[Federal Register: June 30, 2000 (Volume 65, Number 127)]
[Proposed Rules]
[Page 40540-40548]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn00-23]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 40540]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 212, 236, and 241
[INS No. 2029-00; AG Order No. 2310-2000]
RIN 1115-AF82
Detention of Aliens Ordered Removed
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule would amend the Immigration and Naturalization
Service (Service) regulations by providing a uniform review process
governing the detention of criminal, inadmissible, and other aliens,
excluding Mariel Cubans, who have received a final administrative
removal order but whose departure has not been effected within the 90-
day removal period. Such a process is necessary to ensure periodic
custody reviews for post-order cases and consistency in decision-
making. Since the Service is developing a specialized, ongoing
administrative review process for these custody determinations, this
rule would eliminate the appellate role of the Board of Immigration
Appeals in post-final order custody determinations. This rule also
would amend the Service's regulations to reflect the authority of the
Commissioner, and through her, other designated Service officials, to
release certain aliens from Service custody, issue orders of
supervision, and grant stays of removal.
DATES: Written comments must be submitted on or before July 31, 2000.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW, Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS No. 2029-00 on
your correspondence. 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).
SUPPLEMENTARY INFORMATION:
Why is the Service Issuing This Proposed Rule?
Congress has progressively acted to restrict the release into the
community of aliens convicted of certain crimes, beginning with
amendments affecting aggravated felons in the Anti-Drug Abuse Act of
1988, Pub. L. 100-690, and the Immigration Act of 1990, Public Law 101-
649. Congress extended these restrictions to other categories of crimes
in the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
104-132 and the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. 104-208. Under prior law, criminal aliens who were
referred to as deportable under former section 242 of the Immigration
and Nationality Act (Act) generally could only be detained for a period
of 6 months pending removal after the issuance of a final deportation
order. This restriction has been removed. Pursuant to section 241(a)(6)
of the Act, 8 U.S.C. 1231(a)(6), certain classes of aliens may be
detained in the discretion of the Attorney General beyond the 90-day
removal period, including aliens that the Attorney General determines
constitute a risk to the community or are unlikely to comply with the
order of removal.
As a result of this change in the law and other factors, there has
been a considerable increase in the number of aliens in immigration
custody who have a final order of removal but who the Service is unable
to remove during the removal period set out in section 241(a)(1) of the
Act, 8 U.S.C. 1231(a)(1).
Two courts of appeals have upheld the Attorney General's authority
to continue detention after the removal period. See Duy Dac Ho v.
Greene, 204 F.3d 1045 (10th Cir. 2000); Zadvydas v. Underdown, 185 F.3d
279 (5th Cir. 1999). The Ninth Circuit recently held, in Ma v. Reno,--
F.3d --, 2000 WL 358445 (9th Cir. Apr. 10, 2000), that such detention
may not be extended more than a reasonable time beyond the statutory
removal period, but the Department of Justice is seeking further review
of that decision. This rule will provide procedures to govern detention
of aliens with final orders, to the extent that they continue to be
detained after the expiration of the removal period.
The Department of Justice has determined that a separate custody
review process is appropriate for aliens who are detained beyond the
90-day removal period. This action permits a comprehensive and fair
review of post-order cases by establishing multiple levels of review to
determine whether certain detained aliens may be released from custody,
and sets forth the procedures governing such release or continued
detention. As was the case with the implementation of the Mariel Cuban
Review Plan, this review process is intended to balance the need to
protect the American public from potentially dangerous aliens who
remain in the United States contrary to law with the humanitarian
problems created by another country's unjustified delay or refusal to
accept repatriation of its nationals.
Currently, 8 CFR 241.4 provides the general procedures governing
the detention of criminal, inadmissible, and other aliens who have
received a final administrative removal order but whose departure has
not been effected within the 90-day removal period specified in section
241(a)(1) of the Act, 8 U.S.C. 1231(a)(1). In 1999, pending
promulgation of more specific procedures by regulation and to institute
a more uniform process nationwide, the Service issued a series of
memoranda to provide specific guidance to field offices concerning
implementation of interim procedures governing post-order custody
cases. Detention Procedures for Aliens Whose Immediate Repatriation is
Not Possible or Practicable, February 3, 1999; Supplemental Detention
Procedures, April 30, 1999; Interim Changes and Instructions for
Conduct of Post-Order Custody Reviews, August 6, 1999 (collectively
``the Pearson memoranda'').
This rule establishes permanent procedures for post-order custody
reviews. The rule will assist the decision maker in determining whether
an alien is an appropriate candidate for release from custody after the
expiration of the removal period. When the review procedures are
adopted in final form, they will supersede the Pearson
[[Page 40541]]
memoranda. The new procedures are modeled after those governing the
Mariel Cubans at 8 CFR 212.12 and consist of a file review with the
opportunity for a panel interview and recommendation, and a final
decision by a separate Service Headquarters unit, the Headquarters
Post-Order Detention Unit (HQPDU). Although Mariel Cuban procedures
will continue to be governed separately, the review process is similar
for both groups of aliens.
Who is Covered Under This Proposed Rule?
This proposed rule would establish a permanent review procedure
that would apply to noncriminal aliens as well as inadmissible and
criminal aliens whose release after expiration of the 90-day removal
period presents a significant risk of noncompliance with the order of
removal or a danger to public safety. The Attorney General is
authorized to detain these aliens beyond the removal period, as
necessary, consistent with section 241(a)(6) of the Act, 8 U.S.C.
1231(a)(6), until they can be removed from the United States.
This permanent review procedure will govern all post-order custody
reviews with the exception of Mariel Cubans whose parole under section
212(d)(5) of the Act, 8 U.S.C. 1182(d)(5), is governed by the
provisions of 8 CFR 212.12. Mariel Cuban custody reviews will continue
to be conducted pursuant to those provisions.
What Are the Proposed Procedures for Post-Order Custody Reviews?
Under the proposed rule, the district director maintains the
responsibility for the initial custody review when the alien's
immediate repatriation is proper but not practicable at the expiration
of the removal period. For the initial post-order custody review at the
expiration of the removal period (the 90-day custody review), the
district director will conduct a file review. In most cases, it will be
unnecessary for the district director to undertake a personal interview
since the alien's immigration proceedings have recently concluded, and
the information of record is recent. The district director has the
discretion to conduct a personal or telephonic interview if he or she
finds that it will assist him or her in making a custody determination.
Further, the alien will be provided with the opportunity to present any
relevant written information the alien desires in support of his or her
release into the community.
After the 90-day custody review, the district director will notify
the alien in writing that he or she is to be released from custody, or
that the alien will be continued in detention pending repatriation or
further review of his or her custody status.
Where the district director has notified the alien that he or she
will continue to be detained pending repatriation, the district
director's authority to reconsider an alien's custody status may be
extended for an additional period of up to 3 months after expiration of
the removal period. The additional 3-month period will allow the
district director to continue efforts to obtain the necessary travel
documents to effect the alien's removal before the detention authority
is transferred to Service Headquarters.
During the additional 3-month period, the alien may submit a
written request to the district director for further review of his or
her custody status. The district director shall consider information
that the alien submits in support of his or her release from detention
demonstrating a material change in circumstances. The district director
will provide a written response as appropriate to the alien's
submission of such new information and may, in the exercise of
discretion, conduct any further review of the alien's custody status
that he or she deems appropriate. The district director retains the
authority to release the alien during this period as well.
If the alien has not been repatriated or released, detention
authority transfers to the newly designated Service component, the
HQPDU, under the authority of the Executive Associate Commissioner,
Field Operations (Executive Associate Commissioner), either at the end
of the 90-day removal period or at the expiration of the 3-month
extension period. Under either circumstance, the HQPDU will ordinarily
commence a custody review within 30 days of the transfer of detention
authority or as soon as possible thereafter should unforeseen or
emergent circumstances arise. The alien will receive written notice of
the custody review approximately 30 days prior to the scheduled review.
The HQPDU will conduct all further custody determinations as long as
the alien remains in custody pending removal. Subsequent custody
reviews will be conducted at annual intervals (or more frequently in
the sole discretion of the HQPDU).
When the detention authority transfers to the HQPDU, that unit will
conduct a file review for each alien previously ordered detained by the
district director. If the file review does not result in a release
decision, the alien will be given the opportunity for a panel
interview. The two-member panel will be chosen from professional staff
of the Service. The interview will be conducted in person and a
translator will be provided if the Service official determines that a
translator's assistance is appropriate. As under the Mariel Cuban
Review Plan, the interviewing panel will make a custody recommendation
to the HQPDU. Upon receipt of the panel's recommendation, the HQPDU
shall determine whether to detain or grant release consistent with the
delegation of discretionary authority. The decision of the HQPDU will
be final and will not be subject to further administrative review.
The HQPDU is not bound by the panel's recommendation. The HQPDU
retains full statutory authority for custody determinations under
sections 241(a)(6), 8 U.S.C. 1231(a)(6), and (for inadmissible aliens)
212(d)(5) of the Act, 8 U.S.C. 1182(d)(5). The panel's recommendation
is designed to serve as an important guide to the exercise of
discretion for the HQPDU, but the decision maker must be free to assess
all of the circumstances in arriving at a final custody determination.
The decision maker must also take into consideration changes in foreign
and domestic affairs, the availability of fiscal resources, public
policy and humanitarian concerns, and other factors that could weigh
for or against the decision in an individual case.
The subsequent HQPDU periodic review, to be conducted within one
year of a refusal to grant release under these procedures or as soon as
practicable thereafter in case of unforeseen circumstances or an
emergent situation, will address whether the alien can be released into
the community if the alien has not been repatriated since the last
review. The HQPDU may conduct a custody review at more frequent
intervals at its sole discretion and consider written submissions
demonstrating any material change in circumstances that supports the
alien's release during the interval between reviews. Material change
does not include mere disagreement with the decision denying release.
The HQPDU will give a written response to the alien's submission of new
information as appropriate under the rule. Written submissions, whether
to the district director or the HQPDU, must be in English or they may
not be given consideration.
The alien may be assisted by a person of his or her choice in
preparing or submitting information in response to the notice of
custody review. The Service has followed the guidelines set forth in 8
CFR 212.12(d)(4)(ii) (regarding representation of an alien before a
[[Page 40542]]
Mariel Cuban parole panel) rather than the more formal rules regarding
attorney representatives at 8 CFR 292.1. Both 8 CFR 212.12 and the
proposed rule allow the alien to be accompanied by a person of his or
her choice at the panel interview (subject to the discretion of the
institution and panel). It may be difficult for the detained alien to
secure the services of a licensed attorney for each annual review, or
counsel may change between reviews. Further, giving the alien
discretion in selecting who will assist him or her in preparation of
materials for submission to the district director and who will
accompany him or her to the panel proceeding promotes two important
Service objectives. These objectives are to make this process as
flexible and nonadversarial as possible and to promote the alien's
level of comfort with the proceedings. The alien's representative will
be required to complete an INS Form G-28 (Notice of Entry of Appearance
as Attorney or Representative) at the time of the interview or prior to
reviewing the detainee's records. Attached to any notice of a file
review or interview, the Service will provide a list of free or low
cost attorneys and representatives who are located near the alien's
place of confinement.
Although the Service will forward any notice or decision relating
to the custody review to counsel or other representative of record
through regular mail, the alien bears primary responsibility for
ensuring that the individual providing assistance to him or her is
aware of any notices, decisions, or other documentation relating to the
custody review. Experience with the Cuban Review Plan has demonstrated
that an alien may have several representatives successively, or may be
assisted by an attorney, other person, or organization whose
representation is not known to the Service.
Any person assisting the alien should not answer for the alien but
assist the alien in the latter's presentation of information supporting
a release decision. Whether the alien's case is before the district
director for review or the panel for an interview, the purpose of the
review process is to collect information. Because the decision maker
must evaluate the suitability of the alien for release, it is important
for the alien to address the district director or panel directly and be
able to speak freely. The district director and panel need to hear from
the alien rather than his or her representative.
Both the Executive Associate Commissioner through the HQPDU and the
district director have the authority to withdraw approval for release
and to revoke release or parole in the exercise of discretion. Reasons
for withdrawal of approval for release or revocation include the
Service's ability to obtain a travel document and remove the alien, the
alien's adverse conduct while awaiting release, the decision maker's
belief that the alien's actions while in the community pose a threat to
public safety, or any other circumstance that indicates that release
would no longer be appropriate. If the decision maker withdraws release
approval or revokes the alien's release or parole, the alien will
receive written notification specifying the reasons for the withdrawal
of approval for release or revocation of post-order release or parole.
This rule addresses Service procedures for conducting post-order
custody reviews. It does not circumscribe the exercise of the
Commissioner's authority to direct otherwise, as appropriate. Section
2.1. of title 8 of the Code of Federal Regulations delegates the
authority vested with the Attorney General to the Commissioner. Section
241(a)(3) of the Act vests authority with the Attorney General to
promulgate regulations governing supervision of aliens beyond the
removal period and section 241(c)(2) vests authority with the Attorney
General to grant stays of removal. Therefore, the Commissioner already
has the authority to release certain aliens from Service custody, issue
orders of supervision, and grant stays of removal. As directed by the
Commissioner or Deputy Commissioner, Service officials have authority
to release certain aliens from Service custody, issue orders of
supervision, and grant stays of removal. Therefore, this rule also
amends 8 CFR 241.4, 241.5 and 241.6 to reflect the concurrent authority
of the Commissioner and other designated Service officials.
What Other Changes Would This Rule Make?
This rule would terminate the existing procedure of appeal to the
Board of Immigration Appeals (Board) under 8 CFR 236.1 for an alien who
receives an unfavorable custody decision from the district director.
See Matter of Saelee, Interim Decision 3427 (BIA 2000). Since these
aliens have final orders of removal, all legal issues involving
removability (and any discretionary relief from removal, if available)
have been resolved through the Executive Office for Immigration Review
or through alternate procedures. Custody determinations at this stage
of the process involve separate and distinct issues, and the Service
has the knowledge and expertise required to make these custody
decisions.
The proposed rule for permanent procedures provides for an
automatic multi-tiered annual review process subsequent to the district
director's 90-day review as long as the alien remains in custody. The
detainee is assured a periodic and thorough review that does not depend
on the alien's request for a custody review or the filing of an appeal,
but is required at regular intervals by regulation. This review process
will ensure timely, scheduled reviews of each alien's case.
Accordingly, in order to implement a single comprehensive review
process for post-order custody cases, this proposed rule removes all
references to post-order detention from 8 CFR 236.1. As revised, 8 CFR
236.1 would govern detention issues only for aliens who have not yet
received a final removal order.
Any case pending before the Board on the effective date of this
rule when it is published as a final rule will be completed by the
Board. Should the alien decide to withdraw his or her appeal, the
Service shall continue to conduct custody reviews under the provisions
of this rule.
This proposed regulation also removes 8 CFR 212.13 and any
references to that section in 8 CFR 212.5 and 8 CFR 212.12. Section
212.13 established a single Departmental parole review for all
excludable Mariel Cubans who on the effective date of the regulation
were detained by virtue of the Attorney General's authority under the
Act and whose parole had been denied after the exhaustion of the review
procedures of 8 CFR 212.12. The Departmental Review Panels have
completed the review of the cases of detainees eligible for such
review. Thus, there is no longer a need for this regulation. This
action will not otherwise affect the Cuban Review Plan set forth in 8
CFR 212.12.
What Must the Alien Demonstrate to Show His or Her Suitability for
Release?
The alien must be able to show to the satisfaction of the decision
maker that he or she does not constitute a danger to public safety or a
flight risk pursuant to the criteria set forth in the proposed
regulation.
If a Travel Document Can Be Obtained, How Is the Custody Review
Process Affected?
Detention or release of aliens with a final order of removal is
tied to the Service's mission to enforce the immigration laws and
protect the interests of the United States, pending
[[Page 40543]]
the aliens' eventual removal from the United States. Accordingly,
district directors will continue to make efforts to obtain travel
documents even after review authority has transferred to the HQPDU.
Headquarters Detention and Deportation, Office of Field Operations will
also assist in the effort to secure travel documents.
The ability to secure a travel document by itself supports a
decision to continue detention pending the removal of the alien and
obviates the need for further custody review because it means the alien
can be deported. See 8 CFR 212.12(g)(1). Custody reviews may be
pretermitted in the case of an alien for whom travel documents are
available. Pending litigation, an administrative or judicial stay, or
other barrier to removal does not entitle an alien who can be
repatriated to release within the United States pending resolution of
the underlying action or event. Aliens whose removal is deferred under
8 CFR 208.17 may be considered for release.
Will There Be Special Release Conditions Under the Proposed Rule
and Will Work Authorization Be Granted?
Release conditions and work authorization for aliens subject to a
final order of removal will continue to be governed by 8 CFR 241.5. The
district director or HQPDU may wish to impose conditions, in addition
to those enumerated by regulation, such as that the alien obey all
laws, not associate with any persons involved in criminal activity, not
associate with anyone convicted of a felony without permission, not
carry firearms or other dangerous weapons, or such other conditions as
the decision-maker deems appropriate. Under 8 CFR 241.5(c), a grant of
work authorization is discretionary but requires the decision maker to
make an initial finding that the alien cannot be immediately removed
because no country will accept the alien or that the alien's removal is
impracticable or contrary to the public interest.
Sponsorship and evidence of financial support may be required as a
precursor to release under the proposed rule. The Service has
determined that appropriate sponsorship is in the best interest of the
alien and community when an alien is approved for release pending
repatriation. See, e.g., Fernandez-Roque v. Smith, 734 F. 2d 576 (11th
Cir. 1984). Although the Service reserves the authority to impose
conditions of release, including appropriate sponsorship, this rule
does not compel the Government to tailor existing programs to the needs
of individual aliens or to create or fund additional programs if
suitable sponsorship is not located or available for an alien.
If an alien is detained in a facility that does not provide any
rehabilitative programs, no negative inference respecting release will
be drawn against the alien in making a custody determination based on
the fact that the alien did not participate in such programs. However,
if the facility has such programs available to the alien but the alien
refuses to participate, that fact may be considered by the decision-
maker.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This rule would
provide a more uniform review process governing the detention of
criminal, inadmissible, and other aliens who have received a final
administrative removal order but whose departure has not been effected
within the 90-day removal period. This rule does not affect small
entities as that term is defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice, to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. Accordingly, this rule has been
submitted to the Office of Management and Budget for review.
Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.
List of Subjects
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 241
Administrative practice and procedure, Aliens, Immigration.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
1. The authority citation for part 212 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252, 8 CFR part 2.
Sec. 212.5 [Amended]
2. Section 212.5(f) is amended by revising the phrase
``Secs. 212.12 and 212.13'' to read ``Sec. 212.12.;''
Sec. 212.12 [Amended]
3. Section 212.12 is amended by:
a. In paragraph (b) introductory text, revising the phrase ``Except
as provided in Sec. 212.13, the authority'' to read ``The authority;''
and by
b. In paragraph (g)(2), removing the word ``either'' and removing
the phrase ``or Sec. 212.13, whichever is later.''
[[Page 40544]]
Sec. 212.13 [Removed]
4. Remove Sec. 212.13.
PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
5. The authority citation for part 236 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362;
sec. 303(b) of Div. C of Pub. L. No. 104-208; 8 CFR part 2.
6. Section 236.1 is amended by:
a. Removing the last sentence in paragraph (d)(1);
b. Revising paragraph (d)(2); and by
c. Removing paragraph (d)(3)(iii), to read as follows:
Sec. 236.1 Apprehension, custody, and detention.
* * * * *
(d) * * *
(2) Application to the district director. After expiration of the
7-day period in paragraph (d)(1) of this section, the respondent may
request review by the district director of the conditions of his or her
release.
* * * * *
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
7. The authority citation for part 241 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1223, 1227, 1251, 1253, 1255, and
1330; 8 CFR part 2.
8. Section 241.4 is revised to read as follows:
Sec. 241.4 Continued detention of inadmissible, criminal, and other
aliens beyond the removal period.
(a) Scope. The authority to continue an alien in custody or grant
release or parole under sections 241(a)(6) and 212(d)(5)(A) of the Act
shall be exercised by the Commissioner or Deputy Commissioner, as
follows: Except as otherwise directed by the Commissioner or her
designee, the Executive Associate Commissioner Field Operations or the
district director may continue an alien in custody beyond the removal
period described in section 241(a)(1) of the Act pursuant to the
procedures described in this section. Except as provided in paragraph
(b)(2) of this section, the provisions of this section apply to custody
determinations for the following groups of aliens:
(1) An alien who is inadmissible under section 212 of the Act,
including an excludable alien convicted of one or more aggravated
felony offenses and subject to the provisions of section 501(b) of the
Immigration Act of 1990, Public Law 101-649 (codified at 8 U.S.C.
1226(e)(1) through (3)(1994));
(2) An alien who is removable under section 237(a)(1)(C) of the
Act;
(3) An alien who is removable under sections 237(a)(2) or 237(a)(4)
of the Act, including deportable criminal aliens whose cases are
governed by former section 242 of the Act prior to amendment by the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Public Law 104-208, Div. C; and
(4) An alien who is removable under any other section of the Act,
including an alien granted withholding or deferral of removal under 8
CFR part 208, may be detained beyond the removal period if the decision
maker determines that the alien is unlikely to comply with the removal
order or is a risk to the community.
(b) Applicability to particular aliens--(1) Motions to reopen. An
alien who has filed a motion to reopen immigration proceedings for
consideration of relief from removal, including withholding or deferral
of removal pursuant to 8 CFR 208.16 or 208.17, shall remain subject to
the provisions of this section unless the motion to reopen is granted.
Section 236 of the Act and 8 CFR 236.1 govern custody determinations
for aliens who are in pending immigration proceedings before the
Executive Office for Immigration Review.
(2) Parole for certain Cuban nationals. The review procedures in
this section do not apply to any Mariel Cuban who is being detained by
the Service pending an exclusion or removal proceeding, or pending his
or her return to Cuba or removal to another country. Instead, the
determination whether to release on parole, or to revoke such parole,
or to detain, shall in the case of a Mariel Cuban be governed by the
procedures in 8 CFR 212.12.
(c) Delegation of authority. The Attorney General's statutory
authority to make custody determinations under sections 241(a)(6) and
212(d)(5)(A) of the Act when there is a final order of removal, is
delegated as follows:
(1) District directors. The initial custody determination described
in paragraph (h) of this section and any further custody determination
concluded in the 3-month period immediately following expiration of the
90-day removal period, subject to the provisions of paragraph (c)(2) of
this section, will be made by the district director having jurisdiction
over the alien. The district director shall maintain appropriate files
respecting each detained alien reviewed for possible release, and shall
have authority to determine the order in which the cases shall be
reviewed, and to coordinate activities associated with these reviews in
his or her respective district.
(2) Headquarters Post-Order Detention Unit (HQPDU). For any alien
the district director refers for further review after the 90-day
removal period, or any alien who has not been released or repatriated
by the expiration of the 3-month period after the 90-day review, all
further custody determinations will be made by the Executive Associate
Commissioner, acting through the HQPDU.
(3) The HQPDU review plan. The Executive Associate Commissioner
shall appoint a Director of the HQPDU. The Director of the HQPDU shall
have authority to establish and maintain appropriate files respecting
each detained alien to be reviewed for possible release, to determine
the order in which the cases shall be reviewed, and to coordinate
activities associated with these reviews.
(4) Additional delegation of authority. All references to the
Executive Associate Commissioner and district director in this section
shall be deemed to include any person or persons (including a
committee) designated in writing by the district director or Executive
Associate Commissioner to exercise powers under this section.
(d) Custody determinations. A copy of any decision by the district
director or Executive Associate Commissioner to release or to detain an
alien shall be provided to the detained alien. A decision to retain
custody shall briefly set forth the reasons for the continued
detention. A decision to release may contain such special conditions as
are considered appropriate in the opinion of the Service.
Notwithstanding any other provisions of this section, there is no
appeal from the district director's or the Executive Associate
Commissioner's decision.
(1) Showing by the alien. The district director or the Executive
Associate Commissioner may release an alien if the alien demonstrates
to the satisfaction of the Attorney General or her designee that his or
her release will not pose a danger to the community or to the safety of
other persons or to property or a significant risk of flight pending
such alien's removal from the United States. The district director or
the Executive Associate Commissioner may also, in accordance with the
procedures and consideration of the factors set forth in this section,
continue in custody any alien described in paragraphs (a) and (b)(1) of
this section.
[[Page 40545]]
(2) Service of decision and other documents. All notices,
decisions, or other documents in connection with the custody reviews
conducted under this section by the district director or Executive
Associate Commissioner shall be served on the alien, in accordance with
8 CFR 103.5a, by the Service district office having jurisdiction over
the alien. Release documentation (including employment authorization if
appropriate) shall be issued by the district office having jurisdiction
over the alien in accordance with the custody determination made by the
district director or by the Executive Associate Commissioner. Copies of
all such documents will be retained in the alien's record and forwarded
to the HQPDU.
(3) Alien's representative. The alien's representative is required
to complete an INS Form G-28, Notice of Entry of Appearance as Attorney
or Representative, at the time of the interview or prior to reviewing
the detainee's records. The Service will forward by regular mail a copy
of any notice or decision that is being served on the alien only to the
attorney or representative of record. The alien remains responsible for
notification to any other individual providing assistance to him or
her.
(e) Criteria for release. Before making any recommendation or
decision to release a detainee, a majority of the Review Panel members,
or the Director of the HQPDU in the case of a record review, must
conclude that:
(1) Travel documents for the alien are not available or, in the
opinion of the Service, immediate removal, while proper, is otherwise
not practicable or not in the public interest;
(2) The detainee is presently a non-violent person;
(3) The detainee is likely to remain nonviolent;
(4) The detainee is not likely to pose a threat to the community
following his or her release;
(5) The detainee is not likely to violate the conditions of his or
her release; and (6) The detainee does not pose a significant flight
risk.
(f) Factors for consideration. The following factors should be
weighed in considering whether to recommend further detention or
release of a detainee:
(1) The nature and number of disciplinary infractions or incident
reports received when incarcerated or while in Service custody;
(2) The detainee's criminal conduct and criminal convictions,
including consideration of the nature and severity of the alien's
convictions, sentences imposed and time actually served, probation and
criminal parole history, evidence of recidivism, and other criminal
history;
(3) Any available psychiatric and psychological reports pertaining
to the detainee's mental health;
(4) Evidence of rehabilitation including institutional progress
relating to participation in work, educational, and vocational
programs, where available;
(5) Favorable factors, including ties to the United States such as
the number of close relatives residing here lawfully;
(6) Prior immigration violations and history;
(7) The likelihood that the alien is a significant flight risk or
may abscond to avoid removal, including history of escapes, failures to
appear for judicial or other proceedings, absence without leave from
any halfway house or sponsorship program, and other defaults; and
(8) Any other information that is probative of whether the alien is
likely to adjust to life in a community, is likely to engage in future
acts of violence, is likely to engage in future criminal activity, is
likely to pose a danger to the safety of himself or herself or to other
persons or to property, or is likely to violate the conditions of his
or her release from immigration custody pending removal from the United
States.
(g) Travel documents and docket control for aliens continued in
detention beyond the removal period--(1) In general. The district
director shall continue to undertake appropriate steps to secure travel
documents for the alien both before and after the expiration of the
removal period. If the district director is unable to secure travel
documents within the removal period, he or she shall apply for
assistance from Headquarters Detention and Deportation, Office of Field
Operations. The district director shall promptly advise the HQPDU
Director when travel documents are obtained for an alien whose custody
is subject to review by the HQPDU. The Service's determination that
receipt of a travel document is likely may by itself warrant
continuation of detention pending the removal of the alien from the
United States.
(2) Availability of travel document. In making a custody
determination, the district director and the Director of the HQPDU
shall consider the ability to obtain a travel document for the alien.
If it is established at any stage of a custody review that, in the
judgment of the Service, travel documents can be obtained, or such
document is forthcoming, the alien will not be released unless
immediate removal is not practicable or in the public interest.
(3) Removal. The Service will not conduct a custody review under
these procedures when the Service notifies the alien that it is ready
to execute an order of removal.
(4) Alien's cooperation. Release will be denied in accordance with
section 241(a)(1)(C) of the Act if the alien fails or refuses to
cooperate in the process of obtaining a travel document.
(h) District director's custody review procedures. The district
director's custody determination will be developed in accordance with
the following procedures:
(1) Record review. The district director will conduct the initial
custody review. For aliens described in paragraphs (a) and (b)(1) of
this section, the district director will conduct a file review prior to
the expiration of the 90-day removal period. This initial post-order
custody review will consist of a review of the alien's records, and any
written information submitted in English to the district director by or
on behalf of the alien. However, the district director may in his or
her discretion schedule a personal or telephonic interview with the
alien as part of this custody determination. The district director may
also consider any other relevant information relating to the alien or
his or her circumstances and custody status.
(2) Notice to alien. The district director will provide written
notice to the detainee approximately 30 days in advance of the pending
record review so that the alien may submit information in writing in
support of his or her release. The alien may be assisted by a person of
his or her choice, subject to the institution and panel's discretion,
in preparing or submitting information in response to the district
director's notice. Such assistance shall be at no expense to the
Government. If the alien or his or her representative requests
additional time to prepare materials beyond the time when the district
director expects to conduct the file review, such a request will
constitute a waiver of the requirement that the review occur prior to
the expiration of the removal period.
(3) Factors for consideration. The district director's review will
include but is not limited to consideration of the factors described in
paragraph (f) of this section. Before making any decision to release a
detainee, the district director must be able to reach the conclusions
set forth in paragraph (e) of this section.
(4) District director's decision. The district director will notify
the alien in writing that he or she is to be released from custody, or
that he or she will be
[[Page 40546]]
continued in detention pending repatriation or further review of his or
her custody status.
(5) District office staff. The district director may delegate the
authority to conduct the custody review, develop recommendations, or
render the custody or release decision to those persons directly
responsible for detention within his or her district. This includes the
deputy district director, the assistant director for detention and
deportation, the officer-in-charge of a detention center, persons
acting in such capacities, or such other persons as the district
director may designate from the professional staff of the Service.
(i) Determinations by the Executive Associate Commissioner.
Determinations by the Executive Associate Commissioner to release or
retain custody of aliens shall be developed in accordance with the
following procedures.
(1) Review panels. The HQPDU Director shall designate a panel or
panels to make recommendations to the Executive Associate Commissioner.
A Review Panel shall, except as otherwise provided, consist of two
persons. Members of a Review Panel shall be selected from the
professional staff of the Service. All recommendations by the two
member Review Panel shall be unanimous. If the vote of the two-member
Review Panel is split, it shall adjourn its deliberations concerning
that particular detainee until a third Review Panel member is added.
The third member of any Review Panel shall be the Director of the HQPDU
or his or her designee. A recommendation by a three-member Review Panel
shall be by majority vote.
(2) Record review. Initially, and at the beginning of each
subsequent review, the HQPDU Director or a Review Panel shall review
the alien's file. Upon completion of this record review, the HQPDU
Director or the Review Panel may issue a written recommendation that
the alien be released and reasons therefore.
(3) Personal interview. (i) If the HQPDU Director does not accept a
panel's recommendation to grant release after a record review, or if
the alien is not recommended for release, a Review Panel shall
personally interview the detainee. The scheduling of such interviews
shall be at the discretion of the HQPDU Director. The HQPDU Director
will provide a translator if he or she determines that such assistance
is appropriate.
(ii) The alien may be accompanied during the interview by a person
of his or her choice, subject to the institution's and the panel's
discretion, who is able to attend at the time of the scheduled
interview. Such assistance shall be at no expense to the Government.
The alien may submit to the Review Panel any information, in English,
that he or she believes presents a basis for his or her release.
(4) Alien's participation. Every alien shall respond to questions
or provide other information when requested to do so by Service
officials for the purpose of carrying out the provisions of this rule.
(5) Panel recommendation. Following completion of the interview and
its deliberations, the Review Panel shall issue a written
recommendation that the alien be released or remain in custody pending
removal or further review. This written recommendation shall include a
brief statement of the factors that the Review Panel deems material to
its recommendation.
(6) Determination. The Executive Associate Commissioner shall
consider the recommendation and appropriate file material and issue a
custody determination, in the exercise of discretion under the
standards of this section. The Executive Associate Commissioner's
review will include but is not limited to consideration of the factors
described in paragraph (f) of this section. Before making any decision
to release a detainee, the Executive Associate Commissioner must be
able to reach the conclusions set forth in paragraph (e) of this
section. The Executive Associate Commissioner is not bound by the
panel's recommendation.
(j) Conditions of release--(1) In general. The district director or
Executive Associate Commissioner may in his or her discretion impose
such conditions or special conditions on release as the Service
considers appropriate in an individual case or cases, including but not
limited to the conditions of release noted in Sec. 212.5(c) of this
chapter and Sec. 241.5. An alien released under this section must abide
by the release conditions specified by the Service in relation to his
or her release or sponsorship.
(2) Sponsorship. The district director or Executive Associate
Commissioner may, in the exercise of discretion, condition release on
placement with a close relative who agrees to act as a sponsor, such as
a parent, spouse, child, or sibling who is a lawful permanent resident
or a citizen of the United States, or may condition release on the
alien's placement or participation in an approved halfway house, mental
health project, or community project when, in the opinion of the
Service, such condition is warranted. No detainee may be released until
sponsorship, housing, or other placement has been found for the
detainee, if ordered, including but not limited to evidence of
financial support.
(3) Employment authorization. The district director and Executive
Associate Commissioner may in their discretion grant employment
authorization under the same conditions set forth in Sec. 241.5(c) for
aliens released under an order of supervision.
(4) Withdrawal of release approval. The district director or
Executive Associate Commissioner may, in their discretion, withdraw
approval for release of any detained alien prior to release when, in
the decision maker's opinion, the conduct of the detainee, or any other
circumstance, indicates that release would no longer be appropriate.
(k) Timing of reviews. The timing of reviews shall be in accordance
with the following guidelines:
(1) District director. (i) Prior to the expiration of the 90-day
removal period, the district director shall conduct a custody review
for an alien described in paragraphs (a) and (b)(1) of this section
where the alien's removal, while proper, cannot be accomplished because
no country will accept the alien, or removal of the alien prior to
expiration of the removal period is impracticable or contrary to the
public interest. As provided in paragraph (h)(4) of this section, the
district director will notify the alien in writing that he or she is to
be released from custody, or that he or she will be continued in
detention pending repatriation or further review of his or her custody
status.
(ii) When release is denied pending the alien's repatriation, the
district director in his or her discretion may retain responsibility
for custody determinations for up to 3 months after expiration of the
90-day removal period, during which time the district director may
conduct such additional review of the case as he or she deems
appropriate. The district director may release the alien if he or she
is not removed within the 3-month period following the expiration of
the 90-day removal period, in accordance with paragraphs (e), (f), and
(j) of this section, or the district director may refer the alien to
the HQPDU for further custody review.
(2) HQPDU reviews--(i) District director referral for further
review. When the district director refers a case to the HQPDU for
further review, as provided in paragraph (c)(2) of this section,
authority over the custody determination transfers to the Executive
Associate Commissioner, according to procedures established by the
HQPDU. The Service will provide the alien with approximately 30 days
notice of this
[[Page 40547]]
further review, which will ordinarily be conducted by the expiration of
the removal period or as soon thereafter as practicable.
(ii) District director retains jurisdiction. When the district
director has advised the alien at the 90-day review as provided in
paragraph (h)(4) of this section that he or she will remain in custody
pending repatriation, and the alien is not removed within 3 months of
the district director's decision, authority over the custody
determination transfers from the district director to the Executive
Associate Commissioner. The initial HQPDU review will ordinarily be
conducted at the expiration of the 3-month period after the 90-day
review or as soon thereafter as practicable. The Service will provide
the alien with approximately 30 days notice of that review.
(iii) Continued detention cases. A subsequent review shall
ordinarily be commenced for any detainee within approximately one year
of a refusal by the Executive Associate Commissioner to grant release.
Not more than once every three months in the interim between annual
reviews, the alien may submit a written request to the HQPDU for
release consideration based on a proper showing of a material change in
circumstances since the last annual review. The HQPDU shall respond to
the alien's request in writing within approximately 90 days.
(iv) Review scheduling. Reviews will be conducted within the time
periods specified in paragraphs (k)(1)(i), (k)(2)(i), (k)(2)(ii), and
(k)(2)(iii) of this section or as soon as possible thereafter, allowing
for any unforeseen circumstances or emergent situation.
(v) Discretionary reviews. The HQPDU Director, in his or her
discretion, may schedule a review of a detainee at shorter intervals
when he or she deems such review to be warranted.
(3) Postponement of review. In the case of an alien who is in the
custody of the Service, the district director or the HQPDU Director
may, in his or her discretion, suspend or postpone the custody review
process if such detainee's prompt deportation is practicable and
proper, or for other good cause. The decision and reasons for the delay
shall be documented in the alien's file. Reasonable care will be
exercised to assure that the alien's case is reviewed once the reason
for delay is remedied or if the alien is not removed from the United
States as anticipated at the time review was suspended or postponed.
(4) Transition provisions. (i) The provisions of this section apply
to cases that have already received the 90-day review. If the alien's
last review under the procedures set out in the Executive Associate
Commissioner memoranda entitled Detention Procedures for Aliens Whose
Immediate Repatriation is Not Possible or Practicable, February 3,
1999; Supplemental Detention Procedures, April 30, 1999; Interim
Changes and Instructions for Conduct of Post-order Custody Reviews,
August 6, 1999, was a file review and the alien remains in custody, the
HQPDU will conduct a custody review within 6 months of that review. If
the alien's last review included an interview, the HQPDU review will be
scheduled one year from the last review. These reviews will be
conducted pursuant to the procedures in paragraph (i) of this section,
within the time periods specified in this paragraph or as soon as
possible thereafter, allowing for resource limitations, unforeseen
circumstances, or an emergent situation.
(ii) Any case pending before the Board on the effective date (after
this rule is published as a final rule) will be completed by the Board.
If the Board affirms the district director's decision to continue the
alien in detention, the next scheduled custody review will be conducted
one year after the Board's decision in accordance with the procedures
in paragraph (i) of this section.
(l) Revocation of release--(1) Violation of conditions of release.
Any alien described in paragraphs (a) or (b)(1) of this section who has
been released under an order of supervision or other conditions of
release who violates the conditions of release may be returned to
custody. Any such alien who violates the conditions of an order of
supervision is subject to the penalties described in section 243(b) of
the Act. Upon revocation, the alien will be notified of the reasons for
revocation of his or her release or parole.
(2) Determination by the Service. The Executive Associate
Commissioner shall have authority, in the exercise of discretion, to
revoke release and return to Service custody an alien previously
approved for release under the procedures in this section. A district
director may also revoke release of an alien when, in the district
director's opinion, revocation is in the public interest and
circumstances do not reasonably permit referral of the case to the
Executive Associate Commissioner. Release may be revoked in the
exercise of discretion when, in the opinion of the revoking official:
(i) The purposes of release have been served;
(ii) The alien violates any condition of release;
(iii) It is appropriate to enforce a removal order or to commence
removal proceedings against an alien; or
(iv) The conduct of the detainee, or any other circumstance,
indicates that release would no longer be appropriate.
(3) Timing of review when release is revoked. The HQPDU Director
shall schedule the review process in the case of an alien whose
previous release or parole from immigration custody pursuant to a
decision of either the district director or the Executive Associate
Commissioner under the procedures in this section has been or is
subject to being revoked. The normal review process will commence with
notification to the alien of a file review and scheduling of an
interview, which will ordinarily be expected to occur within
approximately 3 months after release is revoked. Thereafter, custody
reviews will be conducted annually under the provisions of paragraphs
(i), (j), and (k) of this section.
9. Section 241.5 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 241.5 Conditions of release after removal period.
(a) Order of supervision. An alien released pursuant to Sec. 241.4
shall be released pursuant to an order of supervision. The
Commissioner, Deputy Commissioner, Executive Associate Commissioner
Field Operations, regional director, district director, acting district
director, deputy district director, assistant district director for
investigations, assistant district director for detention and
deportation, or officer-in-charge may issue Form I-220B, Order of
Supervision. The order shall specify conditions of supervision
including, but not limited to, the following:
* * * * *
10. Section 241.6 is revised to read as follows:
Sec. 241.6 Administrative stay of removal.
(a) Any request of an alien under a final order of deportation or
removal for a stay of deportation or removal shall be filed on Form I-
246, Stay of Removal, with the district director having jurisdiction
over the place where the alien is at the time of filing. The
Commissioner, Deputy Commissioner, Executive Associate Commissioner
Field Operations, regional director, or district director, in his or
her discretion and in consideration of factors such as are listed in
Sec. 212.5 of this chapter and section 241(c) of the Act, may grant a
stay of removal or deportation for such time and under such conditions
as he or she may deem appropriate. Neither the request nor the failure
to receive notice
[[Page 40548]]
of disposition of the request shall delay removal or relieve the alien
from strict compliance with any outstanding notice to surrender for
deportation or removal.
(b) Denial by the Commissioner, Deputy Commissioner, Executive
Associate Commissioner Field Operations, regional director, or district
director of a request for a stay is not appealable, but such denial
shall not preclude an immigration judge or the Board from granting a
stay in connection with a motion to reopen or a motion to reconsider as
provided in 8 CFR part 3.
(c) The Service shall take all reasonable steps to comply with a
stay granted by an immigration judge or the Board. However, such a stay
shall cease to have effect if granted (or communicated) after the alien
has been placed aboard an aircraft or other conveyance for removal and
the normal boarding has been completed.
Dated: June 23, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-16560 Filed 6-29-00; 8:45 am]