A Passport as Property of the Foreign Government
Passports issued by a government, whether foreign or the United States, usually contain a printed provision informing the holder of the passport, that the passport will at all times remain property of the issuing government. A government's property right in a passport stems from the government's right to determine its own citizens. The passport acts as prima facie evidence of citizenship. Therefore, the issuing government has the ability to demand the relinquishment of the actual passport upon request.
Department of Homeland Security and Removal Proceedings
The Department of Homeland Security (DHS) seizes a foreign national's passport at the beginnning of removal proceedings to ensure the returnability of the detained or, at times, non-detained individual upon completion of the proceedings. The simple idea being that once an individual is deemed as removalable from the U.S. by an Immigration Court, the DHS will use the individual's foreign passport as means of delievering that individual back to his country of citizenship. This seizure creates an interesting dilemma, in that the foreign passport does not actually belong to the individual from whom it is confiscated from, it belongs to the government that issued it. Thus, the DHS violates a foreign government's property interest every time is seizes a foreign passport.
Lack of True Regulation
The history of passport seizures is quite complex. However, only in the last few decades has the U.S. government truly began mass seizures. Throughout the 20th century, cases dealing with the international issues raised by passport seizure found this action to be a violation of international norms, specifically violation of a foreign government's vested property interest. As well, the U.S. previously issued various Department of State memos raising issue with foreign governments seizing U.S. citizens' passports. Yet, with the epic increase of removal proceedings being initiated in the U.S. over the last twenty years there has been a stark rise in the number of foreign passport seizures. Of note, there is no specific law that allows the U.S. government to seize a foreign nationals passport with regard to removal proceedings, the ability to do so is merely established in recent U.S. case law dicta and DHS memos and SOPs.
Attorneys should note that when dealing with the DHS, attorneys do have the ability to request a foreign national's passport after it has been seized. This may come in handy when an individual is in need of producing identification for obtaining biometrics or a driver's license. The DHS has been known to misplace passports that it has seized, and as such, attorneys should always keep track as much as possible to their client's passport.