Change detention in law from may to shall
What the document says“Congress should eliminate ambiguous discretionary language in Title 8 that aliens “may” be detained and clarify that aliens “shall” be detained.”
The chapter says the word may creates ambiguity that lets the executive branch ignore the will of Congress, and asks for it to be replaced with shall so that detention is mandatory rather than discretionary.
What the document actually says“Congress should eliminate ambiguous discretionary language in Title 8 that aliens “may” be detained and clarify that aliens “shall” be detained.”
The law says people may be held. The book says change it to must be held.
One word in the law matters here. It says people may be held. That leaves a choice. The book says it should say must.
Securing Our Borders
2025-01-20 · 90 FR 8467
Section 5 directs the Secretary of Homeland Security to detain, to the fullest extent permitted by law, aliens apprehended for immigration violations until their removal, and to issue policy guidance or propose regulations on consistent use of detention authority under the Immigration and Nationality Act, including terminating the practice commonly known as catch and release. Section 2(c) states the same as policy. The result sought is the same as the passage seeks, but by the route the passage identifies as the problem: the direction operates inside existing discretion, is expressly bounded by what the law permits, and amends no statute, so the discretionary language the passage wants replaced remains and a later Secretary could read it differently.
The order tells the Homeland head to hold aliens caught for immigration breaches until they leave, as far as the law allows. It ends the practice known as catch and release. The end sought is the same as the book's. But it works inside the same loose wording the book wants changed. No law is amended, so a later head could read it another way.
To require the Secretary of Homeland Security to take into custody aliens who have been charged in the United States with theft, and for other purposes
2025-01-29 · 139 Stat. 3
Section 2 adds a new subparagraph (E) to section 236(c)(1) of the Immigration and Nationality Act, the list of aliens who must be taken into custody, covering those inadmissible under section 212(a)(6)(A), (6)(C) or (7) who are charged with, arrested for, convicted of or admit burglary, theft, larceny, shoplifting, assault of a law enforcement officer, or a crime resulting in death or serious bodily injury, and provides that the Secretary of Homeland Security shall issue a detainer and take custody. Section 3 strikes the words or release from section 236(e). Congress is replacing discretion with a duty, by statute, which is the instrument and the direction the passage names. It is one added class rather than the general change described: the discretionary language of section 236(a) stands, and the rest of Title 8 is untouched.
The law adds one group that must be held, not merely may be held. It covers people charged with theft, burglary, or badly hurting someone. Congress made this a duty, as the chapter wanted. But the rest of the law still leaves most cases to choice.
3 agency rules
- Imposition and Collection of Civil Penalties for Certain Immigration-Related ViolationsHomeland Security Department, U.S. Immigration and Customs Enforcement, Justice Department, Executive Office for Immigration Review · June 27, 2025
- Security Bars and Processing; Confirmation of Effective Date; Partial WithdrawalHomeland Security Department, Justice Department, Executive Office for Immigration Review · December 30, 2025
- Establishment of Four Customs-Enforcement AreasHomeland Security Department, U.S. Customs and Border Protection · August 25, 2026
Each of these names the order above in its own summary, preamble or filing. That is a fact about the document, not a finding that it carries out this proposal: it is one step further away than the order is, and what it does about the proposal is a reading nobody has made here.