[Federal Register Volume 62, Number 178 (Monday, September 15, 1997)]
[Proposed Rules]
[Pages 48183-48187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24411]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 /
Proposed Rules
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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. 2114-97]
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: Proposed rule.
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SUMMARY: This rule proposes to amend the regulations of the Immigration
and Naturalization Service (Service) and the Executive Office for
Immigration Review (EOIR) by 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
regarding application of the TPCR.
DATES: Written comments must be submitted on or before October 15,
1997.
ADDRESSES: Please submit written comments, including an original and
two copies, to the Director, Policy Directives and Instructions Branch,
Immigration and Naturalization Service, 425 ``I'' Street NW., Room
5307, Washington, DC 20536. To ensure proper handling, please reference
INS number 1855-97 on all correspondence. Comments are available for
public inspection at the above address by calling (202) 514-3048 to
arrange for an appointment.
FOR FURTHER INFORMATION CONTACT:
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 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. No. 104-132, 110
Stat. 1214, and section 236(c) of the Immigration and Nationality Act
(Act), as amended by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, section
303(a), 110 Stat. 3009. By operation of law, see IIRIRA section
303(b)(2), the notification results in the temporary replacement of
these mandatory detention provisions with the Transition Period Custody
Rules set forth in IIRIRA section 303(b)(3). 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. This proposed rule establishes
uniform rules and standards to implement the release provisions of the
TPCR for criminal aliens.
The TPCR apply, inter alia, to specifically enumerated classes of
criminal aliens in deportation proceedings (i.e., where the alien is
deportable and proceedings commenced before April 1, 1997), and in
removal proceedings (i.e., where the alien is either deportable or
inadmissible, and proceedings commenced on or after April 1, 1997). The
TPCR do not apply in exclusion proceedings (i.e., where the alien is
inadmissible and proceedings commenced before April 1, 1997) because
the TPCR replace mandatory detention provisions applicable to
deportation and removal proceedings, see IIRIRA section 303(b)(2), but
do not replace the analogous provision applicable to exclusion
proceedings, section 236(e) of the INA (as designated prior to April 1,
1997).
The TPCR apply differently with respect to aliens in removal
proceedings than they do with respect to aliens in deportation
proceedings. The TPCR replace revised section 236(c) of the Immigration
and Nationality Act (Act), which governs the detention of specified
classes of aliens during removal proceedings. The TPCR do not, however,
replace the revised section 241 of the Act, which governs detention
after a final order of removal. As a result, the TPCR apply only during
removal proceedings; the revised section 241 of the Act governs
detention after a final order of removal.
By contrast, the TPCR apply both during deportation proceedings and
after a final order of deportation (tracking the coverage of section
440(c) of AEDPA). It is expected, however,that few, if any, criminal
aliens with a final order of deportation will be released in the
exercise of discretion, because it will be exceptionally difficult for
such an alien to demonstrate the absence of a flight risk by clear and
convincing evidence as required to be considered for release in the
exercise of discretion. In a report issued in March 1996, the Office of
the Inspector General of the United States Department of Justice found
that 89 percent of non-detained aliens with final orders of deportation
failed to surrender for deportation when ordered to do so by the
Service (Report #I-96-03). Finally, as in the past, no custody
determination or redetermination need by undertaken by the Service if
actual deportation or removal is imminent.
The TPCR apply to the following classes of aliens in deportation
proceedings (or subject to a final order of deportation): aliens
convicted of aggravated felonies, under the definition of ``aggravated
felony'' as amended by IIRIRA; aliens deportable for having committed
any offense covered in section 241(a)(2)(A)(ii) (multiple crimes
involving moral turpitude), (A)(iii) (aggravated felonies), (B)
(certain controlled substance offenses), (C) (certain firearms
offenses), or (D) (certain other crimes) of the Act, as designated
prior to April 1, 1997. In removal proceedings, the TPCR will apply to
these same categories of aliens, and also to aliens inadmissible under
section 212(a)(2) or 212(a)(3)(B) of the Act. Again, the TPCR do not
apply to aliens in exclusion proceedings.
Aliens not subject to the TPCR will fall within the general
detention
[[Page 48184]]
authority applicable to aliens in deportation, exclusion, or removal
proceedings. Section 242(a)(1) of the Act (as designated prior to April
1, 1997) continues to govern the detention of deportable aliens not
falling within the coverage of the TPCR. Sections 212(d)(5) (as amended
by Pub. L. 104-208) and 235(b) (as designated prior to April 1, 1997)
of the Act continue to govern the detention and parole of non-
aggravated felons in exclusion proceedings. (Section 236(e) of the Act,
as designated prior to April 1, 1997, continues to govern the detention
of aggravated felons in exclusion proceedings.) Sections 235(b)(2) and
236(a) of the Act govern the detention of aliens in removal proceedings
who are not subject to the TPCR. The TPCR do not affect the detention
of aliens placed into expedited removal proceedings under section
235(b)(1) of the Act (as in effect on April 1, 1997).
Only two classes of criminal aliens subject to the TPCR may be
considered for release from custody. The first class of releasable
criminal aliens consists of those who have been ``lawfully admitted.''
The second class consists of those who cannot be removed from the
United States because the designated country of deportation or removal
will not accept their return.
As to the first class, the term ``lawfully admitted'' will have a
slightly different meaning in removal proceedings than in deportation
proceedings. Without exception, any alien in deportation proceedings or
subject to a final order of deportation whose last entry into the
United States was lawful is ``lawfully admitted'' for purposes of the
TPCR. An alien in deportation proceedings or subject to a final order
of deportation whose last entry was unlawful will not be considered
``lawfully admitted'' for purposes of the TPCR (except that an alien in
deportation proceedings who remains in status as a permanent resident,
conditional permanent resident, or temporary resident shall be
considered ``lawfully admitted'' despite an unlawful last entry). In
contrast, ``lawful admission'' for aliens in removal proceedings will
be determined according to the definition of ``admission'' in section
101(a)(13) of the Act (as amended by Pub. L. No. 104-208). Pursuant to
the statutory definition, an alien who last entered the United States
upon inspection and authorization by an immigration officer will be
considered ``lawfully admitted.''
As to the second class of criminals who may be considered for
release under the TPCR, i.e., those whose designated country of
deportation or removal will not accept their return, release authority
will rest with the Service district director (or other appropriate INS
officer), the official best situated to review and assess
unremovability. The Service has developed successful procedures for
review and, where appropriate, release of aliens within this small
subclass of detainees. The Service's determination of unremovability
will be final, and custody determinations pursuant to section
303(b)(3)(B)(ii) of IIRIRA will not be subject to redetermination by
EOIR.
The statute provides that, in order to be considered for release in
the exercise of discretion, criminal aliens subject to the TPCR who
fall within either of the two releasable classes must demonstrate that
they will not pose a danger to the safety of other persons or of
property, and will likely appear for any scheduled proceeding,
including immigration hearings or other appearances required by the
Service or EOIR. Following precedent decisions of the Board of
Immigration Appeals (Board) interpreting similar language, the inquiry
into danger to persons and property is separate from and precedes the
inquiry into flight risk. If the alien cannot demonstrate the absence
of danger to persons or property, the inquiry ends. Only upon such a
showing may the alien further demonstrate the absence of flight risk in
order to be considered fro release in the exercise of discretion.
The proposed rule establishes uniform rules and standards for the
exercise of the discretion conferred by the statute upon the Attorney
General. The overarching concern reflected in the proposed rule is that
aliens posing a danger to persons or property remain in custody until
removed from the United States. A second concern arises from the high
percentage of aliens released from Service custody who abscond from
lawful processes and become fugitives. In general, Congress has
expressed in IIRIRA a clear intention that criminal aliens be detained,
subject only to very limited exceptions.
The proposed rule accommodates these concerns by creating three
classes of criminal aliens subject to the TPCR. The first class
consists of criminals judged by the Attorney General to present, by
reason of their prior conviction or conduct, a danger to the community
or a flight risk so great as to warrant a per se rule of non-release.
Aliens in this class include, for example, those who have been
convicted of murder, rape, or sexual abuse of a minor, and those who
have escaped or attempted to escape from the lawful custody of a
prison, government agency, or officer.
The second class consists of criminal aliens whose prior
convictions or conduct are sufficiently serious to present a strong
detention interest. Aliens in this class would include, for example,
those who have been convicted of controlled substance trafficking or
lawful firearm possession, or who have failed to appear for a criminal
trial or for removal. In such cases, detention will generally be
required, but two classes of lawfully admitted aliens will be afforded
an opportunity to present countervailing evidence and be considered for
release: (1) aliens lawfully admitted for permanent residence; and (2)
lawfully admitted aliens who have remained free of convictions,
immigration violations, and the like for an uninterrupted period of ten
years prior to the institution of proceedings (not including any
periods of incarceration or detention). However, lawfully admitted
aliens from both classes who are eligible to present countervailing
evidence must still establish by clear and convincing evidence that
they pose no danger to the safety of persons or of property and that
they are likely to appear for any scheduled proceeding. As discussed
above, the meaning of ``lawfully admitted'' will differ for aliens in
deportation proceedings and for those in removal proceedings.
The third class consists of criminal aliens who have been convicted
of lesser serious offenses, such as crimes of theft with an aggregate
sentence of less than three years, and simple possession of a
controlled substance. In such cases, lawfully admitted aliens will be
subject to the TPCR's baseline criteria alone, and may be considered
for release upon demonstrating, by clear and convincing evidence, a
lack of dangerousness and an absence flight risk. Aliens in the third
class may still be found to present extremely serious indicia of flight
risk or danger to the safety of persons or of property, and it is
expected that even in this class only unusually compelling cases will
warrant release in the exercise of discretion. Again, the meaning of
``lawfully admitted'' will differ for aliens in deportation proceedings
and for those in removal proceedings.
The proposed rule sets forth the governing standards both for the
Service and for EOIR. With some exceptions, the provisions are
parallel, and, as in the past, the procedural regulations in Sec. 3.19
operate pursuant to the substantive regulations (her, in part 236)
implementing the detention and release authority conferred in the
statute. The
[[Page 48185]]
immigration judges will generally continue to exercise custody
redetermination jurisdiction over deportable aliens and aliens who
enter without inspection (subject to the exceptions and within the
limits established in the TPCR and in this proposed rule). Aliens
arriving at ports-of-entry and other ``arriving aliens'' (including
aliens paroled pursuant to section 212(d)(5) of the Act) will remain
subject solely to the parole authority of the Service.
The proposed rule also contains provisions for a stay of an
immigration judge's order redetermining custody conditions when the
Service appeals the custody decision to the Board. The rule provides
for an automatic stay where the alien is subject to the TPCR, section
236(c) of the Act, or former 242(a)(2) of the Act (as amended by
AEDPA), and the district director has set a bond of $10,000 or more (or
has denied bond outright). The stay remains in effect until the Board
renders a decision on the merits of the custody appeal.
In all other cases, the rule allows the Service to file an appeal
of the custody decision with the Board, and an emergency stay request
in connection with the appeal. The Board will than have discretion to
grant or deny the stay request. These provisions provide an added
measure of assurance that persons believed to present a danger to the
community or a risk of flight are not released.
30-Day Comment Period
This rule is being proposed with a 30-day notice and comment period
due to the urgent need for regulatory guidance to Service officers and
immigration judges regarding application of the TPCR.
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 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 804 of the
Small 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, Immigration
and Naturalization Service, 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 implication to warrant the
preparation of a Federalism Assessment.
Executive Order 12988
This proposed 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
Administratvie practice and procedure, Aliens, Immigration.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 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.
2. In Sec. 3.19, paragraphs (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 Public Law 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 Public Law 104-208
who are not ``lawfully admitted'' (as defined in Sec. 236.1(c)(3) 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 seeding 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 those paragraphs.
(2)(i) Upon expiration of the Transition Period Custody Rules set
forth in section 303(b)(3) of Public Law 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 Public Law 104-132.
(ii) Nothing in this paragraph shall be construed as prohibiting an
alien from
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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 those paragraphs
(3) Except as otherwise provided in paragraph (h)(1) of this
section, an alien subject to section 303(b)(3)(A) of Public Law 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 Public Law 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
form 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 Public Law 104-132), section
303(b)(3)(A) of Public Law 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 Form EOIR-43
with the Immigration Court on the day the order is issued, and shall
remain in 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 Pub. L. No. 104-208; 8 CFR part 2.
4. Section 236.1 is amended by:
a. Revising paragraph (c)(1);
b. Redesignating paragraphs (c)(2) through (c)(5), as paragraphs
(c)(8) through (c)(11) respectively; and by
c. Adding new paragraphs (c)(2) through (c)(7), to read as follows:
Sec. 236.1 Apprehension, custody, and detention.
* * * * *
(c) * * *
(1) (i) After the expiration of the Transition Period Custody Rules
(TPCR) set forth in section 303(b)(3) of Public Law 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) Paragraphs (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 Public Law 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) 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 in deportation proceedings or subject to a final order
of deportation is ``lawfully admitted'' for purposes of this section if
the alien's last entry into the United States was lawful. An alien in
deportation proceedings or subject to a final order of deportation
whose last entry was unlawful will not be considered ``lawfully
admitted'' for purposes of this section, unless the alien remains in
status as an alien lawfully admitted for permanent residence,
conditionally admitted for permanent residence, or lawfully admitted
for temporary residence.
(ii) An alien in removal proceedings is ``lawfully admitted'' for
purposes of this section if the alien has been `'admitted'' within the
terms of section 101(a)(13) of the act (as in effect on April 1, 1997).
(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 subject to section
303(b)(3)(A) (ii) or (iii) of Pub. L. No. 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 year's
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 canceled 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; or
(vii) Has failed to surrender or report for removal pursuant to an
order of exclusion, deportation, or removal,
[[Page 48187]]
unless the alien was lawfully admitted and either remains in status as
a permanent resident or has not, since the commencement of proceedings
or 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 canceled 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. A
criminal alien subject to section 303(b)(3)(A) (ii) or (iii) of Pub. L.
No. 104-208 is ineligible to be considered for release if the alien:
(i) Is described in section 237(a)(2)(D) (i) or (ii) (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);
(ii) Is described in section 237(a)(2)(A)(iv) of the Act;
(iii) Has escaped or attempted to escape from the lawful custody of
a local, state, or Federal prison, agency, or officer within the United
States; or
(iv) 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.
(6) If the district director determines that an Alien subject to
section 303(b)(3)(A) (ii) or (iii) of Pub. L. 104-208 cannot be removed
from the United States because the designated country of removal of
deportation will not accept the alien's return, the district director
may, in the exercise of discretion, release the alien from custody upon
such terms and conditions as the district director may prescribe,
without regard to paragraphs (c)(2) through (c)(5) of this section.
Under no circumstances, however, shall the district director release
from custody an alien whose release would pose a danger to persons or
to property, or who is unlikely to appear for any scheduled proceeding
(including any appearance required by the Service or EOIR). The
district director's custody decision shall not be subject to
redetermination by an immigration judge.
(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, no period
during which the alien was detained or incarcerated shall count toward
the total. 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.
* * * * *
Dated: September 5, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-24411 Filed 9-11-97; 8:45 am]
BILLING CODE 4410-10-M
