[Federal Register Volume 63, Number 96 (Tuesday, May 19, 1998)]
[Rules and Regulations]
[Pages 27441-27450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13178]
[[Page 27441]]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service and Executive Office for
Immigration Review
8 CFR Parts 3 and 236
[INS No. 1855-97; AG Order No. 2152-98]
RIN 1115-AE88
Procedures for the Detention and Release of Criminal Aliens by
the Immigration and Naturalization Service and for Custody
Redeterminations by the Executive Office for Immigration Review
AGENCY: Immigration and Naturalization Service, and Executive Office
for Immigration Review, Justice.
ACTION: Final rule.
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SUMMARY: This rule amends the regulations of the Immigration and
Naturalization Service (Service) and the Executive Office for
Immigration Review (EOIR), establishing a regulatory framework for the
detention of criminal aliens pursuant to the Transition Period Custody
Rules (TPCR) set forth in the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA). This rule is necessary to provide
uniform guidance to Service officers and immigration judges (IJs)
regarding application of the TPCR.
DATES: This rule is effective June 18, 1998.
FOR FURTHER INFORMATION CONTACT:
Brad Glassman, Office of the General Counsel, Immigration and
Naturalization Service, 425 I Street NW., Room 6100, Washington, DC
20536, telephone (202) 305-0846.
SUPPLEMENTARY INFORMATION:
Background
On October 9, 1996, the Commissioner of the Immigration and
Naturalization Service (Service) notified Congress that the Service
lacks the detention space and personnel necessary to comply with the
mandatory detention provisions of section 440(c) of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, 110
Stat. 1214, and section 236(c) of the Immigration and Nationality Act
(INA or Act), as amended by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, Div. C,
section 303(a), 110 Stat. 3009. By operation of law, see IIRIRA section
303(b)(2), the notification resulted in the temporary replacement of
these mandatory detention provisions with the Transition Period Custody
Rules (TPCR) set forth in IIRIRA section 303(b)(3). A second
notification on September 29, 1997, continued the TPCR in effect for an
additional year. The TPCR provide for the detention, inter alia, of
specified classes of criminal aliens, and allow some of these aliens to
be considered for release in the exercise of the Attorney General's
discretion.
The Department of Justice (Department) published a proposed rule to
implement the TPCR on September 15, 1997, at 62 FR 48183, with written
comments due by October 15, 1997. The proposed rule established three
categories of criminal aliens for purposes of detention and release
under the TPCR. Aliens in the first category were subject to mandatory
detention. Aliens in the second category were subject to mandatory
detention except in the case of lawful permanent resident aliens and
certain other lawfully admitted aliens who had remained free of crimes,
immigration violations, and the like for a 10-year period. Aliens
excepted from the second category and aliens in the third category
could be considered for release on a case-by-case basis, in the
exercise of discretion.
The proposed rule also established procedures for the Service to
obtain a stay of an immigration judge's custody decision in conjunction
with an appeal of the custody decision to the Board of Immigration
Appeals (Board). In providing explicit authority for the Service to
seek an emergency stay, the rule codified a long-standing
administrative practice. The rule departed from present practice,
however, in providing for an automatic stay in certain criminal cases
where the Service appeals the redetermination of a bond set at $10,000
or more (including an outright denial of bond).
The Department has received a number of public comments
recommending modifications of the proposed rule. Because several of the
comments overlap or endorse the submissions of other commenters, the
following discussion will address the comments by topic rather than by
response to each comment individually.
General Rules Versus Ad Hoc Adjudication
Several commenters objected to the establishment of categories of
non-releasable deportable and inadmissible criminal aliens based on
factors strongly indicating a poor bail risk. The commenters expressed
a preference for case-by-case custody determinations in all situations,
criticizing categorical rules as burdensome with respect to the
Service's detention resources, less flexible and nuanced than case-by-
case consideration, invasive of immigration judges' bond
redetermination authority, contrary to the TPCR, and, in the case of
permanent resident aliens, unconstitutional.
The Department has carefully considered the views of the
commenters, and will retain the basic structure of the proposed rule,
with certain modifications. This rule implements an important component
of a congressional and executive policy to ensure the swift and certain
removal of aliens who commit serious crimes in this country. The
success of this policy, in the estimation of both Congress and the
Department, significantly affects the well being of the United States
and its law-abiding citizen, residents, and visitors.
Congress' near-complete power over immigration transcends the
specific grant of authority in Article 1, Section 8 of the
Constitution, and derives from the ``inherent and inalienable right of
every sovereign and independent nation'' to determine which aliens it
will admit or expel. Fong Yue Ting v. United States, 149 U.S. 698, 711
(1893); see also, e.g,. Landon v. Plasencia, 459 U.S. 21, 32 (1982)
(``[T]he power to admit or exclude aliens is a sovereign
prerogative,''); Kleindienst v. Mandel, 408 U.S. 753, 766-67 (1972) (``
`Policies pertaining to the entry of aliens and their right to remain
here are peculiarly concerned with the political conduct of
government.' '' (quoting Galvan v. Press, 347 U.S. 522, 531 (1954));
Flemming v. Nestor, 363 U.S. 603, 616 (1960) (describing ``power of
Congress to fix the conditions under which aliens are to be permitted
to enter and remain in this country'' as ``plenary''); Harisiades v.
Shaughnessy, 342 U.S. 580, 587-88 (1952) (Power to remove even
permanent resident aliens is ``confirmed by international law as a
power inherent in every sovereign state.''); Mahler v. Eby, 264 U.S.
32, 39 (1924) (describing as ``unquestioned'' the power of Congress
`'to rid the country of persons who have shown by their career that
their continued presence here would not make for the safety or welfare
of society''). More than a century ago, the Supreme Court upheld
detention
as part of the means necessary to give effect to the provisions for
the exclusion of expulsion of aliens * * *. Proceedings to exclude
or expel would be in vain if those accused could not be held in
custody pending the inquiry into their true character and while
arrangements were being made for their deportation.
Wong Wing v. United States, 163 U.S. 228, 235 (1896); see also Carlson
v. Landon, 342 U.S. 524, 538 (1952) (``Detention is
[[Page 27442]]
necessarily a part of this deportation procedure. Otherwise aliens
arrested for deportation would have opportunities to hurt the United
States during the pendency of deportation proceedings.''). It is
therefore ``axiomatic'' that an alien's interest in being at liberty
during the course of immigration proceedings is ``narrow'' and
``circumscribed by considerations of the national interest.'' Doherty
v. Thornburgh, 943 F.2d 204, 208, 208, 209 (2d Cir. 1991), cert.
dismissed 503 U.S. 901 (1992),
The detention of removable criminal aliens during proceedings
serves two essential purposes: Ensuring removal by preventing the alien
from fleeing, and protecting the community from further criminal acts
or other dangers. The stakes for the Government are considerable in
this context. The apprehension of a criminal alien who absconds during
the removal process is expensive, time-consuming, and, in many cases,
dangerous both to Government personnel and to civilians. Failure to
recover such an alien for removal means not only scores of hours wasted
by immigration judges, Service attorneys, interpreters, immigration
officers, and clerical and support staff, but also a fugitive alien
criminal beyond the control of lawful process and at large in the
community. Released aliens who abscond calculate--correctly--``that the
INS lacks the resources to conduct a dragnet.'' Ofosu v. McElroy, 98
F.3d 694, 702 (2d Cir. 1996). As further discussed below, abscondment
by criminal aliens subject to removal has become disturbingly frequent.
Beginning with the Anti-Drug Abuse Act of 1988 (ADAA), Pub. L. 100-
690, 102 Stat. 4181, continuing with the Immigration Act of 1990
(Immact), Pub. L. 101-649, 104 Stat. 4978, and culminating with the
recent enactment of AEDPA and IIRIRA, successive legislation over the
past decade has mandated increasingly severe immigration consequences
for aliens convicted of serious crimes, and has imposed restrictive
detention conditions on such aliens during removal proceedings.
Congress' concern with criminal aliens who flee or commit additional
crimes is plainly evident in the detention provisions of the ADAA and
Immact, as amended by the Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991, Pub. L. 102-232, 105 Stat. 1733 See
8 U.S.C. section 1252 (a)(2) (1995) (mandating detention of aliens
convicted of an aggravated felony except upon demonstration of lawful
entry and lack of threat to community and flight risk); 8 U.S.C.
section 1226(e) (1995) (mandating detention of aliens convicted of an
aggravated felony who seek admission to the United States except when
home country refuses to repatriate and alien demonstrates lack of
threat to community). The legislative history of former section
242(a)(2) and IIRIRA section 303 also reflects these concerns. See S.
Rep. No. 48, 104th Cong., 1st Sess., 1995 WL 170285 (Apr. 7, 1995); 141
Cong. Rec. S7803, 7823 (daily ed. June 7, 1995) (statement of Senator
Abraham); see also Davis v. Weiss, 749 F. Supp. 47, 50 (D. Conn. 1990);
Morrobel v. Thornburgh, 744 F. Supp. 725, 728 (E.D. Va. 1990)
(Legislators reasonably deemed mandatory detention necessary because
aggravated felons ``are likely to abscond before the completion of the
deportation proceedings.'').
These concerns motivated some of the basic procedural reforms
embodied in IIRIRA. See, e.g., INA section 236(a)(2) (raising minimum
bond during proceedings from $500 to $1,500); 236(c) (mandating
detention of criminals during proceedings); section 236(e) (barring
judicial review of discretionary custody determinations); 241(a)
(requiring detention of aliens during 90-day ``removal period'' after
final order). Congress has specifically addressed the detention of
removable criminal aliens by greatly increasing Service detention
resources over several years, and by expressing in IIRIRA a clear
intention that aliens removable from the United States on the basis of
a crime be detained, except in very limited circumstances, see INA
section 236(c)(1), (2) (permanent provisions mandating detention during
proceedings of most aliens removable on criminal grounds); section
241(a)(2) (``Under no circumstances during the removal period shall the
Attorney General release an alien who has been found'' removable on
criminal or terrorist grounds.). Discretion remains under the statute
only by virtue of transitional rules enacted to ease the burden of
mandatory detention on the Service's detention resources.
Indeed, section 236(c) of IIRIRA would now bar the release during
proceedings of most aliens removable on criminal grounds, were it not
for the Service's notification to Congress invoking the TPCR. Having
invoked the TPCR on the basis of insufficient detention resources, the
Department remains responsible for exercising its temporary discretion
in conformity with congressional intent. In the Department's judgment,
a carefully crafted regime incorporating both case-by-case discretion
and, where appropriate, clear, uniform rules for detention by category,
best achieves that goal.
The Department has retained the structure of the proposed rule,
including its mandatory detention categories, despite the commenters'
concern that the rule encroaches on the authority of immigration judges
and lacks the flexibility of a universal case-by-case approach. The
final rule preserves a wide area of discretion for Service and EOIR
decision makers, but defines limited situations in which a criminal
alien's conduct warrants a per se rule of detention. Case-by-case
discretion remains overwhelmingly the general rule. Per se rules are
drawn narrowly, and only where, in the carefully considered judgment of
the Attorney General, the danger of an erroneous release is
sufficiently grave, and the danger of unwarranted detention during
proceedings sufficiently minimal, as to tip the balance in favor of
such a rule. See Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970)
(Agency appropriately exercises discretion where it ``determines
certain conduct to be so inimical to the statutory scheme that all
persons who have engaged in it shall be ineligible for favorable
consideration, regardless of other factors that otherwise might tend in
their favor.'').
The Department disagrees with comments suggesting that the TPCR
require case-by-case adjudication for all ``lawfully admitted''
criminal aliens. The TPCR, by their terms, grant discretion to the
Attorney General to consider certain categories of criminal aliens for
release. It does not specify that that discretion be exercised by
adjudication rather than by rulemaking. ``It is a well-established
principle of administrative law that an agency to whom Congress grants
discretion may elect between rulemaking and ad hoc adjudication to
carry out its mandate.'' Yang v. INS, 70 F.3d 932, 936 (9th Cir. 1996)
(citing American Hosp. Assoc. v. NLRB, 499 U.S. 606, 611-13 (1991);
NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974)). Agencies may
resolve matters of general applicability through the promulgation of
rules ``even if a statutory scheme requires individualized
determination * * * unless Congress has expressed an intent to withhold
that authority.'' American Hosp., 499 U.S. at 613; see also Fook Hong
Mak, 435 F.2d at 731 (``(I)t is fallacious to reason that because
Congress prevented the Attorney General from exercising any discretion
in favor of those groups[] which Congress had found to have abused the
privileges accorded them, it meant to require him to exercise it in
favor of everyone else on a case-by-case basis even if experience
should convince him
[[Page 27443]]
of the existence of another group with similar potentialities or
actualities of abuse.'' (emphasis in original)).
Reviewing courts have upheld the Department's rulemaking in this
area in light of these principles of administrative law. For example,
in Reno v. Flores, 507 U.S. 292 (1993), the Supreme Court upheld a rule
categorically precluding the release of detained juveniles not able to
have either a legal guardian or one of several listed relatives assume
custody. The Court held the rule to be a permissible exercise of the
Attorney General's discretion, because it rationally advanced a
legitimate governmental objective. Id. at 306. Similarly, in Yang, the
Ninth Circuit upheld a rule categorically denying asylum, as a matter
of discretion, to aliens ``firmly resettled'' prior to arrival in the
United States. In Fook Hong Mak, the Second Circuit upheld a regulation
barring, again in the exercise of the Attorney General's discretion,
any alien transiting the United States without a visa from adjusting
status under section 245 of the Act. Cf. Anetekhai v. INS, 876 F.2d
1218, 1223 (5th Cir. 1989) (Congress may require all aliens who marry
citizens after the institution of deportation proceedings to reside
outside United States for 2 years without opportunity to demonstrate
bona fides of marriage.)
``There is not doubt that preventing danger to the community is a
legitimate regulatory goal.'' United States v. Salerno, 481 U.S. 739,
747 (1987). Preventing abscondment by removable criminal aliens, and
doing so in a way that minimizes waste of the Service's scarce
enforcement resources and promotes consistent application of the law,
are also legitimate goals. This rule exercises a well-established
rulemaking authority of the Attorney General, in an area of ``sovereign
prerogative, largely within the control of the executive and the
legislative, `` Landon v. Plasencia, 459 U.S. 21, 34 (1982).
General Rules Versus Ad Hoc Adjudication for Permanent Resident
Aliens
Several commenters emphasized the special status of permanent
resident aliens. That status entails certain rights with regard to
removal proceedings, see Landon v. Plasencia, supra, but does not
prohibit Congress or the Attorney General from establishing categories
of criminal or terrorist permanent resident aliens whose crimes or
conduct evidence a danger to the community or a flight risk
sufficiently serious to require detention.
Nevertheless, the Department has long maintained, and continues to
maintain, a policy of special care with regard to procedural
protections for permanent resident aliens. This rulemaking does not
depart from that tradition. Permanent resident aliens retain the full
panoply of rights and privileges in removal proceedings. The final rule
affords a full discretionary custody determination to nearly all
permanent resident aliens during such proceedings, and makes exceptions
only in the extreme circumstances specified in Sec. 236.1(c)(5).
The circumstances covered by Sec. 236.1(c)(5) of the proposed rule
uniformly present compelling indicia of flight risk and danger to the
community. First, to be subject to the TPCR, an alien must have a
serious criminal conviction constituting a basis for removal from the
United States. (Indeed, not all crimes constituting grounds for removal
trigger the TPCR.) Second, in order to be subject to mandatory
detention, a permanent resident alien must either (1) have escaped or
attempted to escape from a prison or other lawful government custody;
(2) have fled at high speed from an immigration checkpoint; or (3) have
been convicted of one of the crimes specified in
Sec. 236.1(c)(5)(i)(A). The specified crimes include murder, rape,
sexual abuse of a minor, trafficking in firearms, explosives, or
destructive devices, certain other explosive materials offenses,
kidnaping, extortion, child pornography, selling or buying of children,
slavery, treason, sabotage, disclosing classified information, and
revealing the identity of undercover agents.
Further, to address the concerns raised by commenters concerning
procedural protections for permanent residents, the Department has also
modified the final rule in three ways as it applies to permanent
residents. First, the final rule requires that an alien, including one
admitted as a nonimmigrant, receive a sentence (or sentences in the
aggregate) of at least 2 years, not including portions suspended, in
order to trigger the requirements of Sec. 236.1(c)(5). Permanent
residents with less than the required sentence of 2 years will be
eligible for an individualized custody determination; other lawfully
admitted aliens with less than the required sentence will be considered
under Sec. 236.1(c)(4). Second, the final rule will exempt from
Sec. 236.1(c)(5) permanent residents who have remained free of
convictions, immigration violations, and the like for an uninterrupted
period of 15 years prior to the institution of proceedings (not
including any periods of incarceration or detention).
Finally, the final rule has been revised to provide an
individualized custody determination to former permanent residents
subject to the TPCR who have lost that status through a final order of
deportation under former section 242 of the Act, and have been in
Service custody pursuant to the final order for six months. The
district director's decision may be appealed to the Board of
Immigration Appeals under existing procedures. It is expected that
releases in this category of final-order criminal cases will be rare,
but the authority has been incorporated for use in compelling
circumstances. Similar authority exists under section 241 of the Act
for removal cases commenced on or after April 1, 1997. These three
modifications will further ensure adequate procedural safeguards for
the custody of permanent resident aliens (and aliens challenging the
loss of such status through the prescribed jurisdictional channels).
It is only within the extremely narrow range of offenses specified
in the proposed rule, further narrowed by the aforementioned
modifications, that the final rule requires detention of permanent
resident aliens without discretionary release consideration. The
constitutional concerns expressed by the commenters focus, therefore,
on this very limited class of cases, and generally rest on the claim
that due process prohibits Congress and the Attorney General from
mandating the detention of any class of permanent resident aliens,
regardless of the character of their criminal or terrorist offenses.
The Department disagrees with this position.
The Supreme Court has affirmed much broader administrative
authority over detention of convicted criminals even in areas of law
not informed by the ``plenary power'' doctrine. Individuals convicted
of a crime have necessarily received all the process required by the
criminal justice system; they have been convicted on the basis of
either a voluntary guilty plea or a finding of guilt beyond a
reasonable doubt, with opportunity for appeal and collateral habeas
corpus challenge. In this context, the Supreme Court has upheld a
general congressional delegation of sentencing authority to an
independent agency within the Judicial Branch. Mistretta v. United
States, 488 U.S. 361 (1989). If it is permissible for an agency to
subject a U.S. citizen, upon conviction, to a mandatory sentence
without individualized discretionary consideration, it would seem even
more clearly permissible for the Attorney General to require custody of
a narrow
[[Page 27444]]
class of convicted criminal aliens without individualized discretionary
consideration during the ensuing proceedings to effect their removal.
Cf. Jone v. United States, 463 U.S. 354, 364-65 (1983) (``The fact that
a person has been found, beyond a reasonable doubt, to have committed a
criminal act certainly indicates dangerousness.'') (Approving civil
commitment, based on insanity plea in criminal proceeding, for 50 days
without individualized hearing). Indeed, the power upheld in Mistretta
is far broader than that asserted here, applying to U.S. citizens and
criminal defendants, both of whom enjoy extensive constitutional rights
and procedural protections beyond those afforded to criminal aliens in
civil removal proceedings. See Mathews v. Diaz, 426 U.S. 67, 79-80
(1976) (``In the exercise of its broad power over naturalization and
immigration, Congress regularly makes rules that would be unacceptable
if applied to citizens.''); INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-
40 (1984) (cataloguing constitutional procedural protections guaranteed
to criminal defendants but not to aliens in deportation proceedings).
The doctrine of plenary power bolsters this conclusion. `` `For
reasons long recognized as valid, the responsibility for regulating the
relationship between the United States and our alien visitors has been
committed to the political branches of the Federal Government.' ''
Flores, 507 U.S. at 305 (quoting Mathews v. Diaz, supra, at 81); accord
United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982) (``The
power to regulate immigration--an attribute of sovereignty essential to
the preservation of any nation--has been entrusted by the Constitution
to the political branches of the Federal Government.''). `` `(O)ver no
conceivable subject is the legislative power of Congress more
complete.' '' Flores, 426 U.S. at 305 (quoting Fiallo v. Bell, 430 U.S.
787, 792, (1977); Oceanic Steam Navig. Co. v. Stranahan, 214 U.S. 320,
339 (1909)).
Accordingly, an immigration law is constitutional if it is based
upon a ``facially legitimate and bona fide reason.'' Fiallo, 430 U.S.
at 794-95; Kleindienst v. Mandel, 408 U.S. 753, 770 (1972); Garcia v.
INS, 7 F.3d 1320, 1327 (7th Cir. 1993). ``Once a facially legitimate
and bona fide reason is found, courts will neither look behind the
exercise of discretion, nor test it by balancing its justification
against the constitutional interest asserted by those challenging the
statute.'' Campos v. INS, 961 F.2d 309, 316 (1st Cir. 1992) (citing
Fiallo, 430 U.S. at 794-95). Courts have applied this deferential test
to sustain the constitutionality of one of the TPCR's predecessor
mandatory detention statutes as applied to permanent residents, Davis,
749 F. Supp. at 50; Morrobel, 744 F. Supp. at 728, and the Supreme
Court has applied a similar test in its most recent case addressing
mandatory detention, Flores, 507 U.S. at 306 (upholding juvenile alien
detention regulation as ``rationally advancing some legitimate
governmental purpose'').
Congress' plenary power over immigration extends to all non-
citizens, including permanent resident aliens. Aliens
[w]hen legally admitted * * * have come at the Nation's invitation,
as visitors or permanent residents, to share with us the
opportunities and satisfactions of our land * * * . So long,
however, as aliens fail to obtain and maintain citizenship by
naturalization, they remain subject to the plenary power of Congress
to expel them under the sovereign right to determine what
noncitizens shall be permitted to remain within our borders.
Carlson, 392 U.S. at 534 (upholding immigration detention of permanent
resident alien); accord Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206 (1953) (affirming detention of returning permanent resident
alien); Harisiades v. Shaughnessy, 342 U.S. 580, 587-88 (1952) (``That
aliens remain vulnerable to expulsion after long residence is a
practice that bristles with severities. But it is a weapon of defense
and reprisal confirmed by international law as a power inherent in
every sovereign state. Such is the traditional power of the Nation over
the alien [,] and we leave the law on the subject as we find it.'').
Carlson v. Landon, 342 U.S. 524 (1952)--``the leading case
involving a test of the legality of detention under immigration laws,
``Duldulao v. INS, 90 F.3d 396, 400 (9th Cir. 1996)--squarely addresses
the detention of permanent resident aliens. The Supreme Court in
Carlson upheld the Attorney General's detention of permanent residents
under the Internal Security Act based solely on evidence of their
Communist Party membership and support, without requiring any
individualized inquiry into whether such aliens had ever engaged in
specific acts of sabotage or subversion. 342 U.S. at 541. In essence,
the Court allowed active membership in the Communist Party and espousal
of its ideology to be used as proxies for an alien's dangerousness. The
present rule, by contrast, relies on actual egregious crimes or conduct
of convicted criminals as proxies for danger to the community and
flight risk. Cf. Morrobel, 744 F. Supp. at 728 (``If there was no abuse
of discretion in detaining alien communist in Carlson, it can hardly be
improper for Congress, having determined that aliens convicted of
aggravated felonies * * * are a danger to society, to direct the
Attorney General to detain them pending deportation proceedings.'');
Davis, 749 F. Supp. at 51 (analogizing mandatory detention of
aggravated felons to detention upheld in Carlson).
The Supreme Court has recently applied the principles of Carlson to
a regulations mandating immigration detention of certain juveniles by
category. Flores v. Reno, 507 U.S. 292 (1993). Flores recognizes the
power of Congress and the Attorney General to establish detention rules
that single out classes of aliens for differing treatment, without
providing for an individualized determination as to whether each member
of the class warrants such treatment. When Congress or the Attorney
General does so, the only process due is a determination of whether the
alien in fact belongs to the class at issue.
Hence, the Court in Flores held that the Service could, without
violating procedural or substantive due process, enforce a regulation
generally barring the release of juvenile alien detainees, other than
those able to have a legal guardian or certain specified close
relatives take custody. The Court rejected arguments that the Service
had impressibly employed a ``blanket presumption'' that other
custodians were unsuitable, and that the Service must conduct ``fully
individualized'' hearings on their suitability in each case. Id. at
308, 313-14 & n.9. The Service was not required, the Supreme Court
stated, to ``forswear use of reasonable presumptions and generic
rules.'' Id. at 313. The Service needed only make such individual
determinations as were necessary for accurate application of the
regulation, such as ``is there reason to believe the alien
deportable?'', ``is the alien under 18 years of age?'', and does the
alien have an available adult relative or legal guardian?'' Id. at 313-
14.
Like the regulation upheld in Flores, the final rule provides for
an individualized hearing on whether an alien in custody actually falls
within a category of aliens subject to mandatory detention. In
determining or redetermining custody conditions, the district director
or IJ necessarily asks such individualized questions as ``is this
person an alien?'', ``is there reason to believe that this person was
convicted of a crime covered by the TPCR?'', and ``is there reason to
believe that this person falls within a category
[[Page 27445]]
barred from release under applicable law?'' If the district director or
IJ resolves these individualized questions affirmatively, and thus
ascertains that the alien belongs to a class of convicted criminals
barred from release, ``(t)he particularization and individuation need
go no further than this,'' id. at 314. Under Flores, the IJ or district
director may validly enforce the regulatory policy of detaining those
classes of aliens whose release has been determined by Congress or the
Attorney General to present unacceptable risks. Cf. Davis, 749 F.Supp.
at 52 (``The most effective procedures are those already built into
(one of the TPCR's predecessors), namely those procedures which ensure
that the alien is rightfully an `aggravated felon' under the (INA) and
is properly subject to mandatory detention.'').
Plenary power confers upon Congress the undisputed authority to
curtail a criminal permanent resident alien's right to remain in the
United States. See, e.g., Carlson v. Landon, 342 U.S. at 534 (``The
basis for the deportation of presently undesirable aliens resident in
the United States is not questioned and requires no reexamination.'').
Congress has exercised this power in AEDPA and IIRIRA by barring
permanent residents convicted of an aggravated felony from seeking
discretionary relief from removal. The elimination of relief
considerably increases flight risk, see, e.g., Bertrand v. Sava, 684
F.2d 204, 217 n.16 (2d Cir. 1982) (``The fact that the petitioners are
unlikely to succeed on their immigration applications * * * suggests
that they pose * * * a risk (to abscond) if (released).''), and thus
increases the need for detention of aliens barred in this manner from
remaining in the United States.
The congressional power to compel removal includes the power to
effect removal by the necessary use of detention. ``An alien's freedom
from detention is only a variation on the alien's claim of an interest
in entering the country.'' Clark v. Smith, 967 F.2d 1329, 1332 (9th
Cir. 1992); see also Carlson v. Landon, 342 U.S. at 538; Wong Wing, 163
U.S. at 235; Doherty, 943 F.2d at 212 (``(F)rom the outset of his
detention, Doherty has possessed, in effect, the key that unlocks his
prison cell * * *. Because deportation was less attractive to him than
his present course and because he had availed himself of the statutory
mechanisms provided for aliens facing deportation, Doherty is subject
to the countervailing measures Congress has enacted to ensure the
protection of national interests.''). If Congress may bar specified
criminal aliens from making discretionary applications to remain in the
United States, it may also bar such criminals from making discretionary
applications for release during removal proceedings, especially when
detention is a necessary adjunct of the removal process, Carlson v.
Landon, supra, and the elimination of relief itself creates
overwhelming incentives to abscond, Bertrand v. Sava, supra.
Despite the broad congressional and executive authority recognized
and consistently reaffirmed over the past century by the Supreme Court,
several district courts have held mandatory detention statutes
unconstitutional under the Due Process Clause of the Fifth Amendment.
See, e.g., St. John v. McElroy, 917 F. Supp. 243, 247 (S.D.N.Y. 1996).
In the Department's view, these district courts have misapprehended the
law of immigration detention, and have failed to defer to Congress and
the Executive in matters of immigration as required by the Supreme
Court's teachings.
Some of the district court cases err in applying to immigration
detention the standard for pre-trial criminal bail determinations
articulated in United States v. Salerno, 481 U.S. 739, 747-51 (1987).
See Kellman v. District Director, 750 F. Supp. 625, 627 (S.D.N.Y.
1990); Leader v. Blackman, 744 F. Supp. 500, 507 (S.D.N.Y. 1990). The
Supreme Court, however, has rejected the extension of Salerno in a
post-conviction context. Hilton v. Braunskill, 481 U.S. 770, 779 (1987)
(``[A] successful (state) habeas petitioner is in a considerably less
favorable position than a pretrial arrestee, such as the respondent in
Salerno, to challenge his continued detention pending appeal. Unlike a
pretrial arrestee, a state habeas petitioner has been adjudged guilty
beyond a reasonable doubt * * *.''). Similarly, in Doherty, the Second
Circuit determined that ``a different focus (from criminal bail
standards) must govern the determination of constitutionality of pre-
deportation detention.'' Doherty, 943 F.2d at 210 (citing Dor. v.
District Director, INS, 891 F.2d 997, 1003 (2d Cir. 1989)). In
reviewing the constitutionality of an 8-year detention, Doherty
inquired only into the presence of any bad faith or invidious purpose
in the Service's decision-making process. 943 F.2d at 210-11.
St. John and the other district court cases invalidating mandatory
detention rules as applied to permanent residents generally decline to
apply the ``facially legitimate, bona fied reason'' standard, and
instead engage in a balancing of individual and governmental interests.
The balancing test set forth in Mathews v. Eldridge, 424 U.S. 319
(1976), does not, however, apply in the context of immigration
detention. The Ninth Circuit had applied the Mathews test in this
manner in Flores v. Meese, 942 F.2d 1352, 1364 (9th Cir. 1991). The
Supreme Court reversed, and applied a different test, requiring only
that the challenged regulation ``meet the (unexacting) standard of
rationally advancing some legitimate governmental purpose.'' Flores,
507 U.S. at 306.
Even if a balancing of interests were permitted--under governing
case law, it is not--the paramount interest of the United States in
removing criminal aliens and protecting its citizens form crime would
outweigh any liberty interest that an alien removable from the United
States on criminal grounds could claim. ``[A]n alien's right to be at
liberty during the course of deportation proceedings is circumscribed
by considerations of the national interest,'' and is consequently
``narrow.'' Doherty, 943 F.2d at 208, 209; see also Flores 507 U.S. at
305 (``If we harbored any doubts as to the constitutionality of
institutional custody over unaccompanied juveniles, they would surely
be eliminated as to those juveniles * * * who are aliens.'').
Moreover, because the TPCR apply in removal cases only during
proceedings, and because the Board of Immigration Appeals expedites
detained cases on its docket, the length of an alien's detention under
this rule is necessarily finite. Criminal aliens with an enforceable
final order of removal must be detained and removed within 90 days; if
not removed within that period, such aliens become eligible for
discretionary release consideration. See INA section 241(a). Criminal
aliens ordered deported or removed whose home countries will not accept
repatriation may be considered for release at any time in the
discretion of the Service, and permanent residents who lose that status
through a final order of deportation may generally be considered for
release after six months. These provisions eliminate the possibility of
indefinite detention without discretionary review, and thus avoid
violation of any protected liberty interest.
In contrast to the ``narrow'' liberty interest of aliens removable
on criminal grounds, ``[t]he government's interest in efficient
administration of the immigration laws at the border * * * is weighty.
Further, it must weigh heavily in the balance that control over matters
of immigration is a sovereign prerogative, largely within the control
of the executive and the legislature.'' Landon v. Plasencia, 459 U.S.
21, 34
[[Page 27446]]
(1982). The Government's interest in maintaining the procedures
embodied in the final rule is also ``weighty.'' The detention
requirements for permanent residents single out aliens with egregious
indicia of flight risk and danger to the community. The risk of
recidivism and flight upon release is unquestionably great for these
aliens; the risk of erroneous detention is correspondingly low. The
provisions of the final rule reflect a legislative and executive
judgment that, for the limited classes of criminal permanent resident
aliens specified in the rule, discretionary release poses unacceptable
risks.
Individualized consideration of discretionary release for these
groups would also impose considerable administrative burdens on the
Government. In many instances, bond hearings become an arena of
protracted and costly collateral litigation in their own right, beyond
and apart from the extensive administrative processes for determining
removability, and the criminal justice process. Although the primary
purposes of the final rule are to protect the public and to ensure the
departure of aliens removable on criminal grounds, administrative costs
are a legitimate consideration in determining the best means to achieve
these objectives. Even under the balancing analysis prohibited by
Flores, therefore, these governmental interests would easily outweigh
the ``narrow'' interest of an alien removable on criminal grounds in
making applications to remain at large during proceedings to effect
removal.
The elemental error of Kellman, St. John, and the cases that follow
them lies in their rejection of the Supreme Court's constitutional
deference to Congress and the Executive in matters of immigration. The
Kellman court acknowledges a ``significant degree'' of deference owed
to Congress' substantive decisions regarding deportability, but asserts
that ``the same deference is not mandated when examining the way in
which that deportation is accomplished.''Kellman, 750 F. Supp. at 627.
That assertion finds neither support nor solicitude in the
jurisprudence of the Supreme Court. See, e.g., Flores, supra; Carlson
v. Landon, supra. The respondents in Flores attempted this sort of
distinction, urging the Supreme Court to require individualized
discretionary custody determinations, despite the plenary power
doctrine, as a matter of ``procedural due process.'' 507 U.S. at 308.
The Court's response was unequivocal: ``This is just the `substantive
due process' argument recast in `procedural due process' terms, and we
reject it for the same reasons.'' Id.
In the Department's view, the final rule takes the least
restrictive approach to the detention of permanent residents consistent
with the dictates of public safety and the important public policy of
removing aliens who have committed serious crimes in this country. The
Department is confident that the final rule provides adequate
procedural protections for the custody of permanent resident aliens,
and is aware of no other means of ensuring the requisite level of
protection for the public. This rule draws upon the Department's
experience over time in administering the immigration laws,
incorporates its careful consideration of the individual and public
interests at stake, and reflects its understanding of the will of
Congress. In addressing these concerns, the rule provides needed reform
of current procedures for the detention of aliens, including permanent
resident aliens, who have become subject to removal as a result of
crimes committed in this country.
The Meaning of ``Lawfully Admitted''
For aliens in removal proceedings, the proposed rule construed the
TPCR's term ``lawfully admitted'' by reference to the definition of
``admitted'' in section 101(a)(13) of the Act. Accordingly, the
proposed rule treated returning permanent resident ``applicants for
admission'' as not ``lawfully admitted'' under the TPCR, and hence not
eligible to be considered for release. Several commenters urged that
the Department reconsider this interpretation to recognize an exception
for permanent residents. Permanent residents, even those returning from
abroad, remain ``lawfully admitted for permanent residence'' until
termination of that status by a final administrative order. 8 CFR
1.1(p). One commenter argued, therefore, as follows:
New INA Sec. 101(a)(13) provides that under certain limited
circumstances a lawful permanent resident can be deemed to be
``seeking admission into the United States.'' But this individual
nevertheless remains a lawful permanent resident who is ``lawfully
admitted'' for purposes of discretionary release from detention
under the TPCR. In short, the phrase ``lawfully admitted'' does not
necessarily mean ``is not presently seeking admission.'' Indeed, the
language of Sec. 101(a)(13)--the very provision the INS relies on to
justify its new interpretation (in the proposed rule)--keeps these
concepts distinct.
The Department has carefully considered this and other similar
comments, and will revise its interpretation in the final rule much
along the lines recommended by the commenters.
The final rule will consider an ``arriving alien'' in removal
proceedings to be ``lawfully admitted'' for purposes of the TPCR if
(and only if) the alien remains in status as a permanent resident,
conditional permanent resident, or temporary resident. Accordingly,
such aliens may be considered for parole in the discretion of the
Service.
The TPCR's term ``lawfully admitted'' will apply consistently in
deportation and removal proceedings. In general, an alien who remains
in status as a permanent resident, conditional permanent resident, or
temporary resident will be considered ``lawfully admitted'' for
purposes of the TPCR. Other aliens will be considered ``lawfully
admitted'' only if they last entered lawfully (and are not currently
applicants for admission).
This interpretation of the term ``lawfully admitted'' is not
intended to extend beyond the limited context of the TPCR. Moreover,
under this final rule, a ``lawfully admitted'' alien will in many cases
remain an ``applicant for admission.'' For example, as the Board
recently held in Matter of Collado, Int. Dec. 3333 (BIA 1997), an
arriving permanent resident alien who has committed an offense
described in section 212(a)(2) of the Act remains an ``applicant for
admission'' unless previously granted relief under sections 212(h) or
240A(a) of the Act. The same will be true of an arriving permanent
resident alien who falls within the other exceptions specified in
section 101(a)(13)(C) (i)-(vi) of the Act. Although ``lawfully
admitted'' for purposes of the TPCR during proceedings, such an alien
remains an ``applicant for admission'' and an ``arriving alien,''
charged under section 212 of the Act, and subject solely to the parole
authority of the Service.
Bond Jurisdiction of Immigration Judges
One commenter asserted that the TPCR require the Attorney General
to grant immigration judges bond authority over arriving aliens in
removal proceedings and over aliens in exclusion proceedings. As
explained in the notice of proposed rulemaking, the TPCR do not, in the
Department's view, apply in exclusion proceedings, because they replace
detention provisions applicable in removal and deportation proceedings,
but do not replace the analogous provision applicable in exclusion
proceedings. As regards arriving aliens in removal proceedings, the
TPCR simply confer discretion upon
[[Page 27447]]
the Attorney General, leaving it to the Department to determine which
subordinate officials will exercise custody authority. The Department
has determined that parole authority will remain exclusively with the
Service, as in the past. See generally Shaughnessy v. United States ex
rel. Mezei, 345 U.S. 206 (1953) (affirming Service's decision to detain
returning permanent resident alien); Marcello v. Bonds, 349 U.S. 302
(1955) (rejecting claim that custody decision by Service officer
violates Due Process where Service initiates and prosecutes
proceeding).
Automatic Stay of Certain Criminal Custody Redeterminations To
Preserve Status Quo for Appeal
The proposed rule included a provision allowing the Service to
request an emergency stay of an immigration judge's order redetermining
custody conditions when the Service appeals the custody decision to the
Board of Immigration Appeals. The rule also provided for an automatic
stay of the immigration judge's custody redetermination where the alien
is subject to the TPCR, section 440(c) of AEDPA, or section 236(c) of
the Act, and the district director has set a bond of $10,000 or more
(including outright denial of bond). Both of these provisions were
included as permanent revisions, without regard to the expiration of
the TPCR.
Several commenters objected to the automatic stay provision,
arguing that it encroaches on the authority of immigration judges,
incorporates a criterion (initial bond amount) not adequately
indicative of bail risk, and encourages district directors to set high
bonds to fortify their custody decisions against reversal. The
Department has carefully considered these comments, and will retain the
automatic stay provision in the final rule without modification.
Even accepting that initial bond amounts are an imperfect measure
of bail risk, the automatic stay does not trigger in all cases meeting
the $10,000 threshold. Rather, the $10,000 threshold and the
requirement of a serious criminal offense provide the basis for a
considered determination by the Service to seek an automatic stay in
aid of a custody appeal. Custody appeals are themselves unusual,
undertaken only in compelling cases, and subject to review by
responsible senior officials within the Service. It is expected that
such appeals will remain exceptional, and that Service district
directors will continue to set custody conditions according to their
best assessment of the bail risk presented in each case.
The interests served by the automatic stay are considerable, even
if the provision only occasionally comes into play. A custody decision
that allows for immediate release is effectively final if, as the
Service appeal would necessarily assert, the alien turns out to be a
serious flight risk or a danger to the community. In such a case, the
appeal provides little benefit to the agencies exerting efforts to
effect removal, and less still to the community receiving the dangerous
or absconding alien criminal back into its midst. The automatic stay
provides a safeguard to the public, preserving the status quo briefly
while the Service seeks expedited appellate review of the immigration
judge's custody decision. The Board of Immigration Appeals retains full
authority to accept or reject the Service's contentions on appeal.
Treatment of Criminal Aliens Not Eligible for Relief from Removal
Several commenters objected to the provision in
Sec. 236.1(c)(5)(iv) of the proposed rule requiring detention of
criminal aliens under the TPCR who do not wish to pursue relief from
removal, or who lack eligibility for such relief. The provision
reflects the consideration that such an alien has little incentive to
appear for proceedings, and hence almost always poses a serious bail
risk. Nevertheless, the Department has reconsidered the inclusion of
this provision in Sec. 236.1(c)(5), and will include it instead in
Sec. 236.1(c)(4) of the final rule. Hence, permanent residents and
aliens with old convictions and no subsequent indicia of bail risk will
be eligible to be considered for release even where they lack or
decline to pursue options for relief from removal. The Department would
expect, however, only the most sparing use of this discretionary
authority.
Two commenters objected that bond proceedings during the early
stages of the removal process provide a poor forum to assess
eligibility for relief. The Department understands this concern, and
does not anticipate a conclusive showing of eligibility by the alien at
this stage of proceedings. Rather, the rule reflects the practical
reality that occasions do arise when plainly no relief exists or the
alien does not wish to pursue relief. In those situations,
discretionary release of a criminal alien is generally inappropriate.
Meaning of ``when the alien is released''
One commenter asserted that the TPCR apply only to criminal aliens
released directly from incarceration into Service custody. The
Department has considered this comment, and rejects it for the reasons
stated by the Board of Immigration Appeals in Matter of Noble, Int.
Dec. 3301 (BIA 1997).
Limited Appearances in Bond Proceedings
One commenter requested that the final rule incorporate new
provisions authorizing limited attorney appearances in bond
proceedings, i.e., without obligation to represent the alien in removal
proceedings. The subject matter of this comment concerns the terms of
attorney representation and exceeds the substantive scope of this
rulemaking. The Department remains open, however, to working with
interested individuals and organizations to refine and improve its
regulations in this and other areas within its authority.
Technical and Conforming Amendments
The final rule corrects 8 CFR 3.6(a) to eliminate an outdated
internal cross-reference, and corrects Sec. 3.6(a) and Sec. 236.1(d)(4)
to conform with the final rule's provisions for stays of custody
redeterminations by immigration judges. The final rule also clarifies
the proposed Sec. 236.1(c)(4) by changing the placement of language
excepting permanent resident aliens from the detention requirements of
that paragraph.
Effect on Detention Resources
The Department has taken into consideration the effect of the final
rule on Service detention resources, and expects a management impact.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities because it affects
individual aliens, not small entities.
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 1 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 804 of the
Small
[[Page 27448]]
Business Regulatory Enforcement Act of 1996. This rule will not result
in an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. Accordingly, this regulation has
been submitted to the Office of Management and Budget for review.
Executive Order 12612
The regulation adopted herein 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 Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
List of Subjects
8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 3 is revised to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1226, 1362; 28 U.S.C.
509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953
Comp., p. 1002; sec. 303(b)(3) of Pub. L. 104-208, Div. C.
Sec. 3.6 [Amended]
2. In Sec. 3.6, paragraph (a) is amended by revising the reference
to ``242.2(d) of this chapter'' to read ``236.1 of this chapter,
Sec. 3.19(i),''.
3. In Sec. 3.19, paragraph (h) and (i) are added to read as
follows:
Sec. 3.19 Custody/bond.
* * * * *
(h)(1)(i) While the Transition Period Custody Rules (TPCR) set
forth in section 303(b)(3) of Div. C of Pub. L. 104-208 remain in
effect, an immigration judge may not redetermine conditions of custody
imposed by the Service with respect to the following classes of aliens:
(A) Aliens in exclusion proceedings;
(B) Arriving aliens in removal proceedings, including persons
paroled after arrival pursuant to section 212(d)(5) of the Act;
(C) Aliens described in section 237(a)(4) of the Act;
(D) Aliens subject to section 303(b)(3)(A) of Pub. L. 104-208 who
are not ``lawfully admitted'' (as defined in Sec. 236.1(c)(2) of this
chapter); or
(E) Aliens designated in Sec. 236.1(c) of this chapter as
ineligible to be considered for release.
(ii) Nothing in this paragraph shall be construed as prohibiting an
alien from seeking a redetermination of custody conditions by the
Service in accordance with part 235 or 236 of this chapter. In
addition, with respect to paragraphs (h)(1)(i)(C), (D), and (E) of this
section, nothing in this paragraph shall be construed as prohibiting an
alien from seeking a determination by an immigration judge that the
alien is not properly included within any of those paragraphs.
(2)(i) Upon expiration of the Transition Period Custody Rules set
forth in section 303(b)(3) of Div. C. of Pub. L. 104-208, an
immigration judge may not redetermine conditions of custody imposed by
the Service with respect to the following classes of aliens:
(A) Aliens in exclusion proceedings;
(B) Arriving aliens in removal proceedings, including aliens
paroled after arrival pursuant to section 212(d)(5) of the Act;
(C) Aliens described in section 237(a)(4) of the Act;
(D) Aliens in removal proceedings subject to section 236(c)(1) of
the Act (as in effect after expiration of the Transition Period Custody
Rules); and
(E) Aliens in deportation proceedings subject to section 242(a)(2)
of the Act (as in effect prior to April 1, 1997, and as amended by
section 440(c) of Pub. L. 104-132).
(ii) Nothing in this paragraph shall be construed as prohibiting an
alien from seeking a redetermination of custody conditions by the
Service in accordance with part 235 or 236 of this chapter. In
addition, with respect to paragraphs (h)(2)(i)(C), (D), and (E) of this
section, nothing in this paragraph shall be construed as prohibiting an
alien from seeking a determination by an immigration judge that the
alien is not properly included within any of those paragraphs.
(3) Except as otherwise provided in paragraph (h)(1) of this
section, an alien subject to section 303(b)(3)(A) of Div. C of Pub. L.
104-208 may apply to the Immigration Court, in a manner consistent with
paragraphs (c)(1) through (c)(3) of this section, for a redetermination
of custody conditions set by the Service. Such an alien must first
demonstrate, by clear and convincing evidence, that release would not
pose a danger to other persons or to property. If an alien meets this
burden, the alien must further demonstrate, by clear and convincing
evidence, that the alien is likely to appear for any scheduled
proceeding or interview.
(4) Unremovable aliens. A determination of a district director (or
other official designated by the Commissioner) regarding the exercise
of authority under section 303(b)(3)(B)(ii) of Div. C. of Pub. L. 104-
208 (concerning release of aliens who cannot be removed because the
designated country of removal will not accept their return) is final,
and shall not be subject to redetermination by an immigration judge.
(i) Stay of custody order pending Service appeal: (1) General
emergency stay authority. The Board of Immigration Appeals (Board) has
the authority to stay the order of an immigration judge redetermining
the conditions of custody of an alien when the Service appeals the
custody decision. The Service is entitled to seek an emergency stay for
the Board in connection with such an appeal at any time.
(2) Automatic stay in certain cases. If an alien is subject to
section 242(a)(2) of the Act (as in effect prior to April 1, 1997, and
as amended by section 440(c) of Pub. L. 104-132), section 303(b)(3)(A)
of Div. C of Pub. L. 104-208, or section 236(c)(1) of the Act (as
designated on April 1, 1997), and the district director has denied the
alien's request for release or has set a bond of $10,000 or more, any
order of the immigration judge authorizing release (on bond or
otherwise) shall be stayed upon the Service's filing of a Notice of
Service Intent to Appeal Custody Redetermination (Form EOIR-43) with
the Immigration Court on the day the order is issued, and shall remain
in
[[Page 27449]]
abeyance pending decision of the appeal by the Board of Immigration
Appeals. The stay shall lapse upon failure of the Service to file a
timely notice of appeal in accordance with Sec. 3.38.
PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
3. The authority citation for part 236 is revised 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.
4. Section 236.1 is amended by:
a. Revising paragraphs (c)(1) and (d)(4);
b. Redesignating paragraphs (c)(2) through (c)(5), as paragraphs
(c)(8) through (c)(11) respectively and by revising newly redesignated
paragraph (c)(11); and by
(c) Adding new paragraphs (c)(2) through (c)(7), to read as
follows:
Sec. 236.1 Apprehension, custody, and detention.
* * * * *
(c) * * *
(1) In general. (i) After the expiration of the Transition Period
Custody Rules (TPCR) set forth in section 303(b)(3) of Div. C of Pub.
L. 104-208, no alien described in section 236(c)(1) of the Act may be
released from custody during removal proceedings except pursuant to
section 236(c)(2) of the Act.
(ii) Paragraph (c)(2) through (c)(8) of this section shall govern
custody determinations for aliens subject to the TPCR while they remain
in effect. For purposes of this section, an alien ``subject to the
TPCR'' is an alien described in section 303(b)(3)(A) of Div. C of Pub.
L. 104-208 who is in deportation proceedings, subject to a final order
of deportation, or in removal proceedings. The TPCR do not apply to
aliens in exclusion proceedings under former section 236 of the Act,
aliens in expedited removal proceedings under section 235(b)(1) of the
Act, or aliens subject to a final order of removal.
(2) Aliens not lawfully admitted. Subject to paragraph (c)(6)(i) of
this section, but notwithstanding any other provision within this
section, an alien subject to the TPCR who is not lawfully admitted is
not eligible to be considered for release from custody.
(i) An alien who remains in status as an alien lawfully admitted
for permanent residence, conditionally admitted for permanent
residence, or lawfully admitted for temporary residence is ``lawfully
admitted'' for purposes of this section.
(ii) An alien in removal proceedings, in deportation proceedings,
or subject to a final order of deportation, and not described in
paragraph (c)(2)(i) of this section, is not ``lawfully admitted'' for
purposes of this section unless the alien last entered the United
States lawfully and is not presently an applicant for admission to the
United States.
(3) Criminal aliens eligible to be considered for release. Except
as provided in this section, or otherwise provided by law, an alien
subject to the TPCR may be considered for release from custody if
lawfully admitted. Such an alien must first demonstrate, by clear and
convincing evidence, that release would not pose a danger to the safety
of other persons or of property. If an alien meets this burden, the
alien must further demonstrate, by clear and convincing evidence, that
the alien is likely to appear for any scheduled proceeding (including
any appearance required by the Service or EOIR) in order to be
considered for release in the exercise of discretion.
(4) Criminal aliens ineligible to be considered for release except
in certain special circumstances. An alien, other than an alien
lawfully admitted for permanent residence, subject to section
303(b)(3)(A) (ii) or (iii) of Div. C. of Pub. L. 104-208 is ineligible
to be considered for release if the alien:
(i) Is described in section 241(a)(2)(C) of the Act (as in effect
prior to April 1, 1997), or has been convicted of a crime described in
section 101(a)(43)(B), (E)(ii) or (F) of the Act (as in effect on April
1, 1997);
(ii) Has been convicted of a crime described in section
101(a)(43)(G) of the Act (as in effect on April 1, 1997) or a crime or
crimes involving moral turpitude related to property, and sentenced
therefor (including in the aggregate) to at least 3 years'
imprisonment;
(iii) Has failed to appear for an immigration proceeding without
reasonable cause or has been subject to a bench warrant or similar
legal process (unless quashed, withdrawn, or cancelled as improvidently
issued);
(iv) Has been convicted of a crime described in section
101(a)(43)(Q) or (T) of the Act (as in effect on April 1, 1997);
(v) Has been convicted in a criminal proceeding of a violation of
section 273, 274, 274C, 276, or 277 of the Act, or has admitted the
factual elements of such a violation;
(vi) Has overstayed a period granted for voluntary departure;
(vii) Has failed to surrender or report for removal pursuant to an
order of exclusion, deportation, or removal;
(viii) Does not wish to pursue, or is statutorily ineligible for,
any form of relief from exclusion, deportation, or removal under this
chapter or the Act; or
(ix) Is described in paragraphs (c)(5)(i)(A), (B), or (C) of this
section but has not been sentenced, including in the aggregate but not
including any portions suspended, to at least 2 years' imprisonment,
unless the alien was lawfully admitted and has not, since the
commencement of proceedings and within the 10 years prior thereto, been
convicted of a crime, failed to comply with an order to surrender or a
period of voluntary departure, or been subject to a bench warrant or
similar legal process (unless quashed, withdrawn, or cancelled as
improvidently issued). An alien eligible to be considered for release
under this paragraph must meet the burdens described in paragraph
(c)(3) of this section in order to be released from custody in the
exercise of discretion.
(5) Criminal aliens ineligible to be considered for release. (i) A
criminal alien subject to section 303(b)(3)(A)(ii) or (iii) of Div. C
of Pub. L. 104-208 is ineligible to be considered for release if the
alien has been sentenced, including in the aggregate but not including
any portions suspended, to at least 2 years' imprisonment, and the
alien
(A) Is described in section 237(a)(2)(D)(i) or (ii) of the Act (as
in effect on April 1, 1997), or has been convicted of a crime described
in section 101(a)(43)(A), (C), (E)(i), (H), (I), (K)(iii), or (L) of
the Act (as in effect on April 1, 1997);
(B) Is described in section 237(a)(2)(A)(iv) of the Act; or
(C) Has escaped or attempted to escape from the lawful custody of a
local, State, or Federal prison, agency, or officer within the United
States.
(ii) Notwithstanding paragraph (c)(5)(i) of this section, a
permanent resident alien who has not, since the commencement of
proceedings and within the 15 years prior thereto, been convicted of a
crime, failed to comply with an order to surrender or a period of
voluntary departure, or been subject to a bench warrant or similar
legal process (unless quashed, withdrawn, or cancelled as improvidently
issued), may be considered for release under paragraph (c)(3) of this
section.
(6) Unremovable aliens and certain long-term detainees. (i) If the
district director determines that an alien subject to section
303(b)(3)(A)(ii) or (iii) of Div. C of Pub. L. 104-208 cannot be
removed from the United States because the designated country of
removal or deportation will not accept the alien's
[[Page 27450]]
return, the district director may, in the exercise of discretion,
consider release of the alien from custody upon such terms and
conditions as the district director may prescribe, without regard to
paragraphs (c)(2), (c)(4), and (c)(5) of this section.
(ii) The district director may also, notwithstanding paragraph
(c)(5) of this section, consider release from custody, upon such terms
and conditions as the district director may prescribe, of any alien
described in paragraph (c)(2)(ii) of this section who has been in the
Service's custody for six months pursuant to a final order of
deportation terminating the alien's status as a lawful permanent
resident.
(iii) The district director may release an alien from custody under
this paragraph only in accordance with the standards set forth in
paragraph (c)(3) of this section and any other applicable provisions of
law.
(iv) The district director's custody decision under this paragraph
shall not be subject to redetermination by an immigration judge, but,
in the case of a custody decision under paragraph (c)(6)(ii) of this
section, may be appealed to the Board of Immigration Appeals pursuant
to paragraph (d)(3)(iii) of this section.
(7) Construction. A reference in this section to a provision in
section 241 of the Act as in effect prior to April 1, 1997, shall be
deemed to include a reference to the corresponding provision in section
237 of the Act as in effect on April 1, 1997. A reference in this
section to a ``crime'' shall be considered to include a reference to a
conspiracy or attempt to commit such a crime. In calculating the 10-
year period specified in paragraph (c)(4) of this section and the 15-
year period specified in paragraph (c)(5) of this section, no period
during which the alien was detained or incarcerated shall count toward
the total. References in paragraph (c)(6)(i) of this section to the
``district director'' shall be deemed to include a reference to any
official designated by the Commissioner to exercise custody authority
over aliens covered by that paragraph. Nothing in this part shall be
construed as prohibiting an alien from seeking reconsideration of the
Service's determination that the alien is within a category barred from
release under this part.
* * * * *
(11) An immigration judge may not exercise the authority provided
in this section, and the review process described in paragraph (d) of
this section shall not apply, with respect to any alien beyond the
custody jurisdiction of the immigration judge as provided in
Sec. 3.19(h) of this chapter.
(d) * * *
(4) Effect of filing an appeal. The filing of an appeal from a
determination of an immigration judge or district director under this
paragraph shall not operate to delay compliance with the order (except
as provided in Sec. 3.19(i)), nor stay the administrative proceedings
or removal.
* * * * *
Dated: May 12, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-13178 Filed 5-18-98; 8:45 am]
BILLING CODE 4410-10-M
