[Federal Register: November 14, 2001 (Volume 66, Number 220)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [http://www.access.gpo.gov/]
Rules and Regulations
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 3 and 241
[INS No. 2156-01; AG Order No. 2533-2001]
Continued Detention of Aliens Subject to Final Orders of Removal
AGENCY: Immigration and Naturalization Service and Executive Office for
Immigration Review, Justice.
ACTION: Interim rule with request for comments.
SUMMARY: This rule amends the custody review process governing the
detention of aliens who are the subject of a final order of removal,
deportation or exclusion, in light of the decision of the U.S. Supreme
Court in Zadvydas v. Davis, 533 U.S. ____, 121 S. Ct. 2491 (2001). This
rule adds new provisions to govern determinations by the Immigration
and Naturalization Service (Service) as to whether there is a
significant likelihood that an alien will be removed from the United
States in the reasonably foreseeable future, and whether there are
special circumstances justifying the continued detention of certain
aliens. This rule also makes conforming changes to the existing post-
removal-period detention regulations, and provides procedures to
implement the statutory provision for the extension of the removal
period beyond 90 days if the alien conspires or acts to prevent his or
her removal or fails or refuses to assist the Service in obtaining
documents necessary to effect his or her removal.
DATES: Effective date: This interim rule is effective November 14,
2001. Comment date: Written comments must be submitted on or before
January 14, 2002.
ADDRESSES: Please submit written comments to the Director, Policy
Directives and Instructions Branch, Immigration and Naturalization
Service, 425 I Street NW., Room 4034, Washington, DC 20536. To ensure
proper handling, please reference INS No. 2156-01 on your
correspondence. The public may also submit comments electronically to
the Service at email@example.com. When submitting comments
electronically, please make sure that you include INS No. 2156-01 in
the subject field. Comments are available for public inspection at the
above address by calling (202) 514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Joan S. Lieberman, Office of the
General Counsel, Immigration and Naturalization Service, 425 I Street
NW., Room 6100, Washington, DC 20536, telephone (202) 514-2895 (not a
toll-free call). For matters relating to the Executive Office for
Immigration Review: Chuck Adkins-Blanch, General Counsel, Executive
Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls
Church, VA 22041, telephone (703) 305-0470.
Section 241(a) of the Immigration and Nationality Act (the Act), 8
U.S.C. 1231(a), authorizes the Attorney General to detain aliens who
are subject to final orders of removal, in order to effectuate their
removal from the United States. Section 241(a)(1) of the Act provides a
general rule that such aliens shall be removed within the 90-day
``removal period,'' commencing on the date the removal order becomes
administratively final, the date that the Service is able to execute
the removal order after completion of any judicial review (if the court
orders a stay of removal), or the date the alien is released from
criminal incarceration, whichever is later. Detention of aliens during
the pendency of removal proceedings is governed by Section 236 of the
Act, 8 U.S.C. 1226, including the mandatory detention provisions
contained in Section 236(c).
Section 241(a)(2) of the Act governs detention of aliens during the
statutory removal period; it generally mandates detention of criminal
and terrorist aliens during that period. Section 241(a)(1)(C) of the
Act also provides that the removal period ``shall be extended,'' and an
alien subject to a final order of removal may remain in detention
during such extended period, if the alien fails or refuses to make
timely application for travel or other necessary documents for the
alien's departure, or if the alien conspires or acts to prevent the
alien's removal. The provisions of section 241(a)(2) of the Act
continue to apply until expiration of the removal period, as extended,
including provisions that mandate detention of certain criminal and
After expiration of the removal period, section 241(a)(6) of the
Act grants authority to the Attorney General to continue the detention
Any inadmissible alien;
Any alien who is deportable under subsections (a)(1)(C),
(a)(2), or (a)(4) of section 237 of the Act, 8 U.S.C. 1227; and
Any alien whom the Attorney General determines is a danger
to the community or is unlikely to comply with the removal order.
The Department's existing standards for detention or release of
aliens who are the subject of a final order of removal are set forth in
8 CFR 241.4. That section provides automatic administrative custody
review procedures for aliens who are the subject of an administratively
final order of removal, deportation, or exclusion. Those procedures
provide for multi-level reviews scheduled at regular intervals.
District directors have initial responsibility for custody decisions.
Detention authority then shifts to the INS Headquarters Post-order
Detention Unit (HQPDU) pursuant to standards set forth in the
regulation regarding the ability to effect the alien's removal from the
United States. The review process provides detained aliens with
numerous opportunities to present evidence in support of release. In
this rule, the discussion of the provisions of Sec. 241.4 concerns
detention of aliens subject to a final order of removal, after
expiration of the removal period.
What Is the Scope of the Supreme Court's Decision?
In Zadvydas v. Davis, 533 U.S. ____, 121 S. Ct. 2491 (2001), the
Supreme Court held that section 241(a)(6) of the Act generally permits
the detention of aliens who have been admitted to the United States and
who are under a final order of removal, only for a period reasonably
necessary to bring about
their removal from the United States. The Court held that detention of
such aliens beyond the statutory removal period, for up to six months
after entry of a final removal order, is ``presumptively reasonable.''
121 S. Ct. at 2504-05. After six months, if an alien can provide ``good
reason to believe that there is no significant likelihood of removal in
the reasonably foreseeable future,'' the government must rebut the
alien's showing in order to continue the alien in detention.
In cases where there is a significant likelihood that the alien
will be removed in the reasonably foreseeable future, the Supreme
Court's decision did not question the Service's authority to detain an
lien under section 241(a)(6) of the Act beyond the six-month period,
pursuant to the existing detention standards in 8 CFR 241.4. The
decision does not require that an alien under a final order of removal
be automatically released after six months if he has not yet been
removed. Instead, the Court stated: ``To the contrary, an alien may be
held in confinement until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable
future.'' Id., at 2505. What counts as the ``reasonably foreseeable
future'' in this context must take account of the length of the alien's
prior post-removal prior detention. Id.
In addition, the Supreme Court acknowledged that there may be cases
involving ``special circumstances,'' such as those involving terrorists
or specially dangerous individuals, in which continued detention may be
appropriate even if removal is unlikely in the reasonably foreseeable
future. Id. at 2499.
The Supreme Court's ruling does not govern those aliens who are
legally still at our borders, as arriving aliens under section 235 of
the Act, 8 U.S.C. 1225, including those who have been paroled into the
country pursuant to section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5)
(such as the Mariel Cubans, who are treated as still seeking
admission). ``The distinction between an alien who has effected an
entry into the United States and one who has never entered runs
throughout immigration law. * * * It is well established that certain
constitutional protections available to persons inside the United
States are unavailable to aliens outside of our geographic borders.''
121 S. Ct. at 2500. Of particular relevance here, such aliens do not
have due process rights to enter or to be released into the United
States, and their continued detention may be appropriate to accomplish
the statutory purpose of preventing the entry of a person who has, in
contemplation of the law, been stopped at the border. Furthermore, the
provisions in section 235 of the Act, governing arriving aliens, and
section 212(d)(5) of the Act, governing the exercise of the parole
authority, along with the inherent authority of the sovereign to
control its borders, furnish additional authority for the detention and
redetention of arriving aliens, including aliens granted immigration
II. Implementation of the New Review Process
The Supreme Court's decision will require the Service, drawing, as
appropriate, on the expertise of the Department of State, to assess the
likelihood of the removal of thousands of aliens to many different
countries. The Court emphasized in its decision the need to ``take
appropriate account of the greater immigration-related expertise of the
Executive Branch, of the serious administrative needs and concerns
inherent in the necessarily extensive Service efforts to enforce this
complex statute, and the Nation's need `to speak with one voice' in
immigration matters.'' 121 S. Ct. at 2504. The Court also stressed the
need for courts to give expert Executive Branch ``decision making
leeway,'' for deference to ``Executive Branch primacy in foreign policy
matters,'' and for uniform administration. Id. at 2504-05.
This rule institutes procedures by which the Executive Branch will
make the necessary judgments regarding the likelihood of removal, in a
regular and consistent manner, based on a review of its experience with
the country in question, the evidence submitted by the particular
alien, and other relevant evidence.
The Executive Branch has the knowledge and expertise essential to
perform successful its responsibilities to enforce the return of
criminal and other removable aliens to the country to which removal was
ordered or to a third country where possible. Generally, the United
States requests and receives travel documents from most nations without
a formalized written agreement. The Service routinely works in close
consultation with consular officers of foreign countries on
repatriation issues. Formal repatriation agreements are uncommon.
Efforts to secure travel documents and normalize immigration
relations with other governments are not static in nature. Efforts to
achieve comprehensive solutions and joint cooperation with all nations
are on-going, and seeking removal in individual cases is a continuous
process as well. Even where experience has demonstrated that obtaining
travel documents from certain countries is difficult, the Executive
Branch continues with diplomatic and other efforts to forge normalized
immigration relations with other governments and to pursue removal
efforts in individuals cases in the meantime.
Indeed, while the Service's experience has varied significantly
from country to country, it has been successful in removing aliens,
even criminal aliens, to all countries.
Additionally, the alien and his or her family may be able to secure
travel documents or removal to a third country in cases where the
Service has been unable to effect removal. The removal process is a
shared responsibility among the alien, the Executive Branch and the
country of return. In several respects, as discussed in more detail
below, the existing provisions of the Act codify the obligation of the
alien to cooperate with the removal effort an to comply with requests
from the Service to obtain travel documents or to take other necessary
steps to effect the alien's removal from the United States.
What Changes Does This Rule Make?
In light of the Supreme Court's decision in Zadvydas, this rule
revises the Department's regulations by adding a new 8 CFR 241.13,
governing certain aspects of the custody determination of a detained
alien after the expiration of the removal period. Specifically, the
rule provides a process for the Service to make a determination as to
whether there is a significant likelihood that the alien will be
removed in the reasonably foreseeable future.
Except as provided in this new Sec. 241.13, the existing detention
standards in Sec. 241.4 will continue to govern the detention or
release of aliens who are subject to a final orders of removal. Thus,
aliens who are determined not to be a danger to the community or a
flight risk may be released under Sec. 241.4 regardless of whether
there is a significant likelihood of removal.
If the Service determines under the procedures of Sec. 241.13 that
there is no significant likelihood of removal in the reasonably
foreseeable future, then the Service generally will be required to
release the alien, under appropriate conditions of supervision intended
to protect the public safety and to ensure the Service's continued
ability to remove the alien should that become possible in the future.
In the alternative, in appropriate cases, the Service may choose to
invoke the provisions of Sec. 241.14, as added by this rule, in order
to justify continued detention of a
particular alien because of special circumstances, of the sort
discussed in the Supreme Court's decision in Zadvydas, even though the
alien's removal is not significantly likely in the reasonably
foreseeable future. In either case, while the Service is evaluating
whether or not there is a significant likelihood of removal in the
reasonably foreseeable future under Sec. 241.13, or while the Service
is pursuing procedures for continued detention of an alien under
Sec. 241.14 on account of special circumstances, the Service will be
able to continue an alien in detention pending the conclusion of those
proceedings as provided for in this rule.
This rule also makes conforming amendments to the existing
detention standards in Sec. 241.4 to make appropriate reference to the
new procedures for determining whether there is a significant
likelihood of removing an alien in the reasonably foreseeable future.
This rule does not alter either the substantive standards under
Sec. 241.4 for the Service to determine whether to release or detain
aliens because of risk of flight or danger to the community, or the
procedures for the Service to conduct such custody reviews (first by
the district director and then by the Service's HQPDU). Thus, aliens&