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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly
[Federal Register: December 21, 2000 (Volume 65, Number 246)]
[Rules and Regulations]
[Page 80281-80298]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de00-3]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 212, 236, and 241
[INS No. 2029-00; AG Order No. 2349-2000]
RIN 1115-AF82
Detention of Aliens Ordered Removed
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This rule amends 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 order of
removal, deportation, or exclusion but whose departure has not been
effected within the 90-day removal period. Such a process is necessary
to ensure periodic custody reviews for aliens detained beyond the
removal period and to provide for consistency in decision-making.
Because the Service is developing a specialized, ongoing administrative
review process for these custody determinations, this rule eliminates
the appellate role of the Board of Immigration Appeals (Board) in post-
final order custody determinations. This rule also amends 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.
[[Page 80282]]
DATES: This rule is effective December 21, 2000.
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 Final 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 (ADAA), Public Law 100-690, and the Immigration Act of 1990
(Immact), Public Law 101-649. Congress extended these restrictions to
other categories of crimes in the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Public Law 104-132, and the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Public Law 104-208. Pursuant to these amendments, the Service's
continued detention of aliens convicted of aggravated felonies has not
been subject to the statutory time limits that apply in the case of
certain noncriminal aliens. Under section 241(a)(6) of the Immigration
and Nationality Act (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 statutory removal period set forth in section 241(a)(1) of
the Act, 8 U.S.C. 1231(a)(1), including aliens determined by the
Attorney General to constitute a risk to the community or to be
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 90-day removal period.
The Department of Justice (Department) has determined that a
separate custody review process is appropriate for aliens who are
detained beyond the 90-day removal period. This rule permits a
comprehensive and fair review of such post-order detention by
establishing an automatic, centralized, and multi-layered process to
determine whether detainees 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 concerns arising from
another country's unjustified delay or refusal to accept the return of
its nationals. This provision also applies to criminal aliens granted
withholding or deferral of removal for whom removal to a third country
is impractical.
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 assists the decision-maker in determining whether an
alien is an appropriate candidate for release from custody after the
expiration of the removal period. On December 21, 2000, these
procedures will supersede the Pearson memoranda. The new procedures are
modeled after those governing the Mariel Cubans at 8 CFR 212.12 and
consist of a records review, 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 conducted pursuant to 8 CFR
212.12, the review process is similar for both groups of aliens.
On June 30, 2000, the Department published in the Federal Register
at 65 FR 40540 a proposed rule with request for comments to implement a
permanent, periodic custody review process for aliens whose removal has
not been effected at the expiration of the 90-day removal period
pursuant to section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). The
initial comment period was for 30 days and expired on July 31, 2000.
However, in response to several commenters' requests for an extension,
the comment period was extended for 10 days until August 11, 2000.
The Department received numerous public comments recommending
substantive modifications to the proposed rule. Many of the comments
overlap or endorse the submissions of other commenters. For this
reason, the Service will address the comments by issue rather than by
reference to the individual comments.
After careful consideration of all comments, the Department will
retain the basic structure of the proposed rule, with some
modifications. This rule implements an important program in furtherance
of congressional and executive policy to ensure the removal of aliens
who commit serious crimes in this country and to protect the safety of
our citizens and lawful residents against dangerous individuals or
those posing a flight risk.
Constitutionality and Statutory Authority
Numerous commenters expressed the view that the proposed rule is
not authorized by statute or violates the Constitution of the United
States. Post-order detention cases are the subject of on-going
litigation. Two courts of appeals have upheld the Attorney General's
authority to continue detention after the removal period. See Duy Dac
Ho v. Joseph Greene, 204 F.3d 1045 (10th Cir. 2000); Zadvydas v.
Underdown, 185 F.3d 279 (5th Cir. 1999), cert. granted, 121 S.Ct. 297
(2000).
The Ninth Circuit held, however, in Ma v. Reno, 208 F.3d 815, 822
(9th Cir. 2000), cert. granted, 121 S.Ct. 297 (2000), that detention
may not be extended more than a ``reasonable time'' beyond the
statutory removal period. The United States Supreme Court recently
granted certiorari in the Zadvydas and Ma cases to resolve the
disagreements in the courts of appeals.
In Ho, the Tenth Circuit upheld the detention of inadmissible and
deportable criminal aliens under 8 U.S.C. 1231(a)(6) on statutory and
constitutional grounds. 204 F.3d at 1055-1060. The court held, among
other things, that section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6),
expressly allows the Attorney General, in her discretion, to continue
detaining certain aliens, including aliens who she has determined would
pose a risk of danger or flight if released, beyond the 90-day removal
period while efforts are being made to remove them from the United
States. Id. at 1057. The court declined to impose a time limit on
detention, stating that it will not ``substitute its
[[Page 80283]]
judgment for that of Congress by reading into the statute a time limit
that is not included in the plain language of the statute.'' Id. at
1057.
Like the Tenth Circuit, the Fifth Circuit, in Zadvydas, also
rejected a constitutional challenge to continued detention under
section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). 185 F.3d at 294-97.
The Fifth Circuit did not question the statutory authority of the
Attorney General to detain a criminal alien beyond the 90-day period
where the country to which the alien had been ordered removed declined
to accept his return in the near future, and it held that the continued
detention of a dangerous criminal alien in these circumstances does not
violate substantive or procedural due process. The court analyzed the
constitutional question on the premise that the detained alien is able
to obtain periodic review of his detention under Service regulations,
see 185 F.3d at 287-88 & n.9, and that the availability of such
periodic review precluded characterization of the alien's detention as
indefinite or permanent. Id. at 291 (citations omitted). While
acknowledging that a deportable resident alien is entitled to greater
procedural due process rights during the removal proceedings themselves
than those accorded an excludable alien, the court in Zadvydas
concluded that once a removal order has become final and the only act
remaining to be carried out is the actual expulsion of the alien, no
distinction exists between the constitutional rights of former resident
aliens and those of excludable aliens. Id. at 294-97. Therefore, the
continued detention of a deportable criminal alien who cannot be
immediately removed under section 241(a)(6) of the Act, 8 U.S.C.
1231(a)(6), does not violate substantive due process where the
government has an interest in protecting society from further criminal
activity by the alien and in ensuring that he or she does not flee and
thereby frustrate his or her eventual removal. Id. at 296-97.
The Ninth Circuit has interpreted the detention statute in a manner
that presents a direct conflict with the decisions of the Tenth and
Fifth Circuits. In Ma, the court stated that it could avoid deciding
the constitutional issues by construing the statute to prohibit
detention, in many cases, beyond the 90-day removal period. While
recognizing that section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6),
unambiguously authorizes the Attorney General to continue criminal
aliens in custody ``beyond the removal period,'' the court nevertheless
found that the statute does not specify a particular length of time for
detention and therefore can be construed to permit detention ``only for
a reasonable time beyond the statutory removal period.'' 208 F.3d at
821-22, 827. In Ma itself, because it concluded that there was not a
reasonable likelihood that the alien would be returned to Cambodia in
the reasonably foreseeable future, the court held that the Service was
required to release him immediately upon the expiration of the
statutory removal period. In reaching that result, the court relied on
several Ninth Circuit decisions from the 1920's and 1930's interpreting
a provision in the Immigration Act of 1917 and on international law.
Id. at 822, 827-30. Because it concluded that detention beyond 90 days
is not statutorily authorized in Ma's case, the court did not address
the substantive and procedural constitutional issues that were
addressed in Ho and Zadvydas.
In formulating the proposed custody review procedure, the
Department did not follow the Ninth Circuit's statutory ruling because
it is not supported by the statute's text or history. The Attorney
General construes section 241(a)(6) to authorize her to continue to
detain, beyond the 90-day removal period, criminal aliens and other
aliens whose release would present a risk of harm to the community or
of flight by the alien. That interpretation is supported by the text of
section 241(a)(6), which unambiguously authorizes the Attorney General
to detain the specified aliens ``beyond the removal period'' and
imposes no time limit; by the related detention provisions in sections
235(c)and 241(a)(2), which make clear that granting the Attorney
General even the discretion to release criminal aliens after a notice
to appear has been filed is an exception to a general statutory rule of
mandatory detention of such aliens; by section 241(a)(7), which makes
clear that when Congress wanted to create a special exception for
aliens whose countries will not immediately accept their return it did
so explicitly (see also IIRIRA Secs. 303(b)(3)(B)(ii) and 307(a))
(referring to situations in which countries will not accept return of
their nationals); and by the statutory history of the amendments to the
Act leading up to the enactment of section 241(a)(6) in 1996, as well
as the legislative history of that enactment itself.
The Attorney General's authority has been sustained by the Third,
Fifth, and Tenth Circuits, which have upheld the constitutionality of
post-order detention under section 241(a)(6)of the Act, 8 U.S.C.
1231(a)(6), and the Pearson procedures. According to these courts,
detention under section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), is
not unconstitutional where the alien's removal cannot be effected
immediately, the alien is determined to be a danger or a flight risk if
released, and he or she is afforded a periodic and meaningful
opportunity to seek release from custody. See, e.g., Ho, 204 F.3d at
1057-60; Ngo v. INS, 192 F.3d 390, 397 (3rd Cir. 1999); Zadvydas, 185
F.3d at 287-88. The final rule is structured to afford this type of
review. It provides a custody review procedure that is comparable to
the Pearson review scheme that two circuit courts have endorsed, see
Ngo, 192 F.3d at 395-98; Zadvydas, 185 F.3d at 297, and the Mariel
Cuban Plan that the Ninth Circuit approved in Barrera-Echavarria v.
Rison, 44 F.3d 1441, 1448 (9th Cir. 1995) (en banc). It has the
procedural mechanisms that those courts have sustained against
procedural due process challenges.
Another commenter felt that the final rule should express
commitment to protecting and restoring the alien's liberty.
Notwithstanding their physical presence in the United States, aliens
under final orders of removal have no greater constitutional rights
with respect to their application to be released from custody than
excludable aliens seeking admission to the United States for the first
time. Ho, 204 F.3d at 1058-59; Zadvydas, 185 F.3d at 294-95. The
government has a compelling interest in expelling aliens under final
removal orders, just as it does excludable aliens. Ho, 204 F.3d at
1059; Zadvydas, 185 F.3d at 296. Furthermore, the failure of another
government to agree to the return of its nationals does not divest the
United States of its sovereign authority to enforce its immigration
laws, nor does it confer on the alien a right to be released back into
the United States. See Jean v. Nelson, 727 F.2d 957, 975 (11th Cir.
1984) (en banc), aff'd, 472 U.S. 846 (1985). To conclude otherwise
would mean that an alien who has been ordered removed from the United
States nonetheless enjoys a constitutional right to release from
custody that is greater than what the alien had when he or she was
still in proceedings. Zadvydas, 185 F.3d at 296.
Finally, a commenter opined that Sec. 241.4(k)(1)(ii) is illegal
and should be deleted in its entirety, as well as any other reference
in the rule to the additional three-month period that the district
director may retain detention authority after the expiration of the
removal period. Section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6),
plainly authorizes the Attorney General to exercise her discretion in
determining whether to retain custody of criminal
[[Page 80284]]
aliens beyond the 90-day removal period. See H.R. Rep. No. 104-469,
pt.l, at 234 (1996). The Department, while carefully considering the
views of the commenters, has determined that the government's statutory
interpretation is consistent with the statutory text and history and
will retain the basic structure of the proposed rule.
Scope
One commenter suggested changes to proposed Secs. 241.4(a) and
(a)(4) that would circumscribe the Attorney General's authority
contrary to the express language of section 241(a)(6) of the Act, 8
U.S.C. 1231(a)(6). The commenter suggested inserting language that
detention be permissible only if necessary to effectuate removal. The
Department declines to limit the Attorney General's authority to
exercise her discretion in the manner suggested by the commenter.
Some commenters objected to proposed Sec. 241.4(a)(4) because the
scope of the rule includes an alien who has been granted withholding or
deferral of removal under 8 CFR 208. The nature of the comments suggest
that there may be some confusion over the reference to withholding and
deferral of removal in proposed Sec. 241.4(a)(4). This section has been
revised and paragraphs 241.4(a) and (b)(3) have been added to the final
rule to clarify the applicability of these custody procedures.
Many commenters suggested that the rule should create a presumption
of immediate release in the case of an alien granted withholding of
removal under either section 241(b)(3) of the Act or under the
Convention Against Torture. The Department declines to adopt this
suggestion, as the decision to detain an individual granted withholding
or deferral of removal requires a fact-specific analysis consistent
with the provisions of section 241 of the Act. A grant of withholding
or deferral of removal is limited to the specific country or countries
designated in the order and does not protect an individual from removal
to a third country. Moreover, a grant of withholding or deferral of
removal does not constitute a grant of admission to the United States;
decisions regarding detention and release are subject to section 241 of
the Act. With respect to deferral of removal, 8 CFR 208.17(c)
specifically provides that persons granted deferral who are otherwise
subject to detention continue to be governed by section 241 of the Act.
The grant of withholding or deferral is relevant, however, and the
decision-maker may consider the grant of protection in reaching a
custody determination.
Board Review and Procedural Safeguards
Many commenters expressed concerns over the adequacy of procedural
safeguards in the proposed rule and objected to the elimination of
Board review of the Service's custody determinations. One commenter
opined that the Board ensures consistency of decision making through
publication of decisions and suggested that if Board review is
eliminated by the final rule, then the Service should publish precedent
decisions made available to the public to inform and bind decision-
makers in subsequent cases. Further, the commenter noted the
regulations should specify that the decisions are binding on the
district directors and the Headquarter Post-order Detention Unit
(HQPDU). First, the law does not require independent review by the
Board. See Marcello v. Bonds, 349 U.S. 302, 310 (1955). Second, the
rule contemplates individualized determinations where each case must be
reviewed on its particular facts and circumstances, and affords aliens
periodic reconsideration in a non-adversarial process. Appropriate
guidance to the public and the Service officers involved is provided by
the rules themselves. Appropriate exercise of discretionary authority
and consistency in decision making are further achieved by transferring
the detention authority from the various district directors nationwide
to the centralized HQPDU and provision for specially trained Service
officers who will administer the program and make the periodic custody
determinations. The Service concurs with the commenter who expressed
concern over training issues and recommended that the Service staff
should be trained by non-law enforcement personnel. One of the basic
requirements for quality decision making is specific training of
officers who will be making custody recommendations or determinations.
The Service already has an on-going training program for Service
officers who participate in Cuban Review Panels and that training
program includes non-law enforcement trainers. Training is being
provided to Service officers who will administer the program, and will
be maintained and routinely monitored with the implementation of the
final rule. The commenter also advocated that the final rule provide an
enforcement mechanism if the established procedures are not followed,
such as a complaint procedure to the Executive Associate Commissioner
for Operations, or Director of the HQPDU. Nothing in the rule prevents
the detainee from notifying the HQPDU Director of delays in the
processing of the detainee's custody review. The Service must maintain
some flexibility in scheduling reviews, but any unusual delays or other
problems should be brought to the Director's attention.
Several commenters expressed concern that the proposed rule does
not give the alien a full opportunity to demonstrate why he or she
should be released. The rule provides the alien the opportunity to
submit advance documentation pertinent to consideration for release,
and the alien has a full opportunity to supplement those materials
during the panel interview. The panel will not proceed with or will
interrupt an interview if it becomes apparent that the alien does not
understand the proceedings. Further, the alien may advise the district
director or HQPDU in advance of the scheduled review that he or she
requests a translator, and, if appropriate, a competent interpreter
will be provided.
Representation at no expense to the government is in accord with
statutory requirements at section 292 of the Act, 8 U.S.C. 1362. Far
from discouraging the alien from obtaining assistance for a custody
review, the rule makes reasonable provision for the alien to secure
legal services or assistance of his or her choosing at no expense to
the government. The Service will provide detainees with a list of
available pro bono or low cost legal representatives who may assist the
alien in the custody review process.
Independent Adjudicator
The Service also received numerous comments that the district
director and HQPDU custody reviews should be conducted by an
independent adjudicator. Custody review procedures do not require an
independent adjudicator. In Marcello, which dealt with deportation
proceedings, the court noted that the fact that the special inquiry
officer was subject to the supervision and control of Service officials
charged with investigative and prosecuting functions did not so strip
the hearing of fairness and impartiality as to make the procedure
violative of due process. The court stated that: ``The contention is
without substance when considered against the long-standing practice in
deportation proceedings, judicially approved in numerous decisions in
the federal courts, and against the special considerations applicable
to deportation which the Congress may take into account in exercising
its particularly broad discretion in immigration matters.'' 349 U.S. at
311.
[[Page 80285]]
As indicated, this rule is modeled after the Cuban Review Plan, at
8 CFR 212.12, an analogous statutory and regulatory framework providing
for the continued custody of excludable criminal aliens when, subject
to periodic reconsideration, the Attorney General determines that
release of such aliens would pose a danger to the community. The
experience of the Cuban Review Plan concretely demonstrates that these
procedures provide sound decision making for both the Government and
the alien. Because the Cuban Review Plan's inception in April 1988,
parole has been granted in over 7,000 cases (some of these may be the
same individuals who are reparoled).
Under the current post-order custody review procedures set forth in
8 CFR 241.4 and the Pearson memorandum, approximately 6,200 aliens have
been provided custody reviews by district directors during the period
from February 1999 through mid-November 2000, to determine whether
detention of the alien beyond the 90-day removal period is warranted.
Of those aliens, approximately 3,380 were released.
The Department has carefully considered the views of the
commenters, and will retain the proposed procedures in the final rule.
Showing by the Alien
The Service received numerous comments on the showing required of
the alien under Sec. 241.4(d)(1). These commenters believed that the
Government should bear the burden of demonstrating why the alien should
not be released. In other words, there should be a presumption of
release. Some commenters objected to the standard of ``to the
satisfaction of the Attorney General'' as confusing and also objected
to the language that the alien's release not present a danger to the
``safety of other persons or to property.'' One commenter expressed the
belief that this was a lesser standard than ``clear and convincing
evidence'' and was therefore unacceptable.
One commenter proposed language for Sec. 241.4(d)(1) based on a
presumption in favor of release and no detention unless conditions
identified in 18 U.S.C. 3142(c) cannot reasonably ensure the alien's
appearance for removal and protect against dangers to the community,
other persons, or property.
A presumption in favor of release along the lines suggested by the
commenters would be contrary to recent legislation. Through a series of
enactments over the past 13 years, Congress has manifested a serious
and growing concern regarding aliens subject to removal who abscond or
commit additional crimes while released from custody. Numerous
provisions of the Act, as recently amended, address this concern. See
generally 63 FR 27441 (May 18, 1998) (reviewing enactments and
legislative history). Moreover, removal proceedings are civil in
nature, and the Supreme Court has held consistently and in a variety of
contexts that criminal procedures and legal standards are not
applicable to such proceedings.
The language of section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6),
the current provision governing post-order detention, does not create
any such presumption of release, nor does an alien enjoy a right to
liberty on account of the unwillingness of his or her own or another
government to accept him or her. See Gisbert v. Attorney General, 988
F.2d 1437, 1443, 1447 (5th Cir.), amended, 997 F.2d 1122 (5th Cir.
1993); Garcia-Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir. 1985).
The fact that an alien has been released on parole from a criminal
sentence, and has not committed any additional offenses while on
parole, may be considered by the Service in determining whether an
individual alien may be released, but these facts are not dispositive.
For example, an alien's release from criminal custody may be based on
the expiration of his or her sentence or other factors such as
overcrowding in the penal facility and not related to the alien's
dangerousness to the community.
After full consideration of all pertinent comments, the Department
will retain the required showing by the alien as provided in the
proposed rule.
The Alien's Representative and His Role
Several commenters felt that the alien's representative should have
a more active role in the custody review process, including questioning
the alien and making closing statements. It was also suggested that the
panel interview should be modeled after asylum interviews pursuant to 8
CFR 208.9(d). Nothing in the final rule prohibits the representative
from speaking and assisting the alien or making a closing statement;
however, the procedures are not formal or adversarial in nature, nor is
this a criminal proceeding. The representative may be of assistance in
bringing factors in support of the alien's request for release to the
attention of the decision-maker that the alien may have neglected to
mention and which may assist in explaining any documentation that
requires clarification. However, the representative is an advocate and
does not replace the need for the initial decision-maker to evaluate
the demeanor and credibility of the alien. The decision-maker will
evaluate the alien's suitability for release based on observation as
well as other relevant circumstances. If the representative could
fulfill this function, there would be no need for an interview of the
alien. Certainly it is within the decision-maker's discretion to order
the alien released after hearing from counsel and receiving any written
documentation in support of release just as the decision-maker can
order release after a records review. It is not required that the alien
participate in an interview, the rule requires that the opportunity be
afforded to the alien, however, the decision-maker may draw negative
inferences from the alien's failure to participate. The Department
finds that it is not necessary to formalize the interview process as
has been done with the asylum regulations and will retain the
supplemental rule language as written.
A number of commenters objected to the language of
Secs. 241.4(h)(2) and (i)(3)(ii) referencing the discretion of the
panel or the institution to exclude an alien's representative. The
Department will modify the language of this section with language
similar to that suggested by one of the commenters. To address any
security concerns the panel or institution may have in regard to a
particular representative, the final rule will reflect that the alien
may obtain assistance from a person of his or her choice subject to the
panel's and institution's reasonable security concerns.
One commenter also stated that assistance of counsel should be at
no expense to the Service rather than at no expense to the Government.
The Department has no authority to override the language of section 292
of the Act, 8 U.S.C. 1362, or to authorize expenditures by other
government components, and will make no modification to this section of
the rule.
Interpreters and Record of Interviews
Many commenters expressed the view that, at the alien's request,
the Department should utilize professional interpreters only. One
commenter added that interpreters should be utilized whenever one was
used in the underlying criminal court case. The Department wishes to
stress that wherever communication becomes problematic, the interview
will be interrupted or postponed if necessary to secure competent
translation. The panel members take notes during the interview process
and are instructed
[[Page 80286]]
during their training to ensure that the alien understands the nature
of the proceedings and has every opportunity to address the panel
members and ask questions. Advance notification that the alien desires
a translator will enable the decision-maker to investigate the
necessity of securing the services of a qualified interpreter and will
facilitate conducting the interview as scheduled.
The Department declines to require a taped recording of the
interview as some commenters urged. The district director (under
Sec. 241.4(c)(1)) and the HQPDU Director (under Sec. 241.4(c)(3))
maintain appropriate files respecting each detained alien who is
reviewed for possible release. The HQPDU panel members conducting an
interview make contemporaneous notes of the interview, which are made
part of the alien's A file. Similarly, when an alien is interviewed as
part of the district director's custody review, any notes made of such
interview are made part of the alien's A file. In addition, decision-
makers may rely on a variety of materials, including those from public
records, the Executive Office for Immigration Review's administrative
record, and from the alien and his family members and friends. As
explained herein, access to the alien's A file is currently provided
and that policy remains in effect. Also, as noted below, much of the
information in an alien's A file is already in the detainee's
possession or is a public record (such as a conviction), and a Freedom
of Information Act (FOIA) request can be made for additional items. Any
documentation the alien submits will become part of the A file, as does
the written recommendation and decision.
Procedural Standards
Some commenters observed that the proposed rule did not impose
criminal standards on the custody procedures and suggested that the
rule should mandate adherence to principles of criminal law. However,
immigration proceedings are civil, not criminal, in nature and rules
that are applicable to criminal cases are not so here. See INS v.
Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984); Guti v. INS, 908 F.2d
495, 496 (9th Cir. 1992) (per curiam) (holding Bail Reform Act
inapplicable to immigration proceedings).
Specifically, one commenter said that requiring responses from the
alien during the panel interview, see Sec. 241.4(i)(4), denies the
right against self-incrimination. It is up to the alien to demonstrate
that he or she does not constitute a danger to the public safety or a
flight risk. While responses are not required, if the alien chooses not
to answer questions put to him or her, negative inferences may be drawn
from the alien's silence. See Bilokumsky v. Tod, 263 U.S. 149, 153-54
(1923).
The Decision Making Process
Many commenters felt that Sec. 241.4(d) did not require
sufficiently comprehensive decisions detailing how and why a decision
to continue custody was made. Several commenters offered replacement
language for this section. The Department will retain the language of
the proposed rule that mirrors that of 8 CFR 212.12. A decision to
continue custody under this rule must specify the reasons for the
continued detention. A particular format is not required.
Several commenters noted that the HQPDU Director should not be able
to overrule a panel recommendation of release. One commenter expressed
the view that the HQPDU be eliminated altogether. The Department will
make no changes to the rule in this respect. The purpose of the HQPDU
is to act as a reviewing authority. The HQPDU must have discretion to
review the panel recommendation. This discretionary authority does not
nullify the interview process as one commenter opined. Rather, the
process gives the central reviewer crucial information about the alien
that will provide a major focal point for the custody review. To ensure
consistency, the HQPDU should be authorized to reverse a favorable as
well as an unfavorable panel recommendation in the exercise of the
Attorney General's discretion. The procedure of centralized review has
been successfully used in the Cuban Review Plan. Experience with that
program has demonstrated that the Headquarters decision sometimes
overrules the recommendation below, whether that recommendation is in
favor of release or continued detention.
One commenter stated that the transfer of detention authority to
the centralized unit would cause delays in the process. The final rule
provides for periodic reviews at scheduled intervals. The Service will
adhere to these timetables as provided in the final rule. Other
commenters contend that the process has inherent bias as the
composition of the panels is selected from Service professionals who
are law enforcement personnel rather than social workers, probation
officers, or mental health professionals. Decision making authority
regarding custody has traditionally been entrusted to officers of the
Service. The Supreme Court has long recognized the ability of Service
officers to make immigration determinations, including custody
determinations, and Service officers have long carried out this
responsibility. The present rule is intended to draw upon significant,
specialized expertise and experience within the Service, particularly
from the Mariel Cuban program, to assist the Department in reaching
sound, well-considered custody decisions. The Department believes that
this rule will improve the quality and consistency of post-order
custody decisions, and will retain the pertinent provisions as
currently drafted.
District Director Responsibilities
Several commenters stated that the district directors should be
encouraged to interview the alien; that it is insufficient to rely on a
records review that may not be complete. Under the final rule, the
district director has the discretion to conduct a personal or
telephonic interview.
Further, under the final rule the alien has the opportunity to
submit any documentation that he or she feels supports his or her
request for release. In that way, any recent and probative material
including rehabilitative efforts may be considered in conducting the
custody review. Also, the recent conclusion of immigration proceedings
should mean that the A file maintained by the Service on the alien
contains the most recent information available. The Department will not
mandate a personal or telephonic interview by the district director for
the 90-day custody review. It is impracticable to require a district
director to personally interview every alien detained within his or her
district. The district director must delegate many duties to the
officers working for him or her in order to ensure that tasks for which
he or she is responsible are carried out properly and as expeditiously
as possible. The final rule provides for an interview after the HQPDU
has conducted a records review and has not made an initial
determination to order the alien's release.
Travel Documents
Some commenters expressed the view that whether or not the Service
could obtain a travel document was either irrelevant or of minimal
relevance to the issue of whether the alien was eligible for release.
In addition, several commenters suggested that travel documents would
have to be in the Service's actual possession in order to trigger an
inquiry into further detention. The Department will not change the
final rule based on these comments. The comments are contrary to the
congressional goal, enacted into law, to ensure that aliens ordered
removed from
[[Page 80287]]
the United States are available for prompt removal when travel
documents are obtained. As indicated in the government's response to
comments on the constitutionality of this rule and statutory
interpretation, section 241(a)(6) of the Act grants the Attorney
General specific authority to continue to detain an alien following the
expiration of the removal period. An order of removal does not convert
to a grant of admission or de facto admission because a foreign
government delays or refuses to accept the return of one of its
nationals. Similarly, an alien found deportable and ordered removed
does not gain permission to remain in the United States simply because
of the refusal of another country to admit the alien. Congress enacted
the removal period at section 241(a) of the Act to facilitate the
removal of criminal aliens, an objective of paramount importance.
Detention has proven to be an effective enforcement tool in the removal
of criminal aliens as nondetained aliens often fail to appear for
pending immigration proceedings or removal after issuance of a final
order. It is within the discretion of the Service to determine the
likelihood of receipt of a travel document in the foreseeable future. A
policy of automatic release pending the issuance of travel documents
would thwart the intention of Congress that the Attorney General be
vested with the discretion to detain certain aliens including those who
pose a danger to the community or a risk of flight pending their
removal. Such a policy could serve to encourage foreign governments to
further delay or refuse to accept the return of their nationals if they
expect the U.S. Government will release the alien. See Mezei, 345 U.S.
at 216; Barrera, 44 F.3d at 1448.
Two commenters felt that the proposed rule improperly penalizes
aliens who fail to cooperate with the Service in seeking a travel
document. Although the purposes of immigration detention are not
punitive, we wish to emphasize that cooperation in obtaining a travel
document is required by law, and that failure of an alien subject to a
final removal order to cooperate with the Service in obtaining a travel
document is a felony punishable by imprisonment of four to ten years.
See section 243(a)(1)(D) of the Act, 8 U.S.C. 1253(a)(1)(D) (Supp. IV
1998). An alien who fails or refuses to cooperate in obtaining a travel
document not only engages in criminal conduct, but also helps to bring
about the very condition he or she complains of--i.e., prolonged
detention--by that criminal conduct. Moreover, the Act specifically
provides for detention in the event that an alien subject to a final
removal order fails or refuses to cooperate in obtaining a travel
document. See section 241(a)(1)(C) of the Act, 8 U.S.C. 1231(a)(1)(C)
(Supp. IV 1998). These provisions manifest a clear congressional policy
with regard to cooperation in obtaining travel documents. The
Department believes the rule as presently drafted is both consistent
with this congressional policy and reasonable in allowing for
consideration of the alien's cooperation and compliance with the law.
The pertinent provisions will be retained without modification.
Criteria for Release
The Department received several comments objecting to the criteria
specified in Sec. 241.4(e) because they differ from the statutory
criteria. Other commenters found it confusing to require two separate
findings regarding risk to the community and opined that the focus of
inquiry should be on prospective behavior in the community. Some
commenters found this section gave too much discretion to the decision-
maker whereas another felt there was too little discretion. The
criteria in this section are consistent with the Mariel Cuban parole
regulation at 8 CFR 212.12 and will assist the decision-maker in
identifying and evaluating factors relevant to the exercise of
discretion regarding continuation of custody. The criteria set out in
Sec. 241.4(e) provide essential guidance to the decision-maker in
assessing future risk to the community. In making this determination,
both past and present behavior are relevant. Restricting the custody
review inquiry to behavior subsequent to the alien's release from
incarceration or from the time of detention in Service custody would
place unacceptable limitations on the decision-maker's ability to fully
review the circumstances of an alien's case in making a custody
decision.
One commenter suggested additional language for the end of
Sec. 241.4(e)(1) (suggested change in italics): ``* * * immediate
removal, while proper, is otherwise not practicable or not in the
public interest, or potentially detrimental to the health or well being
of the alien.'' The humanitarian concerns expressed by the commenter
are encompassed within the rule's current language of ``not practicable
or not in the public interest'' and additional language is not
necessary. The Service has the discretion to release a detainee or even
to delay removal for humanitarian reasons.
One commenter suggested that the criteria of Sec. 241.4(e)(3) that
``the detainee is likely to remain nonviolent'' be replaced with the
detainee has expressed an intent to remain nonviolent. The Department
believes that the proposed rule correctly captures the relevant
inquiry. An expression of intent to refrain from violence, though
potentially relevant to a release determination, is not in itself
necessarily determinative or even persuasive. Indeed, one of the aims
of the process is to assess the detainee's credibility regarding
rehabilitation. The language of the proposed rule will be retained,
therefore, without modification.
Factors for Consideration
Several comments expressed the view that the commission of
disciplinary infractions should not preclude a finding that the alien
is not a risk to the community. Other commenters felt that their
commission should be afforded minimal weight in the risk assessment
because of disparity in detention standards and requirements, constant
transfers, and language barriers. There is nothing in the rule that
prohibits release in a case where the alien has been involved in the
commission of disciplinary infractions. Disciplinary infractions
represent one of several factors that are to be considered and afforded
appropriate weight in making a recommendation or decision. Some
infractions are more serious than others and will be weighed as
warranted by the circumstances in each case. As a general matter,
however, disciplinary infractions are relevant to danger to the
community, because they reflect the alien's present ability to follow
rules, respect the rights of others, and act appropriately on his or
her own if released into a less structured environment.
The Department received some comments stating that consideration of
the detainee's criminal conduct and other criminal history was too
broad an inquiry because it allows consideration of unverified charges
not resulting in a criminal conviction. However, under the immigration
law, grounds of removability may include criminal conduct that does not
result from a criminal conviction. Because such conduct is sufficient
to support a finding of removability from the United States, it may
also be considered for detention purposes. Consideration of criminal
history is probative of the threat to the community posed by the
alien's potential release. It is relevant to consider the alien's
entire criminal history although the weight given to each factor will
vary according to the individual facts and circumstances of a
[[Page 80288]]
particular case. The rule adequately provides, without additional
specificity, for consideration of the nature and severity of the
convictions, factors in mitigation of a criminal sentence, the sentence
imposed, state parole findings, probation, and other criminal history.
Moreover, to the extent that non conviction criminal history
information may exist, the decision-maker can make clarifying inquiries
with the alien or the alien's representative, as appropriate, and can
give criminal history information whatever weight is appropriate in
light of the information available.
Commenters suggested that the body of the rule as well as the
supplemental information section should state that no negative
inference will be made from non-participation in rehabilitation
programs if such programs are not available in the facility where the
alien is housed. Some commenters wanted the body of the rule to add
that (1) barriers to participation include long waiting lists, waiting
periods for new detainees, and the unavailability of some programs to
detainees, and (2) that program availability at state and local
institutions prior to Service detention may be considered.
The Department understands the concerns reflected in these
comments, but does not believe that a change in the regulatory text is
necessary or appropriate to address them. The relevance of
nonparticipation in rehabilitative programs is a proper subject of
internal training. It is not necessary, therefore, to reinforce this
message through an alteration of regulatory text. Moreover, detainees
seeking release are free to submit materials indicating the
impossibility or difficulty of enrolling in rehabilitative programs if
they wish.
Two commenters felt that the rule should specify the nature of
participation in rehabilitation programs, freedom from disciplinary
infractions, and other indicia of commitment to good conduct required
to secure the alien's release, particularly after commission of violent
crimes. In other words, these commenters invite the Department to
specify criteria the satisfaction of which would require release from
custody.
In general, the custody review determination involves highly
individualized case reviews for which mandatory release pursuant to
pre-established formulas would not be appropriate. Rather, the
Department prefers an approach based on the consideration of factors
included in the rule instead of mandatory criteria. The regulation
cannot cover every conceivable circumstance and provide enough
flexibility to accommodate multiple issues considered in the exercise
of discretion under section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6).
To avoid what the commenter terms ``rubber stamp denials,'' the listed
factors and other pertinent information will be evaluated in relation
to the alien's character, and ability to adjust in the community. The
Department declines to change the rule based on this comment.
Similarly, the Department received numerous comments stating that
the only factors that should be considered are the enumerated ones and
that no single factor should be weighed so as to exclude all others.
The Department declines to make any changes to the final rule based on
these comments. Maintaining flexibility is essential to the exercise of
discretion. The decision-maker may weigh the same factors differently
depending on the circumstances of the individual case. Further, the
list of factors for consideration provides a guideline (not an
exclusive list) for the decision-maker to utilize in reaching a custody
determination. If other relevant circumstances are present in a
particular case, the decision-maker must be free to consider them.
Several commenters suggested that favorable factors should be set out
with more specificity in the rule, including prospects for employment,
community care placement opportunities, ties to clergy or community
organizations, and sponsorship. Such specificity is not needed in the
final rule because the rule already addresses sponsorship and provides
for consideration of community ties and other factors whether favorable
or unfavorable.
Several commenters suggested that the body of the final rule state
that there is no presumption of dangerousness due to the existence of a
criminal record. The decision-maker's responsibility is to weigh the
severity and circumstances of the criminal conduct along with other
material considerations, whether favorable or unfavorable, in making a
custody determination. The Department will not mandate a result either
for release or detention based on the presence or lack of a particular
factor for consideration. As discussed above, it is up to the alien
ordered removed to demonstrate a lack of danger to the community and
flight risk upon release.
Other commenters suggested that only immigration violations
relevant to flight risk should be considered and only willful failures
to appear. Failure to appear for probation appointments, court
hearings, and other mandated proceedings is highly probative of flight
risk. As with any other factor, the specific circumstances surrounding
the failure to appear will determine how much weight the decision-maker
gives it. It is unnecessary to amend the final rule and address this
with more specificity.
Two commenters wanted to add as a factor for consideration the
length of time the detainee has been in immigration custody. The final
rule does not exclude this factor, if relevant, from the decision-
maker's consideration, but an explicit mention of this has not been
included in the rule.
One commenter suggested that favorable factors such as ties to the
United States and availability of work or other programs should not be
considered because removable aliens may be deported from this country
without regard to such considerations. The Department will not change
the final rule based on this comment. The crux of this program is to
make a custody determination based on an analysis and weighing of
factors that may permit the alien's release into the community until
such time as his or her removal can be effected. Ties to the community,
work opportunities, and rehabilitative programs are relevant to making
a custody determination.
Several commenters suggested the addition of a factor to be weighed
heavily in favor of the alien: that the alien cannot be returned to his
or her country of origin. Although nothing in the rule prevents a
decision-maker from considering such a circumstance in rendering a
custody decision, the overriding concerns of the rule are public safety
and flight risk, and the likelihood of the alien's successful
reintegration into the community pending removal. The Department feels
that the list of discretionary factors properly focuses on these
issues, but leaves decision-makers with broad discretion to consider
other circumstances as may be appropriate in each case. Therefore, the
text of the rule will not be modified.
Sponsorship
Several commenters believed that the sponsorship provision should
be deleted or modified. The suggested language authorizes the district
director or Executive Associate Commissioner, in the exercise of
discretion, to condition release on the detainee's having a sponsor or
participating in an approved halfway house or mental health or
community project, whether residential or not. The language of the rule
is sufficiently broad to allow the decision-maker to consider a wide
range
[[Page 80289]]
of sponsorship possibilities. Given that sponsorship is a permissive
rather than a mandatory condition of release, the Department will not
expand the language of Sec. 241.4(j)(2).
One commenter suggested that the rule should encourage employment
authorization and mandate a grant or denial decision within 30 days of
application. Such specificity is not required in the final rule. As
with other provisions of the final rule, each case will receive
individual consideration. The Service will make decisions on work
authorization as expeditiously as possible. It was also suggested that
the rule should authorize the presence of the sponsor at the panel
interview. The Department has no objection to the sponsor's being
selected as the alien's representative, subject to the security
concerns of the panel or institution. If the alien desires the presence
of his or her sponsor in addition to the presence of counsel or other
representative, the alien must make advance arrangements with the panel
and the facility.
Release or Order of Supervision
One commenter asked whether the release of an inadmissible alien
constitutes a release on parole pursuant to section 212(d)(5) of the
Act, 8 U.S.C. 1182(d)(5), and 8 CFR 212.5(d)(2)(i) or under an order of
supervision pursuant to section 241(a)(3) of the Act, 8 U.S.C.
1231(a)(3), and 8 CFR 241.5. Reference to the parole statute and
regulations is correct and will not be revised. An alien who has been
denied admission to the United States continues to be an applicant for
admission and pending removal is subject to release in accordance with
the Attorney General's parole authority both before and after a final
order of exclusion or removal on grounds of inadmissibility. See, e.g.,
Leng May Ma v. Barber, 357 U.S. 185, 188 (1958); Palma v. Verdeyen, 676
F.2d 100, 103 (4th Cir. 1982); see also sections 101(a)(13) and
212(d)(5) of the Act, 8 U.S.C. 1101 (a)(13), 8 U.S.C. 1182(d)(5)(A); 8
CFR 212.12. As in the Mariel Cuban program at 8 CFR 212.12, the
Attorney General may impose a reporting requirement or other conditions
of release in the case of an inadmissible alien who is detained
pursuant to section 241(a)(6) of the Act and approved for parole.
Frequency and Timing of Reviews
Numerous commenters objected to the change from review of custody
status every six months under the Pearson memoranda to annual reviews.
The Department has fully considered this issue and will retain the
annual review structure. The final rule is modeled after the Cuban
Review Plan, which also operates on an annual review schedule. The
Pearson reviews were structured on an interim basis until more
permanent procedures could be put in place. The final rule will allow
sufficient time between reviews for interview scheduling and compiling
of the materials for review. Further, interim reviews are not
foreclosed by the annually scheduled custody review. Under
Sec. 241.4(k)(2)(iii), the HQPDU will respond to the alien's written
request for release based on a showing of a material change in
circumstances since the last annual review. One commenter asked why
there were no sanctions in the rule if a review is late. The remedy if
a review is late is a full review as soon as possible. The Department
must preserve flexibility for redeployment of Service staff for
national immigration emergencies or other mandates requiring immediate
attention. Extreme weather conditions, or other transportation problems
may delay a panel's visit to a particular facility. A panel member's
illness or other personal emergency, a prison lock-down situation, or
the alien's transfer to another facility are some other reasons that
interviews might be delayed.
Several commenters objected to Sec. 241.4(k)(3) of the rule
allowing for suspension of reviews for removal or good cause. Other
commenters urged that this section provide for notice and a right of
appeal. The Department will retain this section in the rule as written.
This section is essential for administration of the program and in
furtherance of removal where practicable. Release under section
241(a)(6) of the Act is a privilege and can be revoked. As provided in
the rule, if further review is appropriate after suspension, it will be
rescheduled. Any administrative appeal and hearing would only delay the
review further and would be inappropriate in cases where prompt removal
is practicable.
Several commenters suggested that transfer of detention authority
from the district director to the HQPDU should occur upon expiration of
the removal period. The Department will retain the rule provisions
regarding transfer as written. The rule provides for an orderly
transfer of authority and fully sets out the procedures for automatic,
periodic review.
One commenter noted that the rule is a tremendous improvement in
providing for meaningful and periodic reviews. The balance of comments
pertaining to Sec. 241.4(k) concern requiring mandatory deadlines for
conducting custody reviews, writing decisions, and serving them on the
alien. The Department will not make any changes to the final rule as a
result of these comments. As indicated in previous responses, the
Service must maintain flexibility for allocation of resources and for
working cooperatively with other federal agencies as well as state and
local authorities. The Service is obligated to make every reasonable
effort to ensure that reviews are held timely and professionally.
Interim Reviews
Two commenters suggested revision of Sec. 241.4(k)(2)(iii) to allow
for quarterly interim reviews at the alien's request without
restriction. The Department understands the commenters' concerns;
however, implementing such a program would severely strain Service
resources, which do not permit more frequent reviews without cause. The
Service would scarcely have completed a review before it would be time
to begin another. Frequent re-review of the same facts without any
change in circumstances in support of release would merely serve to
misdirect Service resources that otherwise could be more usefully
employed and would result in delay of reviews in other cases. The
Department disagrees with the comment that circumstances cannot change
because the alien is detained. For example, an appropriate sponsor
might be located, the alien might receive an employment offer, remain
incident free, or become eligible for or successfully complete
rehabilitative programs that might influence the decision-maker to
approve release.
Notice and File Access
Some commenters requested that the notification of custody review
be extended to 45 or 60 days prior to the review. The Department
declines to extend this notification period. If the alien requires
additional time to prepare for a custody review, it may be granted in
accordance with the provisions of the final rule. The Department agrees
with the commenter who suggests that the alien be given the address of
the HQPDU. That information will be supplied to the alien with written
notification of the Headquarters custody review.
Some commenters felt that Sec. 241.4(h)(4) should specifically
advise the alien if the district director is retaining jurisdiction
over the case for the additional three-month period, rather than
referring the case to the HQPDU at the expiration of the 90-day removal
period. The structure of the final rule permits the district director
flexibility in determining what options are available to him or her
during the
[[Page 80290]]
initial period when the Service has assumed physical custody over the
alien. During this additional three-month period, the district director
may be able to execute the removal order, may order the alien's release
pending removal, or may refer the case to the HQPDU for further review.
The rule's notice requirements advise the alien of the results of the
90-day review while maintaining the district director's flexibility to
determine what further action the case requires.
Numerous commenters requested full disclosure to the detainee and
the representative of the alien's A file and the file of the detention
facility. Others requested copies of all documents relied on by the
Service at the custody review. Access to the alien A file will be
provided to the detainee and the representative in accordance with
current Service policy and practice as developed under the Cuban Review
Plan, and subject to limited exceptions such as the identities of
confidential informants, law enforcement personnel, and documents that
cannot be released because the information therein would adversely
effect an ongoing investigation.
Because access to the A file is provided, the Service will not
provide copies as a matter of course. In any event, much of the
information in the A file is already in the detainee's possession as it
was originally obtained from the detainee or is a public record (such
as conviction documents). A FOIA request can be made for additional
items. The detainee or representative must make arrangements for access
to files of the detention facility from the custodian of those records
in advance of when the party wishes to review them. The Service is not
the custodian of files maintained by a non-Service detention facility
and has no authority to grant or deny access to such files.
One commenter proposed language changes to the provisions
concerning service of notices and decisions to the alien and the
representative of record. The Department will not change the wording of
Secs. 241.4(d)(2) or (d)(3). Section 241.4(d)(3) adequately ensures
that the representative of record will receive a copy of any notice or
decision.
One commenter requested that the notice required by
Sec. 241.4(h)(2) for the district director's 90-day review advise the
alien of the criteria of Sec. 241.4(e) and the factors in
Sec. 241.4(f). The Department will adopt this recommendation. The
notice of a district director or HQPDU custody review will advise the
alien of the criteria of Sec. 241.4(e) (conclusions that must be drawn
by the decision-maker before approving a release) and factors in
Sec. 241.4(f) to assist the alien in preparing for the review. A notice
of custody review, whether by the district director or the HQPDU, will
briefly advise the alien of the review procedures and display the
correct address for submission of any documents. For a more detailed
explanation of review procedures, the detainee may consult the final
rule.
The Department will not accept the recommendation of a commenter to
amend the language of Sec. 241.4(h)(2) so that the alien's request for
additional time to submit documentation to the district director
extends the time for conducting the custody review only until the
additional information has been received. The custody review will be
conducted as promptly as scheduling permits.
Withdrawal of Release Approval/Revocation
One commenter objected to Sec. 241.4(l)(2) (Determination by the
Service). Other commenters recommended limiting Sec. 241.4(j)(4)
(Withdrawal of release approval) to cases where removal is practicable
or there is a material change in the detainee's conduct, indicating he
poses a risk to the community. Commenters also requested written notice
of withdrawal of release approval and provisions for a hearing process.
Upon revocation, commenters suggested that the next review be conducted
within 3 months. Depending on the circumstances of a particular case,
revocation or withdrawal of release authorization under section
241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), may be appropriate for any
of the reasons listed in section 241.4(l)(2) of the rule, including the
alien's violation of a condition of release. Cf. section 243 of the
Act, 8 U.S.C. 1253(b) (authorizing criminal sanctions for violation of
release conditions). Section 241.4(l)(1) of the rule provides that,
upon revocation, the alien will be provided notice of the reasons for
the revocation. In addition, the rule is being modified to provide that
the alien will be afforded an initial informal interview promptly after
his return to Service custody to provide the alien an opportunity to
respond to the reasons for the revocation. The rule currently provides
at Sec. 241.4(l)(3) for a full custody review, including an interview,
to be conducted within three months of the revocation of release. The
rule is being modified to clarify that the custody review will include
a final evaluation of any contested facts relevant to the revocation
and a determination whether the facts as determined warrant revocation
and further denial of release.
Recordkeeping, Reporting, and Ombudsman
Several commenters stated that the district director should forward
all documents submitted by the alien to the HQPDU. The Department
agrees with this recommendation. The alien's submissions will be
included in the HQPDU custody review file.
Several commenters endorsed a recommendation that the Service
compile statistics on nationality, length and place of detention, and
dates of review, and that these statistics be made available for
independent review. The Service will maintain statistics on the
detained post-order population. Such statistics may be available
through authorized pre-existing procedures. The Department declines to
appoint a separate ombudsman to oversee the implementation of the
program and keep statistics. The Service has a Headquarters managerial
position in the Detention and Removals Branch that fulfills the
functions of an ombudsman.
Courts
Some commenters wanted the rule to permit federal court stays. See
8 CFR 241.6 (Administrative stay of removal). This rule concerns the
delegation and exercise of powers by the Attorney General, not the
courts. Thus, the rule will not be modified to account for judicial
stays.
Executive Orders
One commenter predicted that the rule will prolong litigation with
a corresponding increase in costs if promulgated. The commenter also
noted the Government's litigation and detention costs. These comments
concern policy determinations made by Congress, which sets immigration
policy and passes legislation allocating expenditures within the
federal budget. This is not an executive or judicial function.
This commenter also stated that the rule affects the relationship
between the states and the federal government by nullifying prior
determinations (to release) by state court judges, probation officers,
prison authorities, and parole administrators. The commenter stated
that the rule requires a federalism summary impact statement. The
Department disagrees with the need for an impact statement. States have
no authority to regulate immigration. This function is solely within
the province of the federal government. This rule concerns civil
immigration, not criminal law. The statutes and policies being
[[Page 80291]]
implemented by state courts, probation and parole departments, and
penal authorities' release determinations are based on different goals
and responsibilities than those that govern a release or detention
decision affecting an alien under a final order of removal. For
example, release from a term of imprisonment is mandated when an
individual has been sentenced for commission of a criminal offense and
that sentence has been served. There is no authority to detain the
individual longer under that criminal sentence. Also, a particular
sentence may be mandated by statute irrespective of the risk that the
criminal poses to the community upon release. This is exemplified in
``truth-in-sentencing'' jurisdictions. There have also been various
instances where a court order mandates the release of criminals because
of prison overcrowding. Thus, the Department believes that no impact
study is required.
Venue for Panel Reviews
Two commenters stated that panel reviews should be conducted at
district processing centers to allow attorney representatives and
family to attend. The Department cannot implement this suggestion. The
rule already permits the attendance of the attorney representative.
Panel interviews will be conducted at the facility where the alien is
detained. Moving detainees for interviews would involve significant
additional expenditures and security concerns that would detract from
the expeditious and efficient operation of the program.
Transition Provisions
The Department will retain the transition provisions as written.
Two commenters requested that transitional cases receive an interview
irrespective of whether the last review was a records review or
included an interview and that the reviews should be held more
frequently than specified in the rule. The transition provisions of the
rule more closely mirror the permanent procedures than do the
commenters' suggestions, which in timing resemble the interim Pearson
provisions. The provisions allow the Service to give full consideration
to cases that have not yet received any review and advance equal
treatment of all cases more expeditiously than the commenters'
proposal.
Vera Institute of Justice Study
A commenter noted that the proposed rule did not mention the Vera
Institute of Justice study recommending alternatives to detention for
aliens ordered removed. The Service recently received the final report
of the Vera Institute Appearance Assistance Program, and is currently
reviewing it. The Service agrees that there is potential for use of the
processes and information from the study in the area of detention of
aliens with final removal orders. The Service intends to establish
additional pilot projects in several districts in the next year. The
projects may include contract or governmental personnel and will test
various levels of supervision. Supervised release of post-order
detainees will be examined in some of the test sites. These projects
may involve halfway houses or other support and rehabilitation programs
to prepare detainees for release or for future consideration.
Several commenters suggested deletion of the language in the
supplementary information addressing foreign and domestic affairs,
availability of resources, public policy, and humanitarian concerns.
The Attorney General must be able to take these factors into account
and assess their impact on individual and institutional decision
making. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999).
Who Is Covered Under This Final Rule?
This rule establishes a permanent review procedure applying to
aliens who are detained following expiration of the 90-day removal
period. It also applies to aliens released under the provisions of the
final rule upon a finding that they do not constitute a risk to the
community or a flight risk. The Attorney General is authorized to
detain these aliens beyond the removal period consistent with section
241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). This permanent review
procedure governs all post-order custody reviews inclusive of aliens
who are the subjects of a final order of removal, deportation, or
exclusion, with the exception of inadmissible 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 final rule, the district director maintains the
responsibility for the initial custody review when the alien's
immediate removal 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 records review. In most cases, it will
be unnecessary for the district director to undertake a personal
interview because the alien's immigration proceedings have recently
concluded, and his or her records are therefore up-to-date. 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 removal 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 removal, the district director's
authority to reconsider an alien's custody status may be extended for
an additional period of up to three months after expiration of the
removal period. The additional three-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 three-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 removed or released from detention,
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 three-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
[[Page 80292]]
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 records review for each alien previously ordered detained by
the district director. If the records 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 the alien 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 decision declining 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 removed 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
Mariel Cuban parole panel) rather than the more formal rules regarding
attorney representatives at 8 CFR 292.1. Both 8 CFR 212.12 and this
final 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 a 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 records
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 a copy of all notices and
decisions 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
should 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.
The alien will be afforded an initial informal interview promptly after
his or her return to Service custody to afford the alien an opportunity
to respond to the reasons stated in the notice. A full custody review,
including an interview, will be conducted within three months of the
revocation of release and will include a final evaluation of any
contested facts relevant to the revocation, and a determination whether
the facts as determined warrant revocation and further denial of
release.
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 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) of the Act 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,
[[Page 80293]]
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 Does This Rule Make?
This rule terminates 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). Because these
aliens have final orders of removal, all legal issues involving
removability (and any 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.
This 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 custody status.
Accordingly, in order to implement a single comprehensive review
process for post-order custody cases, this 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 December 21, 2000 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 rule 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 December 21, 2000 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 8 CFR
212.13. 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 this rule.
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 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 Removals, 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 promptly. 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 a removable alien to be
released within the United States pending resolution of the underlying
action or event. Aliens whose removal is withheld under 8 CFR 208.16 or
deferred under 8 CFR 208.17 may be considered for release.
Will There Be Special Release Conditions Under This 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, and 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 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 removal. See,
e.g., Fernandez-Roque v. Smith, 734 F.2d 576, 583 (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.
Effective Date of this Final Rule
The Department's implementation of this final rule effective upon
publication in the Federal Register is based upon the ``good cause''
exception found at 5 U.S.C. 553(d)(3). The Pearson reviews were
intended for interim use only; through this rule, the agency has now
adopted permanent and more comprehensive procedures for post-order
detainees. Implementation upon publication affords both the Government
and detainees the benefits of the new procedures as soon as possible.
Delaying the effective date of this rule would be contrary to the
public interest.
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
[[Page 80294]]
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 certain 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, 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 rule 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 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. Revising the phrase ``Except as provided in Sec. 212.13, the
authority'' to read ``The authority'' in paragraph (b) introductory
text; and by
b. Removing the word ``either'' and removing the phrase ``or
Sec. 212.13, whichever is later'' in paragraph (g)(2).
Sec. 212.13 [Removed]
4. Remove section 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 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1223, 1227, 1231, 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 his or her
designee, the Executive Associate Commissioner Field Operations
(Executive Associate Commissioner) 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 ordered removed 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, 104 Stat.
4978, 5048 (codified at 8 U.S.C. 1226(e)(1) through (e)(3)(1994));
(2) An alien ordered removed who is removable under section
237(a)(1)(C) of the Act;
(3) An alien ordered removed 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, Div. C of Public Law 104-208, 110 Stat.
3009-546; and
(4) An alien ordered removed who the decision-maker determines is
unlikely to comply with the removal order or is a risk to the
community.
[[Page 80295]]
(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 inadmissible Mariel Cuban who is being
detained by the Service pending an exclusion or removal proceeding, or
following entry of a final exclusion 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.
(3) Individuals granted withholding or deferral of removal. Aliens
granted withholding of removal under section 241(b)(3) of the Act or
withholding or deferral of removal under the Convention Against Torture
who are otherwise subject to detention are subject to the provisions of
this part 241. Individuals subject to a termination of deferral hearing
under 8 CFR 208.17(d) remain subject to the provisions of this part 241
throughout the termination process.
(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 three-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 removed by
the expiration of the three-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.
(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 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 if released;
(4) The detainee is not likely to pose a threat to the community
following release;
(5) The detainee is not likely to violate the conditions of
release; and
(6) The detainee does not pose a significant flight risk if
released.
(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
[[Page 80296]]
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 immigration 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--
(i) Adjust to life in a community,
(ii) Engage in future acts of violence,
(iii) Engage in future criminal activity,
(iv) Pose a danger to the safety of himself or herself or to other
persons or to property, or
(v) 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 if the alien fails
or refuses to cooperate in the process of obtaining a travel document.
See, e.g., section 241(a)(1)(C) of the Act.
(h) District director's custody review procedures. The district
director's custody determination will be developed in accordance with
the following procedures:
(1) Records 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 records 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
records review so that the alien may submit information in writing in
support of his or her release. The al |
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