[Federal Register Volume 63, Number 96 (Tuesday, May 19, 1998)]
[Rules and Regulations]
[Pages 27441-27450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13178]



[[Page 27441]]

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service and Executive Office for 
Immigration Review

8 CFR Parts 3 and 236

[INS No. 1855-97; AG Order No. 2152-98]
RIN 1115-AE88


Procedures for the Detention and Release of Criminal Aliens by 
the Immigration and Naturalization Service and for Custody 
Redeterminations by the Executive Office for Immigration Review

AGENCY: Immigration and Naturalization Service, and Executive Office 
for Immigration Review, Justice.

ACTION: Final rule.

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SUMMARY: This rule amends the regulations of the Immigration and 
Naturalization Service (Service) and the Executive Office for 
Immigration Review (EOIR), establishing a regulatory framework for the 
detention of criminal aliens pursuant to the Transition Period Custody 
Rules (TPCR) set forth in the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA). This rule is necessary to provide 
uniform guidance to Service officers and immigration judges (IJs) 
regarding application of the TPCR.

DATES: This rule is effective June 18, 1998.

FOR FURTHER INFORMATION CONTACT:
Brad Glassman, Office of the General Counsel, Immigration and 
Naturalization Service, 425 I Street NW., Room 6100, Washington, DC 
20536, telephone (202) 305-0846.

SUPPLEMENTARY INFORMATION: 

Background

    On October 9, 1996, the Commissioner of the Immigration and 
Naturalization Service (Service) notified Congress that the Service 
lacks the detention space and personnel necessary to comply with the 
mandatory detention provisions of section 440(c) of the Antiterrorism 
and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, 110 
Stat. 1214, and section 236(c) of the Immigration and Nationality Act 
(INA or Act), as amended by the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, Div. C, 
section 303(a), 110 Stat. 3009. By operation of law, see IIRIRA section 
303(b)(2), the notification resulted in the temporary replacement of 
these mandatory detention provisions with the Transition Period Custody 
Rules (TPCR) set forth in IIRIRA section 303(b)(3). A second 
notification on September 29, 1997, continued the TPCR in effect for an 
additional year. The TPCR provide for the detention, inter alia, of 
specified classes of criminal aliens, and allow some of these aliens to 
be considered for release in the exercise of the Attorney General's 
discretion.
    The Department of Justice (Department) published a proposed rule to 
implement the TPCR on September 15, 1997, at 62 FR 48183, with written 
comments due by October 15, 1997. The proposed rule established three 
categories of criminal aliens for purposes of detention and release 
under the TPCR. Aliens in the first category were subject to mandatory 
detention. Aliens in the second category were subject to mandatory 
detention except in the case of lawful permanent resident aliens and 
certain other lawfully admitted aliens who had remained free of crimes, 
immigration violations, and the like for a 10-year period. Aliens 
excepted from the second category and aliens in the third category 
could be considered for release on a case-by-case basis, in the 
exercise of discretion.
    The proposed rule also established procedures for the Service to 
obtain a stay of an immigration judge's custody decision in conjunction 
with an appeal of the custody decision to the Board of Immigration 
Appeals (Board). In providing explicit authority for the Service to 
seek an emergency stay, the rule codified a long-standing 
administrative practice. The rule departed from present practice, 
however, in providing for an automatic stay in certain criminal cases 
where the Service appeals the redetermination of a bond set at $10,000 
or more (including an outright denial of bond).
    The Department has received a number of public comments 
recommending modifications of the proposed rule. Because several of the 
comments overlap or endorse the submissions of other commenters, the 
following discussion will address the comments by topic rather than by 
response to each comment individually.

General Rules Versus Ad Hoc Adjudication

    Several commenters objected to the establishment of categories of 
non-releasable deportable and inadmissible criminal aliens based on 
factors strongly indicating a poor bail risk. The commenters expressed 
a preference for case-by-case custody determinations in all situations, 
criticizing categorical rules as burdensome with respect to the 
Service's detention resources, less flexible and nuanced than case-by-
case consideration, invasive of immigration judges' bond 
redetermination authority, contrary to the TPCR, and, in the case of 
permanent resident aliens, unconstitutional.
    The Department has carefully considered the views of the 
commenters, and will retain the basic structure of the proposed rule, 
with certain modifications. This rule implements an important component 
of a congressional and executive policy to ensure the swift and certain 
removal of aliens who commit serious crimes in this country. The 
success of this policy, in the estimation of both Congress and the 
Department, significantly affects the well being of the United States 
and its law-abiding citizen, residents, and visitors.
    Congress' near-complete power over immigration transcends the 
specific grant of authority in Article 1, Section 8 of the 
Constitution, and derives from the ``inherent and inalienable right of 
every sovereign and independent nation'' to determine which aliens it 
will admit or expel. Fong Yue Ting v. United States, 149 U.S. 698, 711 
(1893); see also, e.g,. Landon v. Plasencia, 459 U.S. 21, 32 (1982) 
(``[T]he power to admit or exclude aliens is a sovereign 
prerogative,''); Kleindienst v. Mandel, 408 U.S. 753, 766-67 (1972) (`` 
`Policies pertaining to the entry of aliens and their right to remain 
here are peculiarly concerned with the political conduct of 
government.' '' (quoting Galvan v. Press, 347 U.S. 522, 531 (1954)); 
Flemming v. Nestor, 363 U.S. 603, 616 (1960) (describing ``power of 
Congress to fix the conditions under which aliens are to be permitted 
to enter and remain in this country'' as ``plenary''); Harisiades v. 
Shaughnessy, 342 U.S. 580, 587-88 (1952) (Power to remove even 
permanent resident aliens is ``confirmed by international law as a 
power inherent in every sovereign state.''); Mahler v. Eby, 264 U.S. 
32, 39 (1924) (describing as ``unquestioned'' the power of Congress 
`'to rid the country of persons who have shown by their career that 
their continued presence here would not make for the safety or welfare 
of society''). More than a century ago, the Supreme Court upheld 
detention

as part of the means necessary to give effect to the provisions for 
the exclusion of expulsion of aliens * * *. Proceedings to exclude 
or expel would be in vain if those accused could not be held in 
custody pending the inquiry into their true character and while 
arrangements were being made for their deportation.

Wong Wing v. United States, 163 U.S. 228, 235 (1896); see also Carlson 
v. Landon, 342 U.S. 524, 538 (1952) (``Detention is

[[Page 27442]]

necessarily a part of this deportation procedure. Otherwise aliens 
arrested for deportation would have opportunities to hurt the United 
States during the pendency of deportation proceedings.''). It is 
therefore ``axiomatic'' that an alien's interest in being at liberty 
during the course of immigration proceedings is ``narrow'' and 
``circumscribed by considerations of the national interest.'' Doherty 
v. Thornburgh, 943 F.2d 204, 208, 208, 209 (2d Cir. 1991), cert. 
dismissed 503 U.S. 901 (1992),
    The detention of removable criminal aliens during proceedings 
serves two essential purposes: Ensuring removal by preventing the alien 
from fleeing, and protecting the community from further criminal acts 
or other dangers. The stakes for the Government are considerable in 
this context. The apprehension of a criminal alien who absconds during 
the removal process is expensive, time-consuming, and, in many cases, 
dangerous both to Government personnel and to civilians. Failure to 
recover such an alien for removal means not only scores of hours wasted 
by immigration judges, Service attorneys, interpreters, immigration 
officers, and clerical and support staff, but also a fugitive alien 
criminal beyond the control of lawful process and at large in the 
community. Released aliens who abscond calculate--correctly--``that the 
INS lacks the resources to conduct a dragnet.'' Ofosu v. McElroy, 98 
F.3d 694, 702 (2d Cir. 1996). As further discussed below, abscondment 
by criminal aliens subject to removal has become disturbingly frequent.
    Beginning with the Anti-Drug Abuse Act of 1988 (ADAA), Pub. L. 100-
690, 102 Stat. 4181, continuing with the Immigration Act of 1990 
(Immact), Pub. L. 101-649, 104 Stat. 4978, and culminating with the 
recent enactment of AEDPA and IIRIRA, successive legislation over the 
past decade has mandated increasingly severe immigration consequences 
for aliens convicted of serious crimes, and has imposed restrictive 
detention conditions on such aliens during removal proceedings. 
Congress' concern with criminal aliens who flee or commit additional 
crimes is plainly evident in the detention provisions of the ADAA and 
Immact, as amended by the Miscellaneous and Technical Immigration and 
Naturalization Amendments of 1991, Pub. L. 102-232, 105 Stat. 1733 See 
8 U.S.C. section 1252 (a)(2) (1995) (mandating detention of aliens 
convicted of an aggravated felony except upon demonstration of lawful 
entry and lack of threat to community and flight risk); 8 U.S.C. 
section 1226(e) (1995) (mandating detention of aliens convicted of an 
aggravated felony who seek admission to the United States except when 
home country refuses to repatriate and alien demonstrates lack of 
threat to community). The legislative history of former section 
242(a)(2) and IIRIRA section 303 also reflects these concerns. See S. 
Rep. No. 48, 104th Cong., 1st Sess., 1995 WL 170285 (Apr. 7, 1995); 141 
Cong. Rec. S7803, 7823 (daily ed. June 7, 1995) (statement of Senator 
Abraham); see also Davis v. Weiss, 749 F. Supp. 47, 50 (D. Conn. 1990); 
Morrobel v. Thornburgh, 744 F. Supp. 725, 728 (E.D. Va. 1990) 
(Legislators reasonably deemed mandatory detention necessary because 
aggravated felons ``are likely to abscond before the completion of the 
deportation proceedings.'').
    These concerns motivated some of the basic procedural reforms 
embodied in IIRIRA. See, e.g., INA section 236(a)(2) (raising minimum 
bond during proceedings from $500 to $1,500); 236(c) (mandating 
detention of criminals during proceedings); section 236(e) (barring 
judicial review of discretionary custody determinations); 241(a) 
(requiring detention of aliens during 90-day ``removal period'' after 
final order). Congress has specifically addressed the detention of 
removable criminal aliens by greatly increasing Service detention 
resources over several years, and by expressing in IIRIRA a clear 
intention that aliens removable from the United States on the basis of 
a crime be detained, except in very limited circumstances, see INA 
section 236(c)(1), (2) (permanent provisions mandating detention during 
proceedings of most aliens removable on criminal grounds); section 
241(a)(2) (``Under no circumstances during the removal period shall the 
Attorney General release an alien who has been found'' removable on 
criminal or terrorist grounds.). Discretion remains under the statute 
only by virtue of transitional rules enacted to ease the burden of 
mandatory detention on the Service's detention resources.
    Indeed, section 236(c) of IIRIRA would now bar the release during 
proceedings of most aliens removable on criminal grounds, were it not 
for the Service's notification to Congress invoking the TPCR. Having 
invoked the TPCR on the basis of insufficient detention resources, the 
Department remains responsible for exercising its temporary discretion 
in conformity with congressional intent. In the Department's judgment, 
a carefully crafted regime incorporating both case-by-case discretion 
and, where appropriate, clear, uniform rules for detention by category, 
best achieves that goal.
    The Department has retained the structure of the proposed rule, 
including its mandatory detention categories, despite the commenters' 
concern that the rule encroaches on the authority of immigration judges 
and lacks the flexibility of a universal case-by-case approach. The 
final rule preserves a wide area of discretion for Service and EOIR 
decision makers, but defines limited situations in which a criminal 
alien's conduct warrants a per se rule of detention. Case-by-case 
discretion remains overwhelmingly the general rule. Per se rules are 
drawn narrowly, and only where, in the carefully considered judgment of 
the Attorney General, the danger of an erroneous release is 
sufficiently grave, and the danger of unwarranted detention during 
proceedings sufficiently minimal, as to tip the balance in favor of 
such a rule. See Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970) 
(Agency appropriately exercises discretion where it ``determines 
certain conduct to be so inimical to the statutory scheme that all 
persons who have engaged in it shall be ineligible for favorable 
consideration, regardless of other factors that otherwise might tend in 
their favor.'').
    The Department disagrees with comments suggesting that the TPCR 
require case-by-case adjudication for all ``lawfully admitted'' 
criminal aliens. The TPCR, by their terms, grant discretion to the 
Attorney General to consider certain categories of criminal aliens for 
release. It does not specify that that discretion be exercised by 
adjudication rather than by rulemaking. ``It is a well-established 
principle of administrative law that an agency to whom Congress grants 
discretion may elect between rulemaking and ad hoc adjudication to 
carry out its mandate.'' Yang v. INS, 70 F.3d 932, 936 (9th Cir. 1996) 
(citing American Hosp. Assoc. v. NLRB, 499 U.S. 606, 611-13 (1991); 
NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974)). Agencies may 
resolve matters of general applicability through the promulgation of 
rules ``even if a statutory scheme requires individualized 
determination * * * unless Congress has expressed an intent to withhold 
that authority.'' American Hosp., 499 U.S. at 613; see also Fook Hong 
Mak, 435 F.2d at 731 (``(I)t is fallacious to reason that because 
Congress prevented the Attorney General from exercising any discretion 
in favor of those groups[] which Congress had found to have abused the 
privileges accorded them, it meant to require him to exercise it in 
favor of everyone else on a case-by-case basis even if experience 
should convince him

[[Page 27443]]

of the existence of another group with similar potentialities or 
actualities of abuse.'' (emphasis in original)).
    Reviewing courts have upheld the Department's rulemaking in this 
area in light of these principles of administrative law. For example, 
in Reno v. Flores, 507 U.S. 292 (1993), the Supreme Court upheld a rule 
categorically precluding the release of detained juveniles not able to 
have either a legal guardian or one of several listed relatives assume 
custody. The Court held the rule to be a permissible exercise of the 
Attorney General's discretion, because it rationally advanced a 
legitimate governmental objective. Id. at 306. Similarly, in Yang, the 
Ninth Circuit upheld a rule categorically denying asylum, as a matter 
of discretion, to aliens ``firmly resettled'' prior to arrival in the 
United States. In Fook Hong Mak, the Second Circuit upheld a regulation 
barring, again in the exercise of the Attorney General's discretion, 
any alien transiting the United States without a visa from adjusting 
status under section 245 of the Act. Cf. Anetekhai v. INS, 876 F.2d 
1218, 1223 (5th Cir. 1989) (Congress may require all aliens who marry 
citizens after the institution of deportation proceedings to reside 
outside United States for 2 years without opportunity to demonstrate 
bona fides of marriage.)
    ``There is not doubt that preventing danger to the community is a 
legitimate regulatory goal.'' United States v. Salerno, 481 U.S. 739, 
747 (1987). Preventing abscondment by removable criminal aliens, and 
doing so in a way that minimizes waste of the Service's scarce 
enforcement resources and promotes consistent application of the law, 
are also legitimate goals. This rule exercises a well-established 
rulemaking authority of the Attorney General, in an area of ``sovereign 
prerogative, largely within the control of the executive and the 
legislative, `` Landon v. Plasencia, 459 U.S. 21, 34 (1982).

General Rules Versus Ad Hoc Adjudication for Permanent Resident 
Aliens

    Several commenters emphasized the special status of permanent 
resident aliens. That status entails certain rights with regard to 
removal proceedings, see Landon v. Plasencia, supra, but does not 
prohibit Congress or the Attorney General from establishing categories 
of criminal or terrorist permanent resident aliens whose crimes or 
conduct evidence a danger to the community or a flight risk 
sufficiently serious to require detention.
    Nevertheless, the Department has long maintained, and continues to 
maintain, a policy of special care with regard to procedural 
protections for permanent resident aliens. This rulemaking does not 
depart from that tradition. Permanent resident aliens retain the full 
panoply of rights and privileges in removal proceedings. The final rule 
affords a full discretionary custody determination to nearly all 
permanent resident aliens during such proceedings, and makes exceptions 
only in the extreme circumstances specified in Sec. 236.1(c)(5).
    The circumstances covered by Sec. 236.1(c)(5) of the proposed rule 
uniformly present compelling indicia of flight risk and danger to the 
community. First, to be subject to the TPCR, an alien must have a 
serious criminal conviction constituting a basis for removal from the 
United States. (Indeed, not all crimes constituting grounds for removal 
trigger the TPCR.) Second, in order to be subject to mandatory 
detention, a permanent resident alien must either (1) have escaped or 
attempted to escape from a prison or other lawful government custody; 
(2) have fled at high speed from an immigration checkpoint; or (3) have 
been convicted of one of the crimes specified in 
Sec. 236.1(c)(5)(i)(A). The specified crimes include murder, rape, 
sexual abuse of a minor, trafficking in firearms, explosives, or 
destructive devices, certain other explosive materials offenses, 
kidnaping, extortion, child pornography, selling or buying of children, 
slavery, treason, sabotage, disclosing classified information, and 
revealing the identity of undercover agents.
    Further, to address the concerns raised by commenters concerning 
procedural protections for permanent residents, the Department has also 
modified the final rule in three ways as it applies to permanent 
residents. First, the final rule requires that an alien, including one 
admitted as a nonimmigrant, receive a sentence (or sentences in the 
aggregate) of at least 2 years, not including portions suspended, in 
order to trigger the requirements of Sec. 236.1(c)(5). Permanent 
residents with less than the required sentence of 2 years will be 
eligible for an individualized custody determination; other lawfully 
admitted aliens with less than the required sentence will be considered 
under Sec. 236.1(c)(4). Second, the final rule will exempt from 
Sec. 236.1(c)(5) permanent residents who have remained free of 
convictions, immigration violations, and the like for an uninterrupted 
period of 15 years prior to the institution of proceedings (not 
including any periods of incarceration or detention).
    Finally, the final rule has been revised to provide an 
individualized custody determination to former permanent residents 
subject to the TPCR who have lost that status through a final order of 
deportation under former section 242 of the Act, and have been in 
Service custody pursuant to the final order for six months. The 
district director's decision may be appealed to the Board of 
Immigration Appeals under existing procedures. It is expected that 
releases in this category of final-order criminal cases will be rare, 
but the authority has been incorporated for use in compelling 
circumstances. Similar authority exists under section 241 of the Act 
for removal cases commenced on or after April 1, 1997. These three 
modifications will further ensure adequate procedural safeguards for 
the custody of permanent resident aliens (and aliens challenging the 
loss of such status through the prescribed jurisdictional channels).
    It is only within the extremely narrow range of offenses specified 
in the proposed rule, further narrowed by the aforementioned 
modifications, that the final rule requires detention of permanent 
resident aliens without discretionary release consideration. The 
constitutional concerns expressed by the commenters focus, therefore, 
on this very limited class of cases, and generally rest on the claim 
that due process prohibits Congress and the Attorney General from 
mandating the detention of any class of permanent resident aliens, 
regardless of the character of their criminal or terrorist offenses. 
The Department disagrees with this position.
    The Supreme Court has affirmed much broader administrative 
authority over detention of convicted criminals even in areas of law 
not informed by the ``plenary power'' doctrine. Individuals convicted 
of a crime have necessarily received all the process required by the 
criminal justice system; they have been convicted on the basis of 
either a voluntary guilty plea or a finding of guilt beyond a 
reasonable doubt, with opportunity for appeal and collateral habeas 
corpus challenge. In this context, the Supreme Court has upheld a 
general congressional delegation of sentencing authority to an 
independent agency within the Judicial Branch. Mistretta v. United 
States, 488 U.S. 361 (1989). If it is permissible for an agency to 
subject a U.S. citizen, upon conviction, to a mandatory sentence 
without individualized discretionary consideration, it would seem even 
more clearly permissible for the Attorney General to require custody of 
a narrow

[[Page 27444]]

class of convicted criminal aliens without individualized discretionary 
consideration during the ensuing proceedings to effect their removal. 
Cf. Jone v. United States, 463 U.S. 354, 364-65 (1983) (``The fact that 
a person has been found, beyond a reasonable doubt, to have committed a 
criminal act certainly indicates dangerousness.'') (Approving civil 
commitment, based on insanity plea in criminal proceeding, for 50 days 
without individualized hearing). Indeed, the power upheld in Mistretta 
is far broader than that asserted here, applying to U.S. citizens and 
criminal defendants, both of whom enjoy extensive constitutional rights 
and procedural protections beyond those afforded to criminal aliens in 
civil removal proceedings. See Mathews v. Diaz, 426 U.S. 67, 79-80 
(1976) (``In the exercise of its broad power over naturalization and 
immigration, Congress regularly makes rules that would be unacceptable 
if applied to citizens.''); INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-
40 (1984) (cataloguing constitutional procedural protections guaranteed 
to criminal defendants but not to aliens in deportation proceedings).
    The doctrine of plenary power bolsters this conclusion. `` `For 
reasons long recognized as valid, the responsibility for regulating the 
relationship between the United States and our alien visitors has been 
committed to the political branches of the Federal Government.' '' 
Flores, 507 U.S. at 305 (quoting Mathews v. Diaz, supra, at 81); accord 
United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982) (``The 
power to regulate immigration--an attribute of sovereignty essential to 
the preservation of any nation--has been entrusted by the Constitution 
to the political branches of the Federal Government.''). `` `(O)ver no 
conceivable subject is the legislative power of Congress more 
complete.' '' Flores, 426 U.S. at 305 (quoting Fiallo v. Bell, 430 U.S. 
787, 792, (1977); Oceanic Steam Navig. Co. v. Stranahan, 214 U.S. 320, 
339 (1909)).
    Accordingly, an immigration law is constitutional if it is based 
upon a ``facially legitimate and bona fide reason.'' Fiallo, 430 U.S. 
at 794-95; Kleindienst v. Mandel, 408 U.S. 753, 770 (1972); Garcia v. 
INS, 7 F.3d 1320, 1327 (7th Cir. 1993). ``Once a facially legitimate 
and bona fide reason is found, courts will neither look behind the 
exercise of discretion, nor test it by balancing its justification 
against the constitutional interest asserted by those challenging the 
statute.'' Campos v. INS, 961 F.2d 309, 316 (1st Cir. 1992) (citing 
Fiallo, 430 U.S. at 794-95). Courts have applied this deferential test 
to sustain the constitutionality of one of the TPCR's predecessor 
mandatory detention statutes as applied to permanent residents, Davis, 
749 F. Supp. at 50; Morrobel, 744 F. Supp. at 728, and the Supreme 
Court has applied a similar test in its most recent case addressing 
mandatory detention, Flores, 507 U.S. at 306 (upholding juvenile alien 
detention regulation as ``rationally advancing some legitimate 
governmental purpose'').
    Congress' plenary power over immigration extends to all non-
citizens, including permanent resident aliens. Aliens

[w]hen legally admitted * * * have come at the Nation's invitation, 
as visitors or permanent residents, to share with us the 
opportunities and satisfactions of our land * * * . So long, 
however, as aliens fail to obtain and maintain citizenship by 
naturalization, they remain subject to the plenary power of Congress 
to expel them under the sovereign right to determine what 
noncitizens shall be permitted to remain within our borders.

Carlson, 392 U.S. at 534 (upholding immigration detention of permanent 
resident alien); accord Shaughnessy v. United States ex rel. Mezei, 345 
U.S. 206 (1953) (affirming detention of returning permanent resident 
alien); Harisiades v. Shaughnessy, 342 U.S. 580, 587-88 (1952) (``That 
aliens remain vulnerable to expulsion after long residence is a 
practice that bristles with severities. But it is a weapon of defense 
and reprisal confirmed by international law as a power inherent in 
every sovereign state. Such is the traditional power of the Nation over 
the alien [,] and we leave the law on the subject as we find it.'').
    Carlson v. Landon, 342 U.S. 524 (1952)--``the leading case 
involving a test of the legality of detention under immigration laws, 
``Duldulao v. INS, 90 F.3d 396, 400 (9th Cir. 1996)--squarely addresses 
the detention of permanent resident aliens. The Supreme Court in 
Carlson upheld the Attorney General's detention of permanent residents 
under the Internal Security Act based solely on evidence of their 
Communist Party membership and support, without requiring any 
individualized inquiry into whether such aliens had ever engaged in 
specific acts of sabotage or subversion. 342 U.S. at 541. In essence, 
the Court allowed active membership in the Communist Party and espousal 
of its ideology to be used as proxies for an alien's dangerousness. The 
present rule, by contrast, relies on actual egregious crimes or conduct 
of convicted criminals as proxies for danger to the community and 
flight risk. Cf. Morrobel, 744 F. Supp. at 728 (``If there was no abuse 
of discretion in detaining alien communist in Carlson, it can hardly be 
improper for Congress, having determined that aliens convicted of 
aggravated felonies * * * are a danger to society, to direct the 
Attorney General to detain them pending deportation proceedings.''); 
Davis, 749 F. Supp. at 51 (analogizing mandatory detention of 
aggravated felons to detention upheld in Carlson).
    The Supreme Court has recently applied the principles of Carlson to 
a regulations mandating immigration detention of certain juveniles by 
category. Flores v. Reno, 507 U.S. 292 (1993). Flores recognizes the 
power of Congress and the Attorney General to establish detention rules 
that single out classes of aliens for differing treatment, without 
providing for an individualized determination as to whether each member 
of the class warrants such treatment. When Congress or the Attorney 
General does so, the only process due is a determination of whether the 
alien in fact belongs to the class at issue.
    Hence, the Court in Flores held that the Service could, without 
violating procedural or substantive due process, enforce a regulation 
generally barring the release of juvenile alien detainees, other than 
those able to have a legal guardian or certain specified close 
relatives take custody. The Court rejected arguments that the Service 
had impressibly employed a ``blanket presumption'' that other 
custodians were unsuitable, and that the Service must conduct ``fully 
individualized'' hearings on their suitability in each case. Id. at 
308, 313-14 & n.9. The Service was not required, the Supreme Court 
stated, to ``forswear use of reasonable presumptions and generic 
rules.'' Id. at 313. The Service needed only make such individual 
determinations as were necessary for accurate application of the 
regulation, such as ``is there reason to believe the alien 
deportable?'', ``is the alien under 18 years of age?'', and does the 
alien have an available adult relative or legal guardian?'' Id. at 313-
14.
    Like the regulation upheld in Flores, the final rule provides for 
an individualized hearing on whether an alien in custody actually falls 
within a category of aliens subject to mandatory detention. In 
determining or redetermining custody conditions, the district director 
or IJ necessarily asks such individualized questions as ``is this 
person an alien?'', ``is there reason to believe that this person was 
convicted of a crime covered by the TPCR?'', and ``is there reason to 
believe that this person falls within a category

[[Page 27445]]

barred from release under applicable law?'' If the district director or 
IJ resolves these individualized questions affirmatively, and thus 
ascertains that the alien belongs to a class of convicted criminals 
barred from release, ``(t)he particularization and individuation need 
go no further than this,'' id. at 314. Under Flores, the IJ or district 
director may validly enforce the regulatory policy of detaining those 
classes of aliens whose release has been determined by Congress or the 
Attorney General to present unacceptable risks. Cf. Davis, 749 F.Supp. 
at 52 (``The most effective procedures are those already built into 
(one of the TPCR's predecessors), namely those procedures which ensure 
that the alien is rightfully an `aggravated felon' under the (INA) and 
is properly subject to mandatory detention.'').
    Plenary power confers upon Congress the undisputed authority to 
curtail a criminal permanent resident alien's right to remain in the 
United States. See, e.g., Carlson v. Landon, 342 U.S. at 534 (``The 
basis for the deportation of presently undesirable aliens resident in 
the United States is not questioned and requires no reexamination.''). 
Congress has exercised this power in AEDPA and IIRIRA by barring 
permanent residents convicted of an aggravated felony from seeking 
discretionary relief from removal. The elimination of relief 
considerably increases flight risk, see, e.g., Bertrand v. Sava, 684 
F.2d 204, 217 n.16 (2d Cir. 1982) (``The fact that the petitioners are 
unlikely to succeed on their immigration applications * * * suggests 
that they pose * * * a risk (to abscond) if (released).''), and thus 
increases the need for detention of aliens barred in this manner from 
remaining in the United States.
    The congressional power to compel removal includes the power to 
effect removal by the necessary use of detention. ``An alien's freedom 
from detention is only a variation on the alien's claim of an interest 
in entering the country.'' Clark v. Smith, 967 F.2d 1329, 1332 (9th 
Cir. 1992); see also Carlson v. Landon, 342 U.S. at 538; Wong Wing, 163 
U.S. at 235; Doherty, 943 F.2d at 212 (``(F)rom the outset of his 
detention, Doherty has possessed, in effect, the key that unlocks his 
prison cell * * *. Because deportation was less attractive to him than 
his present course and because he had availed himself of the statutory 
mechanisms provided for aliens facing deportation, Doherty is subject 
to the countervailing measures Congress has enacted to ensure the 
protection of national interests.''). If Congress may bar specified 
criminal aliens from making discretionary applications to remain in the 
United States, it may also bar such criminals from making discretionary 
applications for release during removal proceedings, especially when 
detention is a necessary adjunct of the removal process, Carlson v. 
Landon, supra, and the elimination of relief itself creates 
overwhelming incentives to abscond, Bertrand v. Sava, supra.
    Despite the broad congressional and executive authority recognized 
and consistently reaffirmed over the past century by the Supreme Court, 
several district courts have held mandatory detention statutes 
unconstitutional under the Due Process Clause of the Fifth Amendment. 
See, e.g., St. John v. McElroy, 917 F. Supp. 243, 247 (S.D.N.Y. 1996). 
In the Department's view, these district courts have misapprehended the 
law of immigration detention, and have failed to defer to Congress and 
the Executive in matters of immigration as required by the Supreme 
Court's teachings.
    Some of the district court cases err in applying to immigration 
detention the standard for pre-trial criminal bail determinations 
articulated in United States v. Salerno, 481 U.S. 739, 747-51 (1987). 
See Kellman v. District Director, 750 F. Supp. 625, 627 (S.D.N.Y. 
1990); Leader v. Blackman, 744 F. Supp. 500, 507 (S.D.N.Y. 1990). The 
Supreme Court, however, has rejected the extension of Salerno in a 
post-conviction context. Hilton v. Braunskill, 481 U.S. 770, 779 (1987) 
(``[A] successful (state) habeas petitioner is in a considerably less 
favorable position than a pretrial arrestee, such as the respondent in 
Salerno, to challenge his continued detention pending appeal. Unlike a 
pretrial arrestee, a state habeas petitioner has been adjudged guilty 
beyond a reasonable doubt * * *.''). Similarly, in Doherty, the Second 
Circuit determined that ``a different focus (from criminal bail 
standards) must govern the determination of constitutionality of pre-
deportation detention.'' Doherty, 943 F.2d at 210 (citing Dor. v. 
District Director, INS, 891 F.2d 997, 1003 (2d Cir. 1989)). In 
reviewing the constitutionality of an 8-year detention, Doherty 
inquired only into the presence of any bad faith or invidious purpose 
in the Service's decision-making process. 943 F.2d at 210-11.
    St. John and the other district court cases invalidating mandatory 
detention rules as applied to permanent residents generally decline to 
apply the ``facially legitimate, bona fied reason'' standard, and 
instead engage in a balancing of individual and governmental interests. 
The balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 
(1976), does not, however, apply in the context of immigration 
detention. The Ninth Circuit had applied the Mathews  test in this 
manner in Flores v. Meese, 942 F.2d 1352, 1364 (9th Cir. 1991). The 
Supreme Court reversed, and applied a different test, requiring only 
that the challenged regulation ``meet the (unexacting) standard of 
rationally advancing some legitimate governmental purpose.'' Flores, 
507 U.S. at 306.
    Even if a balancing of interests were permitted--under governing 
case law, it is not--the paramount interest of the United States in 
removing criminal aliens and protecting its citizens form crime would 
outweigh any liberty interest that an alien removable from the United 
States on criminal grounds could claim. ``[A]n alien's right to be at 
liberty during the course of deportation proceedings is circumscribed 
by considerations of the national interest,'' and is consequently 
``narrow.'' Doherty,  943 F.2d at 208, 209; see also Flores 507 U.S. at 
305 (``If we harbored any doubts as to the constitutionality of 
institutional custody over unaccompanied juveniles, they would surely 
be eliminated as to those juveniles * * * who are aliens.'').
    Moreover, because the TPCR apply in removal cases only during 
proceedings, and because the Board of Immigration Appeals expedites 
detained cases on its docket, the length of an alien's detention under 
this rule is necessarily finite. Criminal aliens with an enforceable 
final order of removal must be detained and removed within 90 days; if 
not removed within that period, such aliens become eligible for 
discretionary release consideration. See INA section 241(a). Criminal 
aliens ordered deported or removed whose home countries will not accept 
repatriation may be considered for release at any time in the 
discretion of the Service, and permanent residents who lose that status 
through a final order of deportation may generally be considered for 
release after six months. These provisions eliminate the possibility of 
indefinite detention without discretionary review, and thus avoid 
violation of any protected liberty interest.
    In contrast to the ``narrow'' liberty interest of aliens removable 
on criminal grounds, ``[t]he government's interest in efficient 
administration of the immigration laws at the border * * * is weighty. 
Further, it must weigh heavily in the balance that control over matters 
of immigration is a sovereign prerogative, largely within the control 
of the executive and the legislature.'' Landon v. Plasencia, 459 U.S. 
21, 34

[[Page 27446]]

(1982). The Government's interest in maintaining the procedures 
embodied in the final rule is also ``weighty.'' The detention 
requirements for permanent residents single out aliens with egregious 
indicia of flight risk and danger to the community. The risk of 
recidivism and flight upon release is unquestionably great for these 
aliens; the risk of erroneous detention is correspondingly low. The 
provisions of the final rule reflect a legislative and executive 
judgment that, for the limited classes of criminal permanent resident 
aliens specified in the rule, discretionary release poses unacceptable 
risks.
    Individualized consideration of discretionary release for these 
groups would also impose considerable administrative burdens on the 
Government. In many instances, bond hearings become an arena of 
protracted and costly collateral litigation in their own right, beyond 
and apart from the extensive administrative processes for determining 
removability, and the criminal justice process. Although the primary 
purposes of the final rule are to protect the public and to ensure the 
departure of aliens removable on criminal grounds, administrative costs 
are a legitimate consideration in determining the best means to achieve 
these objectives. Even under the balancing analysis prohibited by 
Flores, therefore, these governmental interests would easily outweigh 
the ``narrow'' interest of an alien removable on criminal grounds in 
making applications to remain at large during proceedings to effect 
removal.
    The elemental error of Kellman, St. John, and the cases that follow 
them lies in their rejection of the Supreme Court's constitutional 
deference to Congress and the Executive in matters of immigration. The 
Kellman court acknowledges a ``significant degree'' of deference owed 
to Congress' substantive decisions regarding deportability, but asserts 
that ``the same deference is not mandated when examining the way in 
which that deportation is accomplished.''Kellman, 750 F. Supp. at 627. 
That assertion finds neither support nor solicitude in the 
jurisprudence of the Supreme Court. See, e.g., Flores, supra; Carlson 
v. Landon, supra. The respondents in Flores attempted this sort of 
distinction, urging the Supreme Court to require individualized 
discretionary custody determinations, despite the plenary power 
doctrine, as a matter of ``procedural due process.'' 507 U.S. at 308. 
The Court's response was unequivocal: ``This is just the `substantive 
due process' argument recast in `procedural due process' terms, and we 
reject it for the same reasons.'' Id.
    In the Department's view, the final rule takes the least 
restrictive approach to the detention of permanent residents consistent 
with the dictates of public safety and the important public policy of 
removing aliens who have committed serious crimes in this country. The 
Department is confident that the final rule provides adequate 
procedural protections for the custody of permanent resident aliens, 
and is aware of no other means of ensuring the requisite level of 
protection for the public. This rule draws upon the Department's 
experience over time in administering the immigration laws, 
incorporates its careful consideration of the individual and public 
interests at stake, and reflects its understanding of the will of 
Congress. In addressing these concerns, the rule provides needed reform 
of current procedures for the detention of aliens, including permanent 
resident aliens, who have become subject to removal as a result of 
crimes committed in this country.

The Meaning of ``Lawfully Admitted''

    For aliens in removal proceedings, the proposed rule construed the 
TPCR's term ``lawfully admitted'' by reference to the definition of 
``admitted'' in section 101(a)(13) of the Act. Accordingly, the 
proposed rule treated returning permanent resident ``applicants for 
admission'' as not ``lawfully admitted'' under the TPCR, and hence not 
eligible to be considered for release. Several commenters urged that 
the Department reconsider this interpretation to recognize an exception 
for permanent residents. Permanent residents, even those returning from 
abroad, remain ``lawfully admitted for permanent residence'' until 
termination of that status by a final administrative order. 8 CFR 
1.1(p). One commenter argued, therefore, as follows:

New INA Sec. 101(a)(13) provides that under certain limited 
circumstances a lawful permanent resident can be deemed to be 
``seeking admission into the United States.'' But this individual 
nevertheless remains a lawful permanent resident who is ``lawfully 
admitted'' for purposes of discretionary release from detention 
under the TPCR. In short, the phrase ``lawfully admitted'' does not 
necessarily mean ``is not presently seeking admission.'' Indeed, the 
language of Sec. 101(a)(13)--the very provision the INS relies on to 
justify its new interpretation (in the proposed rule)--keeps these 
concepts distinct.

The Department has carefully considered this and other similar 
comments, and will revise its interpretation in the final rule much 
along the lines recommended by the commenters.
    The final rule will consider an ``arriving alien'' in removal 
proceedings to be ``lawfully admitted'' for purposes of the TPCR if 
(and only if) the alien remains in status as a permanent resident, 
conditional permanent resident, or temporary resident. Accordingly, 
such aliens may be considered for parole in the discretion of the 
Service.
    The TPCR's term ``lawfully admitted'' will apply consistently in 
deportation and removal proceedings. In general, an alien who remains 
in status as a permanent resident, conditional permanent resident, or 
temporary resident will be considered ``lawfully admitted'' for 
purposes of the TPCR. Other aliens will be considered ``lawfully 
admitted'' only if they last entered lawfully (and are not currently 
applicants for admission).
    This interpretation of the term ``lawfully admitted'' is not 
intended to extend beyond the limited context of the TPCR. Moreover, 
under this final rule, a ``lawfully admitted'' alien will in many cases 
remain an ``applicant for admission.'' For example, as the Board 
recently held in Matter of Collado, Int. Dec. 3333 (BIA 1997), an 
arriving permanent resident alien who has committed an offense 
described in section 212(a)(2) of the Act remains an ``applicant for 
admission'' unless previously granted relief under sections 212(h) or 
240A(a) of the Act. The same will be true of an arriving permanent 
resident alien who falls within the other exceptions specified in 
section 101(a)(13)(C) (i)-(vi) of the Act. Although ``lawfully 
admitted'' for purposes of the TPCR during proceedings, such an alien 
remains an ``applicant for admission'' and an ``arriving alien,'' 
charged under section 212 of the Act, and subject solely to the parole 
authority of the Service.

Bond Jurisdiction of Immigration Judges

    One commenter asserted that the TPCR require the Attorney General 
to grant immigration judges bond authority over arriving aliens in 
removal proceedings and over aliens in exclusion proceedings. As 
explained in the notice of proposed rulemaking, the TPCR do not, in the 
Department's view, apply in exclusion proceedings, because they replace 
detention provisions applicable in removal and deportation proceedings, 
but do not replace the analogous provision applicable in exclusion 
proceedings. As regards arriving aliens in removal proceedings, the 
TPCR simply confer discretion upon

[[Page 27447]]

the Attorney General, leaving it to the Department to determine which 
subordinate officials will exercise custody authority. The Department 
has determined that parole authority will remain exclusively with the 
Service, as in the past. See generally Shaughnessy v. United States ex 
rel. Mezei, 345 U.S. 206 (1953) (affirming Service's decision to detain 
returning permanent resident alien); Marcello v. Bonds, 349 U.S. 302 
(1955) (rejecting claim that custody decision by Service officer 
violates Due Process where Service initiates and prosecutes 
proceeding).

Automatic Stay of Certain Criminal Custody Redeterminations To 
Preserve Status Quo for Appeal

    The proposed rule included a provision allowing the Service to 
request an emergency stay of an immigration judge's order redetermining 
custody conditions when the Service appeals the custody decision to the 
Board of Immigration Appeals. The rule also provided for an automatic 
stay of the immigration judge's custody redetermination where the alien 
is subject to the TPCR, section 440(c) of AEDPA, or section 236(c) of 
the Act, and the district director has set a bond of $10,000 or more 
(including outright denial of bond). Both of these provisions were 
included as permanent revisions, without regard to the expiration of 
the TPCR.
    Several commenters objected to the automatic stay provision, 
arguing that it encroaches on the authority of immigration judges, 
incorporates a criterion (initial bond amount) not adequately 
indicative of bail risk, and encourages district directors to set high 
bonds to fortify their custody decisions against reversal. The 
Department has carefully considered these comments, and will retain the 
automatic stay provision in the final rule without modification.
    Even accepting that initial bond amounts are an imperfect measure 
of bail risk, the automatic stay does not trigger in all cases meeting 
the $10,000 threshold. Rather, the $10,000 threshold and the 
requirement of a serious criminal offense provide the basis for a 
considered determination by the Service to seek an automatic stay in 
aid of a custody appeal. Custody appeals are themselves unusual, 
undertaken only in compelling cases, and subject to review by 
responsible senior officials within the Service. It is expected that 
such appeals will remain exceptional, and that Service district 
directors will continue to set custody conditions according to their 
best assessment of the bail risk presented in each case.
    The interests served by the automatic stay are considerable, even 
if the provision only occasionally comes into play. A custody decision 
that allows for immediate release is effectively final if, as the 
Service appeal would necessarily assert, the alien turns out to be a 
serious flight risk or a danger to the community. In such a case, the 
appeal provides little benefit to the agencies exerting efforts to 
effect removal, and less still to the community receiving the dangerous 
or absconding alien criminal back into its midst. The automatic stay 
provides a safeguard to the public, preserving the status quo briefly 
while the Service seeks expedited appellate review of the immigration 
judge's custody decision. The Board of Immigration Appeals retains full 
authority to accept or reject the Service's contentions on appeal.

Treatment of Criminal Aliens Not Eligible for Relief from Removal

    Several commenters objected to the provision in 
Sec. 236.1(c)(5)(iv) of the proposed rule requiring detention of 
criminal aliens under the TPCR who do not wish to pursue relief from 
removal, or who lack eligibility for such relief. The provision 
reflects the consideration that such an alien has little incentive to 
appear for proceedings, and hence almost always poses a serious bail 
risk. Nevertheless, the Department has reconsidered the inclusion of 
this provision in Sec. 236.1(c)(5), and will include it instead in 
Sec. 236.1(c)(4) of the final rule. Hence, permanent residents and 
aliens with old convictions and no subsequent indicia of bail risk will 
be eligible to be considered for release even where they lack or 
decline to pursue options for relief from removal. The Department would 
expect, however, only the most sparing use of this discretionary 
authority.
    Two commenters objected that bond proceedings during the early 
stages of the removal process provide a poor forum to assess 
eligibility for relief. The Department understands this concern, and 
does not anticipate a conclusive showing of eligibility by the alien at 
this stage of proceedings. Rather, the rule reflects the practical 
reality that occasions do arise when plainly no relief exists or the 
alien does not wish to pursue relief. In those situations, 
discretionary release of a criminal alien is generally inappropriate.

Meaning of ``when the alien is released''

    One commenter asserted that the TPCR apply only to criminal aliens 
released directly from incarceration into Service custody. The 
Department has considered this comment, and rejects it for the reasons 
stated by the Board of Immigration Appeals in Matter of Noble, Int. 
Dec. 3301 (BIA 1997).

Limited Appearances in Bond Proceedings

    One commenter requested that the final rule incorporate new 
provisions authorizing limited attorney appearances in bond 
proceedings, i.e., without obligation to represent the alien in removal 
proceedings. The subject matter of this comment concerns the terms of 
attorney representation and exceeds the substantive scope of this 
rulemaking. The Department remains open, however, to working with 
interested individuals and organizations to refine and improve its 
regulations in this and other areas within its authority.

Technical and Conforming Amendments

    The final rule corrects 8 CFR 3.6(a) to eliminate an outdated 
internal cross-reference, and corrects Sec. 3.6(a) and Sec. 236.1(d)(4) 
to conform with the final rule's provisions for stays of custody 
redeterminations by immigration judges. The final rule also clarifies 
the proposed Sec. 236.1(c)(4) by changing the placement of language 
excepting permanent resident aliens from the detention requirements of 
that paragraph.

Effect on Detention Resources

    The Department has taken into consideration the effect of the final 
rule on Service detention resources, and expects a management impact.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities because it affects 
individual aliens, not small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small

[[Page 27448]]

Business Regulatory Enforcement Act of 1996. This rule will not result 
in an annual effect on the economy of $100 million or more; a major 
increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget for review.

Executive Order 12612

    The regulation adopted herein will not have substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Immigration, Organization 
and functions (Government agencies).

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for part 3 is revised to read as follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1226, 1362; 28 U.S.C. 
509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953 
Comp., p. 1002; sec. 303(b)(3) of Pub. L. 104-208, Div. C.


Sec. 3.6  [Amended]

    2. In Sec. 3.6, paragraph (a) is amended by revising the reference 
to ``242.2(d) of this chapter'' to read ``236.1 of this chapter, 
Sec. 3.19(i),''.
    3. In Sec. 3.19, paragraph (h) and (i) are added to read as 
follows:


Sec. 3.19  Custody/bond.

* * * * *
    (h)(1)(i) While the Transition Period Custody Rules (TPCR) set 
forth in section 303(b)(3) of Div. C of Pub. L. 104-208 remain in 
effect, an immigration judge may not redetermine conditions of custody 
imposed by the Service with respect to the following classes of aliens:
    (A) Aliens in exclusion proceedings;
    (B) Arriving aliens in removal proceedings, including persons 
paroled after arrival pursuant to section 212(d)(5) of the Act;
    (C) Aliens described in section 237(a)(4) of the Act;
    (D) Aliens subject to section 303(b)(3)(A) of Pub. L. 104-208 who 
are not ``lawfully admitted'' (as defined in Sec. 236.1(c)(2) of this 
chapter); or
    (E) Aliens designated in Sec. 236.1(c) of this chapter as 
ineligible to be considered for release.
    (ii) Nothing in this paragraph shall be construed as prohibiting an 
alien from seeking a redetermination of custody conditions by the 
Service in accordance with part 235 or 236 of this chapter. In 
addition, with respect to paragraphs (h)(1)(i)(C), (D), and (E) of this 
section, nothing in this paragraph shall be construed as prohibiting an 
alien from seeking a determination by an immigration judge that the 
alien is not properly included within any of those paragraphs.
    (2)(i) Upon expiration of the Transition Period Custody Rules set 
forth in section 303(b)(3) of Div. C. of Pub. L. 104-208, an 
immigration judge may not redetermine conditions of custody imposed by 
the Service with respect to the following classes of aliens:
    (A) Aliens in exclusion proceedings;
    (B) Arriving aliens in removal proceedings, including aliens 
paroled after arrival pursuant to section 212(d)(5) of the Act;
    (C) Aliens described in section 237(a)(4) of the Act;
    (D) Aliens in removal proceedings subject to section 236(c)(1) of 
the Act (as in effect after expiration of the Transition Period Custody 
Rules); and
    (E) Aliens in deportation proceedings subject to section 242(a)(2) 
of the Act (as in effect prior to April 1, 1997, and as amended by 
section 440(c) of Pub. L. 104-132).
    (ii) Nothing in this paragraph shall be construed as prohibiting an 
alien from seeking a redetermination of custody conditions by the 
Service in accordance with part 235 or 236 of this chapter. In 
addition, with respect to paragraphs (h)(2)(i)(C), (D), and (E) of this 
section, nothing in this paragraph shall be construed as prohibiting an 
alien from seeking a determination by an immigration judge that the 
alien is not properly included within any of those paragraphs.
    (3) Except as otherwise provided in paragraph (h)(1) of this 
section, an alien subject to section 303(b)(3)(A) of Div. C of Pub. L. 
104-208 may apply to the Immigration Court, in a manner consistent with 
paragraphs (c)(1) through (c)(3) of this section, for a redetermination 
of custody conditions set by the Service. Such an alien must first 
demonstrate, by clear and convincing evidence, that release would not 
pose a danger to other persons or to property. If an alien meets this 
burden, the alien must further demonstrate, by clear and convincing 
evidence, that the alien is likely to appear for any scheduled 
proceeding or interview.
    (4) Unremovable aliens. A determination of a district director (or 
other official designated by the Commissioner) regarding the exercise 
of authority under section 303(b)(3)(B)(ii) of Div. C. of Pub. L. 104-
208 (concerning release of aliens who cannot be removed because the 
designated country of removal will not accept their return) is final, 
and shall not be subject to redetermination by an immigration judge.
    (i) Stay of custody order pending Service appeal: (1) General 
emergency stay authority. The Board of Immigration Appeals (Board) has 
the authority to stay the order of an immigration judge redetermining 
the conditions of custody of an alien when the Service appeals the 
custody decision. The Service is entitled to seek an emergency stay for 
the Board in connection with such an appeal at any time.
    (2) Automatic stay in certain cases. If an alien is subject to 
section 242(a)(2) of the Act (as in effect prior to April 1, 1997, and 
as amended by section 440(c) of Pub. L. 104-132), section 303(b)(3)(A) 
of Div. C of Pub. L. 104-208, or section 236(c)(1) of the Act (as 
designated on April 1, 1997), and the district director has denied the 
alien's request for release or has set a bond of $10,000 or more, any 
order of the immigration judge authorizing release (on bond or 
otherwise) shall be stayed upon the Service's filing of a Notice of 
Service Intent to Appeal Custody Redetermination (Form EOIR-43) with 
the Immigration Court on the day the order is issued, and shall remain 
in

[[Page 27449]]

abeyance pending decision of the appeal by the Board of Immigration 
Appeals. The stay shall lapse upon failure of the Service to file a 
timely notice of appeal in accordance with Sec. 3.38.

PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE 
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

    3. The authority citation for part 236 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362; 
sec. 303(b) of Div. C of Pub. L. No. 104-208; 8 CFR part 2.

    4. Section 236.1 is amended by:
    a. Revising paragraphs (c)(1) and (d)(4);
    b. Redesignating paragraphs (c)(2) through (c)(5), as paragraphs 
(c)(8) through (c)(11) respectively and by revising newly redesignated 
paragraph (c)(11); and by
    (c) Adding new paragraphs (c)(2) through (c)(7), to read as 
follows:


Sec. 236.1  Apprehension, custody, and detention.

* * * * *
    (c) * * *
    (1) In general. (i) After the expiration of the Transition Period 
Custody Rules (TPCR) set forth in section 303(b)(3) of Div. C of Pub. 
L. 104-208, no alien described in section 236(c)(1) of the Act may be 
released from custody during removal proceedings except pursuant to 
section 236(c)(2) of the Act.
    (ii) Paragraph (c)(2) through (c)(8) of this section shall govern 
custody determinations for aliens subject to the TPCR while they remain 
in effect. For purposes of this section, an alien ``subject to the 
TPCR'' is an alien described in section 303(b)(3)(A) of Div. C of Pub. 
L. 104-208 who is in deportation proceedings, subject to a final order 
of deportation, or in removal proceedings. The TPCR do not apply to 
aliens in exclusion proceedings under former section 236 of the Act, 
aliens in expedited removal proceedings under section 235(b)(1) of the 
Act, or aliens subject to a final order of removal.
    (2) Aliens not lawfully admitted. Subject to paragraph (c)(6)(i) of 
this section, but notwithstanding any other provision within this 
section, an alien subject to the TPCR who is not lawfully admitted is 
not eligible to be considered for release from custody.
    (i) An alien who remains in status as an alien lawfully admitted 
for permanent residence, conditionally admitted for permanent 
residence, or lawfully admitted for temporary residence is ``lawfully 
admitted'' for purposes of this section.
    (ii) An alien in removal proceedings, in deportation proceedings, 
or subject to a final order of deportation, and not described in 
paragraph (c)(2)(i) of this section, is not ``lawfully admitted'' for 
purposes of this section unless the alien last entered the United 
States lawfully and is not presently an applicant for admission to the 
United States.
    (3) Criminal aliens eligible to be considered for release. Except 
as provided in this section, or otherwise provided by law, an alien 
subject to the TPCR may be considered for release from custody if 
lawfully admitted. Such an alien must first demonstrate, by clear and 
convincing evidence, that release would not pose a danger to the safety 
of other persons or of property. If an alien meets this burden, the 
alien must further demonstrate, by clear and convincing evidence, that 
the alien is likely to appear for any scheduled proceeding (including 
any appearance required by the Service or EOIR) in order to be 
considered for release in the exercise of discretion.
    (4) Criminal aliens ineligible to be considered for release except 
in certain special circumstances. An alien, other than an alien 
lawfully admitted for permanent residence, subject to section 
303(b)(3)(A) (ii) or (iii) of Div. C. of Pub. L. 104-208 is ineligible 
to be considered for release if the alien:
    (i) Is described in section 241(a)(2)(C) of the Act (as in effect 
prior to April 1, 1997), or has been convicted of a crime described in 
section 101(a)(43)(B), (E)(ii) or (F) of the Act (as in effect on April 
1, 1997);
    (ii) Has been convicted of a crime described in section 
101(a)(43)(G) of the Act (as in effect on April 1, 1997) or a crime or 
crimes involving moral turpitude related to property, and sentenced 
therefor (including in the aggregate) to at least 3 years' 
imprisonment;
    (iii) Has failed to appear for an immigration proceeding without 
reasonable cause or has been subject to a bench warrant or similar 
legal process (unless quashed, withdrawn, or cancelled as improvidently 
issued);
    (iv) Has been convicted of a crime described in section 
101(a)(43)(Q) or (T) of the Act (as in effect on April 1, 1997);
    (v) Has been convicted in a criminal proceeding of a violation of 
section 273, 274, 274C, 276, or 277 of the Act, or has admitted the 
factual elements of such a violation;
    (vi) Has overstayed a period granted for voluntary departure;
    (vii) Has failed to surrender or report for removal pursuant to an 
order of exclusion, deportation, or removal;
    (viii) Does not wish to pursue, or is statutorily ineligible for, 
any form of relief from exclusion, deportation, or removal under this 
chapter or the Act; or
    (ix) Is described in paragraphs (c)(5)(i)(A), (B), or (C) of this 
section but has not been sentenced, including in the aggregate but not 
including any portions suspended, to at least 2 years' imprisonment, 
unless the alien was lawfully admitted and has not, since the 
commencement of proceedings and within the 10 years prior thereto, been 
convicted of a crime, failed to comply with an order to surrender or a 
period of voluntary departure, or been subject to a bench warrant or 
similar legal process (unless quashed, withdrawn, or cancelled as 
improvidently issued). An alien eligible to be considered for release 
under this paragraph must meet the burdens described in paragraph 
(c)(3) of this section in order to be released from custody in the 
exercise of discretion.
    (5) Criminal aliens ineligible to be considered for release. (i) A 
criminal alien subject to section 303(b)(3)(A)(ii) or (iii) of Div. C 
of Pub. L. 104-208 is ineligible to be considered for release if the 
alien has been sentenced, including in the aggregate but not including 
any portions suspended, to at least 2 years' imprisonment, and the 
alien
    (A) Is described in section 237(a)(2)(D)(i) or (ii) of the Act (as 
in effect on April 1, 1997), or has been convicted of a crime described 
in section 101(a)(43)(A), (C), (E)(i), (H), (I), (K)(iii), or (L) of 
the Act (as in effect on April 1, 1997);
    (B) Is described in section 237(a)(2)(A)(iv) of the Act; or
    (C) Has escaped or attempted to escape from the lawful custody of a 
local, State, or Federal prison, agency, or officer within the United 
States.
    (ii) Notwithstanding paragraph (c)(5)(i) of this section, a 
permanent resident alien who has not, since the commencement of 
proceedings and within the 15 years prior thereto, been convicted of a 
crime, failed to comply with an order to surrender or a period of 
voluntary departure, or been subject to a bench warrant or similar 
legal process (unless quashed, withdrawn, or cancelled as improvidently 
issued), may be considered for release under paragraph (c)(3) of this 
section.
    (6) Unremovable aliens and certain long-term detainees. (i) If the 
district director determines that an alien subject to section 
303(b)(3)(A)(ii) or (iii) of Div. C of Pub. L. 104-208 cannot be 
removed from the United States because the designated country of 
removal or deportation will not accept the alien's

[[Page 27450]]

return, the district director may, in the exercise of discretion, 
consider release of the alien from custody upon such terms and 
conditions as the district director may prescribe, without regard to 
paragraphs (c)(2), (c)(4), and (c)(5) of this section.
    (ii) The district director may also, notwithstanding paragraph 
(c)(5) of this section, consider release from custody, upon such terms 
and conditions as the district director may prescribe, of any alien 
described in paragraph (c)(2)(ii) of this section who has been in the 
Service's custody for six months pursuant to a final order of 
deportation terminating the alien's status as a lawful permanent 
resident.
    (iii) The district director may release an alien from custody under 
this paragraph only in accordance with the standards set forth in 
paragraph (c)(3) of this section and any other applicable provisions of 
law.
    (iv) The district director's custody decision under this paragraph 
shall not be subject to redetermination by an immigration judge, but, 
in the case of a custody decision under paragraph (c)(6)(ii) of this 
section, may be appealed to the Board of Immigration Appeals pursuant 
to paragraph (d)(3)(iii) of this section.
    (7) Construction. A reference in this section to a provision in 
section 241 of the Act as in effect prior to April 1, 1997, shall be 
deemed to include a reference to the corresponding provision in section 
237 of the Act as in effect on April 1, 1997. A reference in this 
section to a ``crime'' shall be considered to include a reference to a 
conspiracy or attempt to commit such a crime. In calculating the 10-
year period specified in paragraph (c)(4) of this section and the 15-
year period specified in paragraph (c)(5) of this section, no period 
during which the alien was detained or incarcerated shall count toward 
the total. References in paragraph (c)(6)(i) of this section to the 
``district director'' shall be deemed to include a reference to any 
official designated by the Commissioner to exercise custody authority 
over aliens covered by that paragraph. Nothing in this part shall be 
construed as prohibiting an alien from seeking reconsideration of the 
Service's determination that the alien is within a category barred from 
release under this part.
* * * * *
    (11) An immigration judge may not exercise the authority provided 
in this section, and the review process described in paragraph (d) of 
this section shall not apply, with respect to any alien beyond the 
custody jurisdiction of the immigration judge as provided in 
Sec. 3.19(h) of this chapter.
    (d) * * *
    (4) Effect of filing an appeal. The filing of an appeal from a 
determination of an immigration judge or district director under this 
paragraph shall not operate to delay compliance with the order (except 
as provided in Sec. 3.19(i)), nor stay the administrative proceedings 
or removal.
* * * * *
    Dated: May 12, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-13178 Filed 5-18-98; 8:45 am]
BILLING CODE 4410-10-M