[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