98-13178. 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  

  • [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]
    
    
    
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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.
    
    -----------------------------------------------------------------------
    
    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
    
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    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
    
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    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
    
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    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
    
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    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
    
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    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
    
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    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
    
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    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
    
    
    

Document Information

Effective Date:
6/18/1998
Published:
05/19/1998
Department:
Justice Department
Entry Type:
Rule
Action:
Final rule.
Document Number:
98-13178
Dates:
This rule is effective June 18, 1998.
Pages:
27441-27450 (10 pages)
Docket Numbers:
INS No. 1855-97, AG Order No. 2152-98
RINs:
1115-AE88: Procedures for the Detention and Release of Criminal and Terrorist Aliens by the INS and for Custody Redeterminations by the Executive Office for Immigration Review
RIN Links:
https://www.federalregister.gov/regulations/1115-AE88/procedures-for-the-detention-and-release-of-criminal-and-terrorist-aliens-by-the-ins-and-for-custody
PDF File:
98-13178.pdf
CFR: (6)
8 CFR 303(b)
8 CFR 3.19(h)
8 CFR 3.19(i),''
8 CFR 3.6
8 CFR 3.19
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