New Immigration Bill Shifts Custody Authority to DHS and Allows for Extended Detention Periods

The 'Keep Our Communities Safe Act of 2026' fundamentally reshapes how the U.S. government handles noncitizens in the immigration system. At its core, the bill moves the primary authority for detention and release from the Attorney General to the Secretary of Homeland Security (DHS). This isn't just a change in letterhead; it grants DHS broader discretion to hold individuals—including those already released on parole or probation—back into custody if they meet certain criteria under Section 236 of the Immigration and Nationality Act. Specifically, the bill mandates that if a noncitizen is flagged for certain activities or offenses, the Secretary must take them into custody regardless of whether they were already released by another agency or are currently on supervised release.

The Long-Term Hold

Perhaps the most significant shift for families and legal advocates is the new language regarding the length of detention. Under Section 2, the bill specifies that noncitizens can be detained for 'any period, without limitation' until a final removal order is issued. While there is a process to seek release on bond, the bar is set exceptionally high: the individual must prove by 'clear and convincing evidence' that they aren't a flight risk or a danger to the community. For those already flagged under mandatory detention categories, the option to even ask for a bond is removed entirely. This could mean that a person working a trade job or supporting a family while their case winds through the courts could suddenly find themselves in a detention center for an indefinite period with very few legal avenues to get out.

After the Final Order

For those who have already received a final order of removal, the rules for the 'removal period'—usually a 90-day window to get travel documents and depart—are getting a major overhaul. Section 3 allows DHS to suspend this 90-day clock if they decide a person isn't 'cooperating fully,' such as struggling to get a passport from a slow-moving foreign consulate. During this suspension, detention continues. Even after the 90 days are up, the bill authorizes DHS to keep holding someone if the Secretary certifies in writing that they pose a national security threat, have a highly contagious disease, or are considered 'dangerous' due to past aggravated felonies. These certifications can be renewed every six months, and the bill explicitly states that these decisions are not subject to review by any other agency, effectively creating a closed loop of authority within DHS.

Real-World Reach and Retroactivity

This legislation doesn't just apply to new cases; it is designed to be retroactive. Section 5 states the law applies to anyone currently detained and any removal orders issued before the act even exists. For a legal advocate or a family member of someone in the system, this means the 'rules of the game' could change overnight for cases they thought were settled. Because the bill uses broad terms like 'threat to the safety of the community' without strictly defining every scenario, much of the impact will depend on how DHS leadership chooses to interpret their new powers. For everyday people, this translates to a system with more 'staying power' for the government and fewer 'checkpoints' for individuals to challenge their detention in court.