)(C) (fraud or misrepresentation), or INA \u00a7 212(a)(7) (lack of valid immigration documents); and (2) are charged with, arrested for, convicted of, or admit to committing burglary, theft, larceny, shoplifting, or assault on a law enforcement officer, or any crime resulting in death or serious bodily injury.35<\/sup><\/a><\/p>\r\n\r\n

The amended INA \u00a7 236(c) further provides that when the noncitizen is released, without regard to whether the noncitizen is released on parole, supervised release, or probation, and without regard to whether the noncitizen may be arrested or imprisoned against for the same offense. The LRA also adds a new section, INA \u00a7 236(c)(3), which requires that (1) DHS \u201cshall\u201d issue a detainer on a person described under the new INA \u00a7 236(c)(1)(E) and (2), if the person is \u201cnot otherwise detained\u201d in federal, state, or local custody, DHS \u201cshall effectively and expeditiously\u201d take custody of the person.36<\/sup><\/a><\/p>\r\n\r\n

VI. The LRA\u2019s Application to Loyola Law Clinic\u2019s Clients<\/h2>\r\n\r\n

A. Marisol and Brian<\/h3>\r\n\r\n

Loyola University New Orleans Law Clinic represents Marisol and her children in obtaining immigration relief: for Marisol, asylum, withholding of removal, and relief under the Convention Against Torture; and for her children, Special Immigrant Juvenile Status.<\/p>\r\n\r\n

Marisol and her three children walked thousands of miles from their Central American home country, escaping years of physical violence and psychological torture by her domestic partner and the father of the children. Her middle child has Down Syndrome, and is nonverbal. At the border, they surrendered themselves to U.S. Customs and Border Protection (CBP) officials. Marisol was then separated from her children and sent to an adult Immigration and Customs Enforcement (ICE) detention center. Her children were designated as \u201cunaccompanied minors,\u201d transferred to the custody of the U.S. Department of Health and Human Services\u2019 (HHS) Office of Refugee Resettlement, and sent to a shelter for children. They were reunited after several months. They were individually served with a Notice to Appear, a charging document, which charged them with entering the U.S. without inspection or parole under INA \u00a7 212(a)(1)(6)(A).37<\/sup><\/a> Marisol\u2019s asylum hearing is approximately a year away; her children have received Special Immigrant Juvenile Status and are waiting for their priority date to become current, at which point they can apply for lawful permanent residency.<\/p>\r\n\r\n

Last year, Marisol was arrested for shoplifting while shopping with her friend at a local store\u2019s self-checkout counter for failure to scan the merchandise. She awaits her state criminal court hearing in a few weeks. In the same year, her oldest child and middle schooler, Brian, was also arrested for stealing a pencil. He was taken to a juvenile detention center and later placed in a diversion program. He is expected to complete the program in six months. Both Marisol and Brian are afraid that their family will be separated and deported before they can obtain immigration relief.<\/p>\r\n\r\n

B. Does the LRA\u2019s Mandatory Detention Statute Apply to Marisol and Brian?<\/h3>\r\n\r\n

First, it is should be noted that the LRA\u2019s mandatory detention statute does not cover noncitizens who are subject to:<\/p>\r\n\r\n

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