U.S. INS Adopts New Legal Interpretation of Mandatory Detention Provision
The Immigration and Naturalization Service (INS) announced in a press release dated July 12th that it has changed its legal interpretation of the mandatory detention requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). Section 236(c) of the Immigration and Nationality Act (INA) mandates detention for certain individuals (including the broad class of "aggravated felons") "when the alien is relased." Until July 12th, INS had interpreted this provision to mean that those subject to 236(c) could not be released if the INS apprehended the individual at any time after the expiration of the Transitional Period Custody Rules (TPCR). (The TPCR, which permitted INS or an Immigration Judge (IJ) to release a detainee on bond, expired on October 8, 1999.)
Under the new INS interpretation, certain foreign nationals who completed their criminal sentences (including periods of probation, work release, imprisonment, etc.) prior to October 9, 1998 are eligible to be considered for release from INS detention. INS will conduct a case-by-case review and exercise discretion on those individuals with no final order of removal who completed their criminal sentences prior to October 9, 1998, do not pose a danger to the community, and demonstrate a strong likelihood to appear for their hearing.
The following example should help clarify the new policy: A person convicted of a felony and sentenced to two years probation on October 8, 1998 is not subject to mandatory detention, if the criminal court released the individual on October 8, 1998--prior to October 9, 1998-- he will not be a subject to mandatory detention. The probationary period is not relevant since the individual was released prior to October 9, 1998. If this same person were convicted and sentenced to probation on October 9, 1998, all other facts being the same, he would be subject to mandatory detention.
INS Headquarters held a briefing for its regional offices on July 13th and directed its district offices to identify cases of detainees who should be considered for release. This review was supposed to be completed in 5 business days between July 13th and July 19th. INS estimated that approximately 1,000 detainees will be affected by this changed interpretation (approximately 5% of detainees). The identified cases will then be evaluated for release "as expeditiously as possible." Once INS has identified a case and made a bond determination, the alien and his or her representative will receive a Notice of Custody Determination. At that point, the alien can file for a motion for a bond re-determination with the Immigration Court. Since a detainee may not know that his case is under review until receipt of the Notice of Custody Determination, legal representatives should supply the District Director with as much information as possible showing that the individual merits release.
The INS re-interpretation raises two points worth underscoring:
The legal opinion from the Office of Immigration Litigation that led in part to this change has not been officially released but a version has been posted to InfoNet (Seach under "Mandatory Detention" dated February 3, 1997). Please feel free to contact the AILA Advocacy Departments with questions (202-216-2400).
This report drafted with the assistance of AILA member Melanie
Nezer of Immigration and Refugee Services of America (IRSA).
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