[Federal Register: November 14, 2001 (Volume 66, Number 220)]
[Rules and Regulations
[Page 56967-56982]
From the Federal Register Online via GPO Access [http://www.access.gpo.gov/]

Rules and Regulations
Federal Register


This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

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[[Page 56967]]


Immigration and Naturalization Service

8 CFR Parts 3 and 241

[INS No. 2156-01; AG Order No. 2533-2001]
RIN 1115-AG29

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 insregs@usdoj.gov. 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.


I. Background

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 
terrorist aliens.
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

[[Page 56968]]

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 
.'' Id., at 2505. What counts as the ``reasonably foreseeable 
'' 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 
). ``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 
'' for deference to ``Executive Branch primacy in foreign policy 
'' 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

[[Page 56969]]

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&