[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Proposed Rules]
[Pages 37461-37465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17563]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 241
[INS No. 1848-97]
RIN 1115-AE83
Early Release for Removal of Criminal Aliens in State Custody
Convicted of Nonviolent Offenses
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization
Service (INS) regulations relating to apprehension and removal of
aliens under section 241 of the Immigration and Nationality Act (Act).
This proposed rule establishes an administrative process whereby
criminal aliens in state custody convicted of nonviolent offenses may
be removed prior to completion of their sentence of imprisonment. This
proposed rule will implement the authority contemplated by Congress to
enhance the ability of the United States to remove criminal aliens.
DATES: Written comments must be submitted on or before September 10,
1999.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536, Attn: Public Comment Clerk. To ensure proper handling please
reference INS No. 1848-97 on your 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: Ronald W. Dodson, Senior Special
Agent, Office of Investigations, Immigration and Naturalization
Service, 425 I Street, NW., Room 1000, Washington, DC 20536, telephone
(202) 514-2998. This is not a toll-free number.
SUPPLEMENTARY INFORMATION:
Background
On April 24, 1996, President Clinton signed into law the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L.
104-132, 110 Stat. 1214. The AEDPA contained numerous provisions
dealing with criminal aliens, designed to ``enhance the ability of the
United States to deport criminal aliens.'' See Conference Report on S.
735 (H.R. Rept. No. 104-518, dated April 15,
[[Page 37462]]
1996), at page 119 (concernign AEDPA Sec. 441).
Section 438(a) of AEDPA added subsection 242(h)(2) to the Act,
authorizing, but not compelling, the Attorney General to remove certain
aliens convicted of nonviolent offenses prior to the completion of
their sentence of imprisonment.
On September 30, 1996, the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), Pub. L. 104-208, 110 Stat. 3009, became
law. The provisions formerly contained in section 242(h)(2) of the Act,
as amended by AEDPA, and subsequently further amended by IIRIRA, are
now found in section 241(a)(4)(B) of the Act. Both AEDPA and IIRIRA
contain separate provisions, now incorporated in the Act, which
distinguish between Federal and state prisoners. However, there are
some differences between AEDPA and IIRIRA pertaining to categories of
Federal and state inmates barred from early release. Section 305(a) of
IIRIRA both expands and contracts the classes of offenders eligible for
consideration for early removal under the Act as amended by AEDPA.
Under IIRIRA, aliens in the custody of the state convicted of offenses
defined in section 101(a)(43)(C) or (E) of the Act are ineligible for
early release. Under IIRIRA, alien smuggline is no longer a bar to
eligibility for state inmates.
The statutory provisions distinguish between Federal and state
inmates. Because of the clear distinctions between provisions and
procedures for Federal and state inmates, the two require distinct
regulatory separation. The Department of Justice is giving
consideration to various means for implementing the statute on the
Federal level. This proposed rule addresses state inmates only.
According to section 241(a)(4)(B)(ii), an alien may be removed from
state custody if the chief state official exercising authority with
respect to the incarceration of the alien makes a determination that
the offense is a nonviolent offense, and that removal is in the best
interest of the state. The chief state official must then submit a
written request for the alien's removal to the Attorney General.
Section 438(b) of the AEDPA amended section 276 of the Act, (8
U.S.C. 1326) to require incarceration for the remainder of their
sentence, without parole, of aliens who were released for early removal
pursuant to the provisions of section 438(a) of the AEDPA, and who
reenter the United States without the express permission of the
Attorney General.
Further, section 241(a)(4)(D) of the Act, as amended by IIRIRA,
provides that no cause or claim may be asserted under section 241
against any official of the United States or of any state to compel the
release, removal, or the consideration for release or removal of any
alien.
Procedurally, this proposed regulation provides that in order to
participate a state or its political subdivision must have enabling
legislation authorizing early release of prisoners. Participation in
the program will be contingent on a formal agreement between the state
and the Service in the form of a uniform memorandum of understanding.
The memorandum of understanding may be modified in writing by mutual
consent of the signatories and/or may be canceled by either party upon
30 days' written notice. Only criminal aliens approved by both the
state and the Service as suitable candidates will be released to the
Service for removal. In accordance with the Victim and Witness
Protection Act of 1982 (VWPA) and the Attorney General's Guidelines for
Victim and Witness Assistance, the state will make reasonable efforts
to notify victims of record regarding the early release of criminal
aliens for removal. The state will assist the Service by providing, to
the extent allowed under state law, access to and use of information
contained in the alien's correctional files to assist in the removal of
such criminal aliens. The date of the criminal alien's release will be
coordinated between the Service and the governmental entity
representing the state or its political subdivision. The criminal alien
will remain in the custody of the state until: a final order of removal
is issued, there are no impediments to obtaining travel documents for
the alien, and arrangements have been made to remove the alien. In
order to transfer custody of the criminal alien from the state to the
Service, the Service will notify the state when a final order has been
issued and removal arrangements have been made. At that time the
transfer will take place. If after the transfer of custody, the alien
cannot be removed promptly, the Service will return the alien to the
custody of the state. The state will enter relevant information
relating to such criminal aliens released and removed into its criminal
history records system, which must provide for rapid identification of
such aliens should they reenter or attempt to reenter the United States
or otherwise be encountered by law enforcement personnel. The Service
will also develop and maintain a permanent alien file detailing the
identity of each such criminal alien. The Service will ensure that
fingerprint dispositions are expeditiously forwarded to the Federal
Bureau of Investigation (FBI) for inclusion in the subject's criminal
history record and that the alien's name is forwarded to the National
Crime Information Center (NCIC). The state may submit names for
consideration for removal prior to completion of criminal sentences of
aliens who have committed nonviolent offenses as defined under state
law, except for offenses specifically excluded by Federal statute. The
state will advise such aliens that the release is conditional and the
alien must agree in writing that he/she has been informed that the
criminal sentence(s) has been suspended, not rescinded, and that such
suspended sentence(s) will remain in abeyance for the state to reimpose
should the alien must have admitted and conceded the charges and
factual allegations which form the basis of the removal action, and
must have waived all rights to appeal any order of removal and waived
the right to apply for relief from removal. The criminal alien must
remain outside the United States and agree to refrain from making any
attempt to reenter the United States for the time period statutorily
specified in 8 U.S.C. 1182 (10 years, 20 years, or at any time in the
case of an alien convicted of an aggravated felony), unless the
Attorney General has expressly consented to such alien's reentry. Any
unlawful return to the United States shall constitute a violation of
the conditions of the alien's release and shall result in such alien's
return to the custody of the state for the completion of the alien's
sentence and the alien shall be subject to Federal prosecution. The
state or the Service will notify the other of any encounter with such
alien. If, during the period of any remaining sentence, the criminal
alien applies to the Attorney General for readmission after removal
under this program, and the Service is inclined to grant the request,
the Service will notify the state of that request and provide an
opportunity for the state to note any objection.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this proposed regulation and, by approving it, certifies that
this rule will not have a significant economic impact on a substantial
number of small entities because of the following factors:
This proposed rule will not have a significant economic impact on
small
[[Page 37463]]
entities since it pertains to removal of criminal aliens incarcerated
in state institutions (or a political subdivision thereof). The removal
of these individuals from the United States will not adversely or
materially affect a sector of the economy, cause major increases in
costs or prices for consumers or have other adverse effects on the
economy in terms of productivity, competition, jobs, or the
environment, public health or safety or adversely affect small
government jurisdictions.
Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
proposed 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.
Unfunded Mandates Reform Act of 1995
This proposed 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. The alien's release
under the provisions of this section is conditional. Any violation of
the terms of release will result in a violation of that conditional
release, resulting in a return to state or local custody. State (or
political subdivision thereof) participation in this process is at the
discretion of the state or political subdivision thereof. This rule
does not impose an enforceable duty on state, local, or tribal
governments. Not only is the program voluntary, but the state or
political subdivision derives considerable benefit from participation
in the program. The state or subdivision is enabled to remove
nonviolent offenders from their penal facilities prior to expiration of
sentence. This saves the state or subdivision considerable resources.
Therefore, no actions were deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.
Paperwork Reduction Act of 1995
Section 241.17 of this proposed rule allows states or a political
subdivision thereof to enter into an agreement with the Service for
participation in an early release program for removal of nonviolent
alien offenders in state custody prior to the completion of the alien's
sentence to imprisonment. Some of the provisions in the agreement
contain information collection requirements that are subject to review
by the Office of Management and Budget (OMB) under the Paperwork
Reduction Act of 1995. Therefore, the agency solicits public comments
on the information collection requirement for 30 days in order to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Since participation on the part of state is voluntary and the
number of states or subdivisions electing to participate is unknown as
is an estimate of the number of eligible nonviolent alien offenders
states would recommend as candidates for early removal, the Service
does not have sufficient data to estimate of the number of hours that
would constitute the total annual reporting burden.
As required by section 3507(d) of the Paperwork Reduction Act of
1995, the Service has submitted a copy of this proposed rule to OMB for
its review of the information collection requirement. Other
organizations and individuals interested in submitting comments
regarding this burden estimate or any aspect of this information
collection requirement, including suggestions for reducing the burden
should direct them to: Office of Information and Regulatory Affairs
(OMB), 725 17th Street, NW, Washington, DC 20503, Attn: DOJ/INS Desk
Officer, Room 10235. The comments or suggestions should be submitted
within 30 days of publication of this rulemaking.
Executive Order 12866
This proposed 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. An assessment of the need for the
regulatory action, an explanation of how the action will meet that
need, an assessment of the potential costs and benefits of the
regulatory action and of any reasonable feasible alternatives, and any
bearing which the regulatory action has on state, local, and tribal
governments in the exercise of their governmental functions has been
submitted to the Office of Management and Budget under section
6(a)(3)(B)-(D).
Executive Order 12612
The regulation proposed herein will not have substantial direct
effect 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. As previously
stated under the Unfunded Mandates Reform Act of 1995, this proposed
rule will save considerable resources of participating states and
subdivisions. Therefore, in accordance with Executive Order 12612, it
is determined that this proposed rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988 Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
List of Subjects in 8 CFR Part 241
Administration practice and procedure, Aliens, Immigration.
Accordingly, part 241 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
1. The authority citation for part 241 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1223, 1227, 1251, 1253, 1255, and
1330; 8 CFR part 2.
2. Section 241.17 is added to read as follows:
[[Page 37464]]
Sec. 241.17 Removal of nonviolent offenders in state custody prior to
the completion of the alien's sentence of imprisonment pursuant to
section 241(a)(4)(B) of the Act.
(a) Authorization. (1) A state or its political subdivision must
have enabling legislation in order to enter into an agreement with the
Service for participation in an early release program. Participation in
the program will be contingent on a formal agreement bearing the
signatures of the Governor of the state or designee and the
Commissioner or designee. In the case of a political subdivision,
participation will be contingent on the signature of the leading
official of the political subdivision and the Commissioner or designee
following formal agreement between the state and the Service. An early
release program for inmates of a state or political subdivision will be
implemented through a Memorandum of Understanding (MOU) developed by
the Service. From the date of final publication in the Federal
Register, requests for consideration under this provision of the Act
should be referred to the chief state official exercising authority
with respect to the confinement of the alien. Any inquiries pending
with the Attorney General or the Service at that time will be referred
to the appropriate state authority.
(2) The uniform MOU will constitute the agreement between the
Service and a state or political subdivision thereof for the removal of
nonviolent alien offenders prior to the completion of the alien's
sentence to imprisonment. The MOU will govern the procedures and
responsibilities of the parties. Specific operational procedures for
implementing the MOU should be negotiated between the appropriate state
officials and Service District Offices. The MOU imposes no limitations
on the discretion of the Attorney General to exercise authority or to
decline to do so with regard to section 241(a)(4)(B) of the Act. The
MOU does not confer any rights on any third party.
(b) Agreement provisions. The MOU shall include the following
provisions:
(1) Only criminal aliens approved by both agencies as suitable
candidates will be released to the Service for removal. The Service
District Office will review the state's written submission. A query of
the National Crime Information Center (NCIC) will be performed to
determine if there are outstanding wants or warrants in other
jurisdictions. Notification will be provided to the Department of
Justice Office of International Affairs of those aliens being
considered for early release to provide that office with the
opportunity to note any objection. The Service will indicate by return
document which aliens the Service finds appropriate for the program.
The decision of the Service District Office as the Attorney General's
delegate is not reviewable.
(2) In accordance with the Victims and Witness Protection Act of
1982 (VWPA) and the Attorney General's Guidelines for Victim and
Witness Assistance, the state will make reasonable efforts to notify
victims of record at the time of request for consideration under this
section regarding the early release of the alien for removal and the
nature and intent of the removal of nonviolent alien offenders prior to
the completion of their sentence to imprisonment.
(3) The state will certify that there are no detainers or other
litigation involving the alien as a defendant or witness in any
criminal proceeding outstanding at the time of the request for
consideration for early release.
(4) The governmental entity representing the state or its political
subdivision will assist the Service and its agents by providing, to the
extent allowed under state law, access to and use of documents,
materials and information contained in the aliens' correctional files
for the purpose of assisting the Service in its efforts to remove such
criminal aliens from the United States.
(5) The date that criminal aliens are to be released to the Service
for removal will be coordinated between the Service and the
governmental entity representing the state or its political
subdivision. Any criminal alien determined eligible for removal
pursuant to section 241(a)(4)(B) of the Act will remain in the custody
of the governmental entity representing the state or its political
subdivision unit:
(i) A final order of removal is issued against such alien by an
Immigration Judge or through any other procedure authorized by law,
(ii) There are no impediments to obtaining travel documents, and
(iii) Arrangements have been made to remove the alien.
(6) In order to transfer custody of the criminal alien from the
state to the Service, the Service will notify the governmental entity
representing the state or its political subdivision when the final
order of removal is issued and the consular official has assured the
Service that a travel document will be immediately issued upon
presentation of the criminal alien. The Service will then maintain
custody of such alien in a secure environment until such time as the
Service effectuates the alien's removal from the United States. If,
after the Service has accepted custody of a criminal alien released by
the governmental entity representing the state or its political
subdivision for removal, the alien cannot be promptly removed from the
United States, the Service will return that alien to the custody of the
state. The state must accept such alien into its custody unless
prevented from doing so by order of a court of competent jurisdiction
or other lawful authority.
(7) The state will enter relevant information relating to criminal
aliens released and removed subject to the provisions of section
241(a)(4)(B) of the Act into its criminal history records system. Such
system must provide for the rapid identification of any alien who is
released and removed subject to the provisions of section 241(a)(4)(B)
of the Act should such alien reenter or attempt to reenter the United
States and/or otherwise be encountered by law enforcement personnel.
The Service will develop and maintain a permanent alien file detailing
the identity of each criminal alien subject to treatment under section
241(a)(4)(B) of the Act, including his or her fingerprints and
photograph, and executed warrant of removal, for the purpose of
allowing rapid identification of any alien released for purposes of
removal under section 241(a)(4)(B) of the Act, should such alien
reenter or attempt to reenter the United States.
(8) The Service will also ensure that fingerprint dispositions are
expeditiously forwarded to the Federal Bureau of Investigation for
inclusion in the subject's criminal history record and that the alien's
name is forwarded to the National Crime Information Center (NCIC).
(9) The state may submit names for consideration for removal prior
to completion of criminal sentences of aliens who have committed
nonviolent offenses as defined under state law, except for the
following offenses specifically excluded by section 241(a)(4)(B) of the
Act: illicit trafficking in firearms or destructive devices (as defined
in 18 U.S.C. 921), or in explosive materials (as defined in 18 U.S.C.
841(c)); an offense described in 18 U.S.C. 842(h) or (i) or 18 U.S.C.
844(d), (e), (f), (g), (h), or (i) (relating to explosive materials
offenses); 18 U.S.C. 922(g)(1), (2), (3), (4), (5), (j), (n), (o), (p),
or 18 U.S.C. 924(b) or (h) (relating to firearms offenses); or an
offense described in section 5861 of the Internal Revenue Code of 1986
(relating to firearms offenses).
(10) Any alien being considered for early release pursuant to
section 241(a)(4)(B) of the Act shall be advised
[[Page 37465]]
by the governmental entity representing the state or its political
subdivision that the release is conditional and the alien must agree in
writing that the following special conditions have been met:
(i) The criminal alien has been informed that any state action to
release the alien from incarceration pursuant to section 241(a)(4)(B)
of the Act will only suspend, not rescind, the alien's remaining
criminal sentence(s) and any related period(s) of incarceration, and
that such suspended sentence(s) will be tolled and remain in abeyance
to be reinstated should the alien breach any of the express conditions
of the executive release order.
(ii) The criminal alien has a final order of removal as required
under section 241(a)(4)(B) of the Act. Further, the alien must have
admitted and conceded the charges and factual allegations which form
the basis of the removal action, and must have waived all rights to
appeal any order of removal issued pursuant to authorized procedures.
The alien must have waived any right to pursue an appeal of the order
of removal, or to seek any relief therefrom, and must further waive any
possible challenge to removal under domestic or international law,
including but not limited to asylum, withholding of removal, and
protection from ``refoulement'' under the 1951 Convention and the 1967
Protocol Relating to the Status of Refugees or under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
(iii) The criminal alien has withdrawn any pending appeal of the
underlying criminal conviction and sentence, and waived his or her
right to pursue such appeal if the time for filing has not yet expired.
(iv) The criminal alien must cooperate fully with the Service in
connection with execution of any final order of removal, particularly
with respect to producing travel documents or other evidence of
nationality.
(v) The criminal alien must remain outside the United States and
agree to refrain from making any attempt to reenter the United States
for the period specified by section 212 (a)(9)(A)(ii) of the Act (8
U.S.C. 1182(a)(9)(A)(ii)), as amended, in that an alien who has been
ordered removed or departed while an order of removal was outstanding
is ineligible to seek admission within 10 years of the date of such
alien's departure or removal, or within 20 years of such date in the
case of a second or subsequent removal, or at any time in the case of
an alien convicted of an aggravated felony, unless the Attorney General
has expressly consented to such alien's reentry. Any unlawful return to
the United States shall constitute a violation of the alien's
conditions of release and shall result in such alien's return to the
custody of the state (or political subdivision thereof) for the
completion of the alien's sentence and the alien will be subject to
Federal prosecution.
(ii) A criminal alien granted early release for removal, who is
removed but subsequently illegally returns to the United States may be
subject to Federal prosecution. Either party to this agreement shall
notify the other of any encounter with such alien. The Attorney General
will determine whether the alien should be prosecuted for an unlawful
reentry pursuant to section 276 of the Act. After the Attorney General
determines whether to prosecute the alien for reentry after removal and
any Federal action or period of Federal incarceration has concluded,
the state will assume custody of such alien and bear all costs
associated with the transportation and escort back to the state or
locality. The state (or political subdivision thereof) will hold the
alien in state custody to serve the balance of the sentence of
imprisonment in an appropriate state facility at state expense.
(12) If, during the period of any remaining sentence, the criminal
alien applies to the Attorney General for readmission after removal
under this program, and the Service is inclined to grant the request,
the Service will notify the state of that request and provide an
opportunity for the state to note any objection by the victim or other
state authority.
(13) The MOU may be modified in writing at any time by mutual
consent of the signatories and/or may be canceled by either party upon
30 days written notice. Pursuant to section 241(a)(4)(D) of the Act, as
amended by IIRIRA, no cause or claim may be asserted under section 241
against any official of the United States or of any state to compel the
release, removal, or consideration for release or removal of any alien
and all MOU's will so state.
Dated: July 2, 1999.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 99-17563 Filed 7-9-99; 8:45 am]
BILLING CODE 4410-10-M