[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  

[[Page 48183]]


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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

[[Page 48186]]

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