[Federal Register Volume 65, Number 127 (Friday, June 30, 2000)]
[Proposed Rules]
[Pages 40540-40548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16560]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / 
Proposed Rules  

[[Page 40540]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 212, 236, and 241

[INS No. 2029-00; AG Order No. 2310-2000]
RIN 1115-AF82


Detention of Aliens Ordered Removed

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule would amend the Immigration and Naturalization 
Service (Service) regulations by providing a uniform review process 
governing the detention of criminal, inadmissible, and other aliens, 
excluding Mariel Cubans, who have received a final administrative 
removal order but whose departure has not been effected within the 90-
day removal period. Such a process is necessary to ensure periodic 
custody reviews for post-order cases and consistency in decision-
making. Since the Service is developing a specialized, ongoing 
administrative review process for these custody determinations, this 
rule would eliminate the appellate role of the Board of Immigration 
Appeals in post-final order custody determinations. This rule also 
would amend the Service's regulations to reflect the authority of the 
Commissioner, and through her, other designated Service officials, to 
release certain aliens from Service custody, issue orders of 
supervision, and grant stays of removal.

DATES: Written comments must be submitted on or before July 31, 2000.

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. To ensure proper handling, please reference INS No. 2029-00 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: Joan S. Lieberman, Office of the 
General Counsel, Immigration and Naturalization Service, 425 I Street 
NW, Room 6100, Washington, DC 20536, telephone (202) 514-2895 (not a 
toll-free call).

SUPPLEMENTARY INFORMATION:

Why is the Service Issuing This Proposed Rule?

    Congress has progressively acted to restrict the release into the 
community of aliens convicted of certain crimes, beginning with 
amendments affecting aggravated felons in the Anti-Drug Abuse Act of 
1988, Pub. L. 100-690, and the Immigration Act of 1990, Public Law 101-
649. Congress extended these restrictions to other categories of crimes 
in the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 
104-132 and the Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996, Pub. L. 104-208. Under prior law, criminal aliens who were 
referred to as deportable under former section 242 of the Immigration 
and Nationality Act (Act) generally could only be detained for a period 
of 6 months pending removal after the issuance of a final deportation 
order. This restriction has been removed. Pursuant to section 241(a)(6) 
of the Act, 8 U.S.C. 1231(a)(6), certain classes of aliens may be 
detained in the discretion of the Attorney General beyond the 90-day 
removal period, including aliens that the Attorney General determines 
constitute a risk to the community or are unlikely to comply with the 
order of removal.
    As a result of this change in the law and other factors, there has 
been a considerable increase in the number of aliens in immigration 
custody who have a final order of removal but who the Service is unable 
to remove during the removal period set out in section 241(a)(1) of the 
Act, 8 U.S.C. 1231(a)(1).
    Two courts of appeals have upheld the Attorney General's authority 
to continue detention after the removal period. See Duy Dac Ho v. 
Greene, 204 F.3d 1045 (10th Cir. 2000); Zadvydas v. Underdown, 185 F.3d 
279 (5th Cir. 1999). The Ninth Circuit recently held, in Ma v. Reno,--
F.3d --, 2000 WL 358445 (9th Cir. Apr. 10, 2000), that such detention 
may not be extended more than a reasonable time beyond the statutory 
removal period, but the Department of Justice is seeking further review 
of that decision. This rule will provide procedures to govern detention 
of aliens with final orders, to the extent that they continue to be 
detained after the expiration of the removal period.
    The Department of Justice has determined that a separate custody 
review process is appropriate for aliens who are detained beyond the 
90-day removal period. This action permits a comprehensive and fair 
review of post-order cases by establishing multiple levels of review to 
determine whether certain detained aliens may be released from custody, 
and sets forth the procedures governing such release or continued 
detention. As was the case with the implementation of the Mariel Cuban 
Review Plan, this review process is intended to balance the need to 
protect the American public from potentially dangerous aliens who 
remain in the United States contrary to law with the humanitarian 
problems created by another country's unjustified delay or refusal to 
accept repatriation of its nationals.
    Currently, 8 CFR 241.4 provides the general procedures governing 
the detention of criminal, inadmissible, and other aliens who have 
received a final administrative removal order but whose departure has 
not been effected within the 90-day removal period specified in section 
241(a)(1) of the Act, 8 U.S.C. 1231(a)(1). In 1999, pending 
promulgation of more specific procedures by regulation and to institute 
a more uniform process nationwide, the Service issued a series of 
memoranda to provide specific guidance to field offices concerning 
implementation of interim procedures governing post-order custody 
cases. Detention Procedures for Aliens Whose Immediate Repatriation is 
Not Possible or Practicable, February 3, 1999; Supplemental Detention 
Procedures, April 30, 1999; Interim Changes and Instructions for 
Conduct of Post-Order Custody Reviews, August 6, 1999 (collectively 
``the Pearson memoranda'').
    This rule establishes permanent procedures for post-order custody 
reviews. The rule will assist the decision maker in determining whether 
an alien is an appropriate candidate for release from custody after the 
expiration of the removal period. When the review procedures are 
adopted in final form, they will supersede the Pearson

[[Page 40541]]

memoranda. The new procedures are modeled after those governing the 
Mariel Cubans at 8 CFR 212.12 and consist of a file review with the 
opportunity for a panel interview and recommendation, and a final 
decision by a separate Service Headquarters unit, the Headquarters 
Post-Order Detention Unit (HQPDU). Although Mariel Cuban procedures 
will continue to be governed separately, the review process is similar 
for both groups of aliens.

Who is Covered Under This Proposed Rule?

    This proposed rule would establish a permanent review procedure 
that would apply to noncriminal aliens as well as inadmissible and 
criminal aliens whose release after expiration of the 90-day removal 
period presents a significant risk of noncompliance with the order of 
removal or a danger to public safety. The Attorney General is 
authorized to detain these aliens beyond the removal period, as 
necessary, consistent with section 241(a)(6) of the Act, 8 U.S.C. 
1231(a)(6), until they can be removed from the United States.
    This permanent review procedure will govern all post-order custody 
reviews with the exception of Mariel Cubans whose parole under section 
212(d)(5) of the Act, 8 U.S.C. 1182(d)(5), is governed by the 
provisions of 8 CFR 212.12. Mariel Cuban custody reviews will continue 
to be conducted pursuant to those provisions.

What Are the Proposed Procedures for Post-Order Custody Reviews?

    Under the proposed rule, the district director maintains the 
responsibility for the initial custody review when the alien's 
immediate repatriation is proper but not practicable at the expiration 
of the removal period. For the initial post-order custody review at the 
expiration of the removal period (the 90-day custody review), the 
district director will conduct a file review. In most cases, it will be 
unnecessary for the district director to undertake a personal interview 
since the alien's immigration proceedings have recently concluded, and 
the information of record is recent. The district director has the 
discretion to conduct a personal or telephonic interview if he or she 
finds that it will assist him or her in making a custody determination. 
Further, the alien will be provided with the opportunity to present any 
relevant written information the alien desires in support of his or her 
release into the community.
    After the 90-day custody review, the district director will notify 
the alien in writing that he or she is to be released from custody, or 
that the alien will be continued in detention pending repatriation or 
further review of his or her custody status.
    Where the district director has notified the alien that he or she 
will continue to be detained pending repatriation, the district 
director's authority to reconsider an alien's custody status may be 
extended for an additional period of up to 3 months after expiration of 
the removal period. The additional 3-month period will allow the 
district director to continue efforts to obtain the necessary travel 
documents to effect the alien's removal before the detention authority 
is transferred to Service Headquarters.
    During the additional 3-month period, the alien may submit a 
written request to the district director for further review of his or 
her custody status. The district director shall consider information 
that the alien submits in support of his or her release from detention 
demonstrating a material change in circumstances. The district director 
will provide a written response as appropriate to the alien's 
submission of such new information and may, in the exercise of 
discretion, conduct any further review of the alien's custody status 
that he or she deems appropriate. The district director retains the 
authority to release the alien during this period as well.
    If the alien has not been repatriated or released, detention 
authority transfers to the newly designated Service component, the 
HQPDU, under the authority of the Executive Associate Commissioner, 
Field Operations (Executive Associate Commissioner), either at the end 
of the 90-day removal period or at the expiration of the 3-month 
extension period. Under either circumstance, the HQPDU will ordinarily 
commence a custody review within 30 days of the transfer of detention 
authority or as soon as possible thereafter should unforeseen or 
emergent circumstances arise. The alien will receive written notice of 
the custody review approximately 30 days prior to the scheduled review. 
The HQPDU will conduct all further custody determinations as long as 
the alien remains in custody pending removal. Subsequent custody 
reviews will be conducted at annual intervals (or more frequently in 
the sole discretion of the HQPDU).
    When the detention authority transfers to the HQPDU, that unit will 
conduct a file review for each alien previously ordered detained by the 
district director. If the file review does not result in a release 
decision, the alien will be given the opportunity for a panel 
interview. The two-member panel will be chosen from professional staff 
of the Service. The interview will be conducted in person and a 
translator will be provided if the Service official determines that a 
translator's assistance is appropriate. As under the Mariel Cuban 
Review Plan, the interviewing panel will make a custody recommendation 
to the HQPDU. Upon receipt of the panel's recommendation, the HQPDU 
shall determine whether to detain or grant release consistent with the 
delegation of discretionary authority. The decision of the HQPDU will 
be final and will not be subject to further administrative review.
    The HQPDU is not bound by the panel's recommendation. The HQPDU 
retains full statutory authority for custody determinations under 
sections 241(a)(6), 8 U.S.C. 1231(a)(6), and (for inadmissible aliens) 
212(d)(5) of the Act, 8 U.S.C. 1182(d)(5). The panel's recommendation 
is designed to serve as an important guide to the exercise of 
discretion for the HQPDU, but the decision maker must be free to assess 
all of the circumstances in arriving at a final custody determination. 
The decision maker must also take into consideration changes in foreign 
and domestic affairs, the availability of fiscal resources, public 
policy and humanitarian concerns, and other factors that could weigh 
for or against the decision in an individual case.
    The subsequent HQPDU periodic review, to be conducted within one 
year of a refusal to grant release under these procedures or as soon as 
practicable thereafter in case of unforeseen circumstances or an 
emergent situation, will address whether the alien can be released into 
the community if the alien has not been repatriated since the last 
review. The HQPDU may conduct a custody review at more frequent 
intervals at its sole discretion and consider written submissions 
demonstrating any material change in circumstances that supports the 
alien's release during the interval between reviews. Material change 
does not include mere disagreement with the decision denying release. 
The HQPDU will give a written response to the alien's submission of new 
information as appropriate under the rule. Written submissions, whether 
to the district director or the HQPDU, must be in English or they may 
not be given consideration.
    The alien may be assisted by a person of his or her choice in 
preparing or submitting information in response to the notice of 
custody review. The Service has followed the guidelines set forth in 8 
CFR 212.12(d)(4)(ii) (regarding representation of an alien before a

[[Page 40542]]

Mariel Cuban parole panel) rather than the more formal rules regarding 
attorney representatives at 8 CFR 292.1. Both 8 CFR 212.12 and the 
proposed rule allow the alien to be accompanied by a person of his or 
her choice at the panel interview (subject to the discretion of the 
institution and panel). It may be difficult for the detained alien to 
secure the services of a licensed attorney for each annual review, or 
counsel may change between reviews. Further, giving the alien 
discretion in selecting who will assist him or her in preparation of 
materials for submission to the district director and who will 
accompany him or her to the panel proceeding promotes two important 
Service objectives. These objectives are to make this process as 
flexible and nonadversarial as possible and to promote the alien's 
level of comfort with the proceedings. The alien's representative will 
be required to complete an INS Form G-28 (Notice of Entry of Appearance 
as Attorney or Representative) at the time of the interview or prior to 
reviewing the detainee's records. Attached to any notice of a file 
review or interview, the Service will provide a list of free or low 
cost attorneys and representatives who are located near the alien's 
place of confinement.
    Although the Service will forward any notice or decision relating 
to the custody review to counsel or other representative of record 
through regular mail, the alien bears primary responsibility for 
ensuring that the individual providing assistance to him or her is 
aware of any notices, decisions, or other documentation relating to the 
custody review. Experience with the Cuban Review Plan has demonstrated 
that an alien may have several representatives successively, or may be 
assisted by an attorney, other person, or organization whose 
representation is not known to the Service.
    Any person assisting the alien should not answer for the alien but 
assist the alien in the latter's presentation of information supporting 
a release decision. Whether the alien's case is before the district 
director for review or the panel for an interview, the purpose of the 
review process is to collect information. Because the decision maker 
must evaluate the suitability of the alien for release, it is important 
for the alien to address the district director or panel directly and be 
able to speak freely. The district director and panel need to hear from 
the alien rather than his or her representative.
    Both the Executive Associate Commissioner through the HQPDU and the 
district director have the authority to withdraw approval for release 
and to revoke release or parole in the exercise of discretion. Reasons 
for withdrawal of approval for release or revocation include the 
Service's ability to obtain a travel document and remove the alien, the 
alien's adverse conduct while awaiting release, the decision maker's 
belief that the alien's actions while in the community pose a threat to 
public safety, or any other circumstance that indicates that release 
would no longer be appropriate. If the decision maker withdraws release 
approval or revokes the alien's release or parole, the alien will 
receive written notification specifying the reasons for the withdrawal 
of approval for release or revocation of post-order release or parole.
    This rule addresses Service procedures for conducting post-order 
custody reviews. It does not circumscribe the exercise of the 
Commissioner's authority to direct otherwise, as appropriate. Section 
2.1. of title 8 of the Code of Federal Regulations delegates the 
authority vested with the Attorney General to the Commissioner. Section 
241(a)(3) of the Act vests authority with the Attorney General to 
promulgate regulations governing supervision of aliens beyond the 
removal period and section 241(c)(2) vests authority with the Attorney 
General to grant stays of removal. Therefore, the Commissioner already 
has the authority to release certain aliens from Service custody, issue 
orders of supervision, and grant stays of removal. As directed by the 
Commissioner or Deputy Commissioner, Service officials have authority 
to release certain aliens from Service custody, issue orders of 
supervision, and grant stays of removal. Therefore, this rule also 
amends 8 CFR 241.4, 241.5 and 241.6 to reflect the concurrent authority 
of the Commissioner and other designated Service officials.

What Other Changes Would This Rule Make?

    This rule would terminate the existing procedure of appeal to the 
Board of Immigration Appeals (Board) under 8 CFR 236.1 for an alien who 
receives an unfavorable custody decision from the district director. 
See Matter of Saelee, Interim Decision 3427 (BIA 2000). Since these 
aliens have final orders of removal, all legal issues involving 
removability (and any discretionary relief from removal, if available) 
have been resolved through the Executive Office for Immigration Review 
or through alternate procedures. Custody determinations at this stage 
of the process involve separate and distinct issues, and the Service 
has the knowledge and expertise required to make these custody 
decisions.
    The proposed rule for permanent procedures provides for an 
automatic multi-tiered annual review process subsequent to the district 
director's 90-day review as long as the alien remains in custody. The 
detainee is assured a periodic and thorough review that does not depend 
on the alien's request for a custody review or the filing of an appeal, 
but is required at regular intervals by regulation. This review process 
will ensure timely, scheduled reviews of each alien's case.
    Accordingly, in order to implement a single comprehensive review 
process for post-order custody cases, this proposed rule removes all 
references to post-order detention from 8 CFR 236.1. As revised, 8 CFR 
236.1 would govern detention issues only for aliens who have not yet 
received a final removal order.
    Any case pending before the Board on the effective date of this 
rule when it is published as a final rule will be completed by the 
Board. Should the alien decide to withdraw his or her appeal, the 
Service shall continue to conduct custody reviews under the provisions 
of this rule.
    This proposed regulation also removes 8 CFR 212.13 and any 
references to that section in 8 CFR 212.5 and 8 CFR 212.12. Section 
212.13 established a single Departmental parole review for all 
excludable Mariel Cubans who on the effective date of the regulation 
were detained by virtue of the Attorney General's authority under the 
Act and whose parole had been denied after the exhaustion of the review 
procedures of 8 CFR 212.12. The Departmental Review Panels have 
completed the review of the cases of detainees eligible for such 
review. Thus, there is no longer a need for this regulation. This 
action will not otherwise affect the Cuban Review Plan set forth in 8 
CFR 212.12.

What Must the Alien Demonstrate to Show His or Her Suitability for 
Release?

    The alien must be able to show to the satisfaction of the decision 
maker that he or she does not constitute a danger to public safety or a 
flight risk pursuant to the criteria set forth in the proposed 
regulation.

If a Travel Document Can Be Obtained, How Is the Custody Review 
Process Affected?

    Detention or release of aliens with a final order of removal is 
tied to the Service's mission to enforce the immigration laws and 
protect the interests of the United States, pending

[[Page 40543]]

the aliens' eventual removal from the United States. Accordingly, 
district directors will continue to make efforts to obtain travel 
documents even after review authority has transferred to the HQPDU. 
Headquarters Detention and Deportation, Office of Field Operations will 
also assist in the effort to secure travel documents.
    The ability to secure a travel document by itself supports a 
decision to continue detention pending the removal of the alien and 
obviates the need for further custody review because it means the alien 
can be deported. See 8 CFR 212.12(g)(1). Custody reviews may be 
pretermitted in the case of an alien for whom travel documents are 
available. Pending litigation, an administrative or judicial stay, or 
other barrier to removal does not entitle an alien who can be 
repatriated to release within the United States pending resolution of 
the underlying action or event. Aliens whose removal is deferred under 
8 CFR 208.17 may be considered for release.

Will There Be Special Release Conditions Under the Proposed Rule 
and Will Work Authorization Be Granted?

    Release conditions and work authorization for aliens subject to a 
final order of removal will continue to be governed by 8 CFR 241.5. The 
district director or HQPDU may wish to impose conditions, in addition 
to those enumerated by regulation, such as that the alien obey all 
laws, not associate with any persons involved in criminal activity, not 
associate with anyone convicted of a felony without permission, not 
carry firearms or other dangerous weapons, or such other conditions as 
the decision-maker deems appropriate. Under 8 CFR 241.5(c), a grant of 
work authorization is discretionary but requires the decision maker to 
make an initial finding that the alien cannot be immediately removed 
because no country will accept the alien or that the alien's removal is 
impracticable or contrary to the public interest.
    Sponsorship and evidence of financial support may be required as a 
precursor to release under the proposed rule. The Service has 
determined that appropriate sponsorship is in the best interest of the 
alien and community when an alien is approved for release pending 
repatriation. See, e.g., Fernandez-Roque v. Smith, 734 F. 2d 576 (11th 
Cir. 1984). Although the Service reserves the authority to impose 
conditions of release, including appropriate sponsorship, this rule 
does not compel the Government to tailor existing programs to the needs 
of individual aliens or to create or fund additional programs if 
suitable sponsorship is not located or available for an alien.
    If an alien is detained in a facility that does not provide any 
rehabilitative programs, no negative inference respecting release will 
be drawn against the alien in making a custody determination based on 
the fact that the alien did not participate in such programs. However, 
if the facility has such programs available to the alien but the alien 
refuses to participate, that fact may be considered by the decision-
maker.

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. This rule would 
provide a more uniform review process governing the detention of 
criminal, inadmissible, and other aliens who have received a final 
administrative removal order but whose departure has not been effected 
within the 90-day removal period. This rule does not affect small 
entities as that term is defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 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 rule has been 
submitted to the Office of Management and Budget for review.

Executive Order 13132

    This regulation 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 section 6 
of Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988

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

List of Subjects

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 241

    Administrative practice and procedure, Aliens, Immigration.

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

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    1. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
1226, 1227, 1228, 1252, 8 CFR part 2.


Sec. 212.5  [Amended]

    2. Section 212.5(f) is amended by revising the phrase 
``Secs. 212.12 and 212.13'' to read ``Sec. 212.12.;''


Sec. 212.12  [Amended]

    3. Section 212.12 is amended by:
    a. In paragraph (b) introductory text, revising the phrase ``Except 
as provided in Sec. 212.13, the authority'' to read ``The authority;'' 
and by
    b. In paragraph (g)(2), removing the word ``either'' and removing 
the phrase ``or Sec. 212.13, whichever is later.''

[[Page 40544]]

Sec. 212.13  [Removed]

    4. Remove Sec. 212.13.

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

    5. The authority citation for part 236 continues 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.

    6. Section 236.1 is amended by:
    a. Removing the last sentence in paragraph (d)(1);
    b. Revising paragraph (d)(2); and by
    c. Removing paragraph (d)(3)(iii), to read as follows:


Sec. 236.1  Apprehension, custody, and detention.

* * * * *
    (d) * * *
    (2) Application to the district director. After expiration of the 
7-day period in paragraph (d)(1) of this section, the respondent may 
request review by the district director of the conditions of his or her 
release.
* * * * *

PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

    7. 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.

    8. Section 241.4 is revised to read as follows:


Sec. 241.4  Continued detention of inadmissible, criminal, and other 
aliens beyond the removal period.

    (a) Scope. The authority to continue an alien in custody or grant 
release or parole under sections 241(a)(6) and 212(d)(5)(A) of the Act 
shall be exercised by the Commissioner or Deputy Commissioner, as 
follows: Except as otherwise directed by the Commissioner or her 
designee, the Executive Associate Commissioner Field Operations or the 
district director may continue an alien in custody beyond the removal 
period described in section 241(a)(1) of the Act pursuant to the 
procedures described in this section. Except as provided in paragraph 
(b)(2) of this section, the provisions of this section apply to custody 
determinations for the following groups of aliens:
    (1) An alien who is inadmissible under section 212 of the Act, 
including an excludable alien convicted of one or more aggravated 
felony offenses and subject to the provisions of section 501(b) of the 
Immigration Act of 1990, Public Law 101-649 (codified at 8 U.S.C. 
1226(e)(1) through (3)(1994));
    (2) An alien who is removable under section 237(a)(1)(C) of the 
Act;
    (3) An alien who is removable under sections 237(a)(2) or 237(a)(4) 
of the Act, including deportable criminal aliens whose cases are 
governed by former section 242 of the Act prior to amendment by the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 
Public Law 104-208, Div. C; and
    (4) An alien who is removable under any other section of the Act, 
including an alien granted withholding or deferral of removal under 8 
CFR part 208, may be detained beyond the removal period if the decision 
maker determines that the alien is unlikely to comply with the removal 
order or is a risk to the community.
    (b) Applicability to particular aliens--(1) Motions to reopen. An 
alien who has filed a motion to reopen immigration proceedings for 
consideration of relief from removal, including withholding or deferral 
of removal pursuant to 8 CFR 208.16 or 208.17, shall remain subject to 
the provisions of this section unless the motion to reopen is granted. 
Section 236 of the Act and 8 CFR 236.1 govern custody determinations 
for aliens who are in pending immigration proceedings before the 
Executive Office for Immigration Review.
    (2) Parole for certain Cuban nationals. The review procedures in 
this section do not apply to any Mariel Cuban who is being detained by 
the Service pending an exclusion or removal proceeding, or pending his 
or her return to Cuba or removal to another country. Instead, the 
determination whether to release on parole, or to revoke such parole, 
or to detain, shall in the case of a Mariel Cuban be governed by the 
procedures in 8 CFR 212.12.
    (c) Delegation of authority. The Attorney General's statutory 
authority to make custody determinations under sections 241(a)(6) and 
212(d)(5)(A) of the Act when there is a final order of removal, is 
delegated as follows:
    (1) District directors. The initial custody determination described 
in paragraph (h) of this section and any further custody determination 
concluded in the 3-month period immediately following expiration of the 
90-day removal period, subject to the provisions of paragraph (c)(2) of 
this section, will be made by the district director having jurisdiction 
over the alien. The district director shall maintain appropriate files 
respecting each detained alien reviewed for possible release, and shall 
have authority to determine the order in which the cases shall be 
reviewed, and to coordinate activities associated with these reviews in 
his or her respective district.
    (2) Headquarters Post-Order Detention Unit (HQPDU). For any alien 
the district director refers for further review after the 90-day 
removal period, or any alien who has not been released or repatriated 
by the expiration of the 3-month period after the 90-day review, all 
further custody determinations will be made by the Executive Associate 
Commissioner, acting through the HQPDU.
    (3) The HQPDU review plan. The Executive Associate Commissioner 
shall appoint a Director of the HQPDU. The Director of the HQPDU shall 
have authority to establish and maintain appropriate files respecting 
each detained alien to be reviewed for possible release, to determine 
the order in which the cases shall be reviewed, and to coordinate 
activities associated with these reviews.
    (4) Additional delegation of authority. All references to the 
Executive Associate Commissioner and district director in this section 
shall be deemed to include any person or persons (including a 
committee) designated in writing by the district director or Executive 
Associate Commissioner to exercise powers under this section.
    (d) Custody determinations. A copy of any decision by the district 
director or Executive Associate Commissioner to release or to detain an 
alien shall be provided to the detained alien. A decision to retain 
custody shall briefly set forth the reasons for the continued 
detention. A decision to release may contain such special conditions as 
are considered appropriate in the opinion of the Service. 
Notwithstanding any other provisions of this section, there is no 
appeal from the district director's or the Executive Associate 
Commissioner's decision.
    (1) Showing by the alien. The district director or the Executive 
Associate Commissioner may release an alien if the alien demonstrates 
to the satisfaction of the Attorney General or her designee that his or 
her release will not pose a danger to the community or to the safety of 
other persons or to property or a significant risk of flight pending 
such alien's removal from the United States. The district director or 
the Executive Associate Commissioner may also, in accordance with the 
procedures and consideration of the factors set forth in this section, 
continue in custody any alien described in paragraphs (a) and (b)(1) of 
this section.

[[Page 40545]]

    (2) Service of decision and other documents. All notices, 
decisions, or other documents in connection with the custody reviews 
conducted under this section by the district director or Executive 
Associate Commissioner shall be served on the alien, in accordance with 
8 CFR 103.5a, by the Service district office having jurisdiction over 
the alien. Release documentation (including employment authorization if 
appropriate) shall be issued by the district office having jurisdiction 
over the alien in accordance with the custody determination made by the 
district director or by the Executive Associate Commissioner. Copies of 
all such documents will be retained in the alien's record and forwarded 
to the HQPDU.
    (3) Alien's representative. The alien's representative is required 
to complete an INS Form G-28, Notice of Entry of Appearance as Attorney 
or Representative, at the time of the interview or prior to reviewing 
the detainee's records. The Service will forward by regular mail a copy 
of any notice or decision that is being served on the alien only to the 
attorney or representative of record. The alien remains responsible for 
notification to any other individual providing assistance to him or 
her.
    (e) Criteria for release. Before making any recommendation or 
decision to release a detainee, a majority of the Review Panel members, 
or the Director of the HQPDU in the case of a record review, must 
conclude that:
    (1) Travel documents for the alien are not available or, in the 
opinion of the Service, immediate removal, while proper, is otherwise 
not practicable or not in the public interest;
    (2) The detainee is presently a non-violent person;
    (3) The detainee is likely to remain nonviolent;
    (4) The detainee is not likely to pose a threat to the community 
following his or her release;
    (5) The detainee is not likely to violate the conditions of his or 
her release; and (6) The detainee does not pose a significant flight 
risk.
    (f) Factors for consideration. The following factors should be 
weighed in considering whether to recommend further detention or 
release of a detainee:
    (1) The nature and number of disciplinary infractions or incident 
reports received when incarcerated or while in Service custody;
    (2) The detainee's criminal conduct and criminal convictions, 
including consideration of the nature and severity of the alien's 
convictions, sentences imposed and time actually served, probation and 
criminal parole history, evidence of recidivism, and other criminal 
history;
    (3) Any available psychiatric and psychological reports pertaining 
to the detainee's mental health;
    (4) Evidence of rehabilitation including institutional progress 
relating to participation in work, educational, and vocational 
programs, where available;
    (5) Favorable factors, including ties to the United States such as 
the number of close relatives residing here lawfully;
    (6) Prior immigration violations and history;
    (7) The likelihood that the alien is a significant flight risk or 
may abscond to avoid removal, including history of escapes, failures to 
appear for judicial or other proceedings, absence without leave from 
any halfway house or sponsorship program, and other defaults; and
    (8) Any other information that is probative of whether the alien is 
likely to adjust to life in a community, is likely to engage in future 
acts of violence, is likely to engage in future criminal activity, is 
likely to pose a danger to the safety of himself or herself or to other 
persons or to property, or is likely to violate the conditions of his 
or her release from immigration custody pending removal from the United 
States.
    (g) Travel documents and docket control for aliens continued in 
detention beyond the removal period--(1) In general. The district 
director shall continue to undertake appropriate steps to secure travel 
documents for the alien both before and after the expiration of the 
removal period. If the district director is unable to secure travel 
documents within the removal period, he or she shall apply for 
assistance from Headquarters Detention and Deportation, Office of Field 
Operations. The district director shall promptly advise the HQPDU 
Director when travel documents are obtained for an alien whose custody 
is subject to review by the HQPDU. The Service's determination that 
receipt of a travel document is likely may by itself warrant 
continuation of detention pending the removal of the alien from the 
United States.
    (2) Availability of travel document. In making a custody 
determination, the district director and the Director of the HQPDU 
shall consider the ability to obtain a travel document for the alien. 
If it is established at any stage of a custody review that, in the 
judgment of the Service, travel documents can be obtained, or such 
document is forthcoming, the alien will not be released unless 
immediate removal is not practicable or in the public interest.
    (3) Removal. The Service will not conduct a custody review under 
these procedures when the Service notifies the alien that it is ready 
to execute an order of removal.
    (4) Alien's cooperation. Release will be denied in accordance with 
section 241(a)(1)(C) of the Act if the alien fails or refuses to 
cooperate in the process of obtaining a travel document.
    (h) District director's custody review procedures. The district 
director's custody determination will be developed in accordance with 
the following procedures:
    (1) Record review. The district director will conduct the initial 
custody review. For aliens described in paragraphs (a) and (b)(1) of 
this section, the district director will conduct a file review prior to 
the expiration of the 90-day removal period. This initial post-order 
custody review will consist of a review of the alien's records, and any 
written information submitted in English to the district director by or 
on behalf of the alien. However, the district director may in his or 
her discretion schedule a personal or telephonic interview with the 
alien as part of this custody determination. The district director may 
also consider any other relevant information relating to the alien or 
his or her circumstances and custody status.
    (2) Notice to alien. The district director will provide written 
notice to the detainee approximately 30 days in advance of the pending 
record review so that the alien may submit information in writing in 
support of his or her release. The alien may be assisted by a person of 
his or her choice, subject to the institution and panel's discretion, 
in preparing or submitting information in response to the district 
director's notice. Such assistance shall be at no expense to the 
Government. If the alien or his or her representative requests 
additional time to prepare materials beyond the time when the district 
director expects to conduct the file review, such a request will 
constitute a waiver of the requirement that the review occur prior to 
the expiration of the removal period.
    (3) Factors for consideration. The district director's review will 
include but is not limited to consideration of the factors described in 
paragraph (f) of this section. Before making any decision to release a 
detainee, the district director must be able to reach the conclusions 
set forth in paragraph (e) of this section.
    (4) District director's decision. The district director will notify 
the alien in writing that he or she is to be released from custody, or 
that he or she will be

[[Page 40546]]

continued in detention pending repatriation or further review of his or 
her custody status.
    (5) District office staff. The district director may delegate the 
authority to conduct the custody review, develop recommendations, or 
render the custody or release decision to those persons directly 
responsible for detention within his or her district. This includes the 
deputy district director, the assistant director for detention and 
deportation, the officer-in-charge of a detention center, persons 
acting in such capacities, or such other persons as the district 
director may designate from the professional staff of the Service.
    (i) Determinations by the Executive Associate Commissioner. 
Determinations by the Executive Associate Commissioner to release or 
retain custody of aliens shall be developed in accordance with the 
following procedures.
    (1) Review panels. The HQPDU Director shall designate a panel or 
panels to make recommendations to the Executive Associate Commissioner. 
A Review Panel shall, except as otherwise provided, consist of two 
persons. Members of a Review Panel shall be selected from the 
professional staff of the Service. All recommendations by the two 
member Review Panel shall be unanimous. If the vote of the two-member 
Review Panel is split, it shall adjourn its deliberations concerning 
that particular detainee until a third Review Panel member is added. 
The third member of any Review Panel shall be the Director of the HQPDU 
or his or her designee. A recommendation by a three-member Review Panel 
shall be by majority vote.
    (2) Record review. Initially, and at the beginning of each 
subsequent review, the HQPDU Director or a Review Panel shall review 
the alien's file. Upon completion of this record review, the HQPDU 
Director or the Review Panel may issue a written recommendation that 
the alien be released and reasons therefore.
    (3) Personal interview. (i) If the HQPDU Director does not accept a 
panel's recommendation to grant release after a record review, or if 
the alien is not recommended for release, a Review Panel shall 
personally interview the detainee. The scheduling of such interviews 
shall be at the discretion of the HQPDU Director. The HQPDU Director 
will provide a translator if he or she determines that such assistance 
is appropriate.
    (ii) The alien may be accompanied during the interview by a person 
of his or her choice, subject to the institution's and the panel's 
discretion, who is able to attend at the time of the scheduled 
interview. Such assistance shall be at no expense to the Government. 
The alien may submit to the Review Panel any information, in English, 
that he or she believes presents a basis for his or her release.
    (4) Alien's participation. Every alien shall respond to questions 
or provide other information when requested to do so by Service 
officials for the purpose of carrying out the provisions of this rule.
    (5) Panel recommendation. Following completion of the interview and 
its deliberations, the Review Panel shall issue a written 
recommendation that the alien be released or remain in custody pending 
removal or further review. This written recommendation shall include a 
brief statement of the factors that the Review Panel deems material to 
its recommendation.
    (6) Determination. The Executive Associate Commissioner shall 
consider the recommendation and appropriate file material and issue a 
custody determination, in the exercise of discretion under the 
standards of this section. The Executive Associate Commissioner's 
review will include but is not limited to consideration of the factors 
described in paragraph (f) of this section. Before making any decision 
to release a detainee, the Executive Associate Commissioner must be 
able to reach the conclusions set forth in paragraph (e) of this 
section. The Executive Associate Commissioner is not bound by the 
panel's recommendation.
    (j) Conditions of release--(1) In general. The district director or 
Executive Associate Commissioner may in his or her discretion impose 
such conditions or special conditions on release as the Service 
considers appropriate in an individual case or cases, including but not 
limited to the conditions of release noted in Sec. 212.5(c) of this 
chapter and Sec. 241.5. An alien released under this section must abide 
by the release conditions specified by the Service in relation to his 
or her release or sponsorship.
    (2) Sponsorship. The district director or Executive Associate 
Commissioner may, in the exercise of discretion, condition release on 
placement with a close relative who agrees to act as a sponsor, such as 
a parent, spouse, child, or sibling who is a lawful permanent resident 
or a citizen of the United States, or may condition release on the 
alien's placement or participation in an approved halfway house, mental 
health project, or community project when, in the opinion of the 
Service, such condition is warranted. No detainee may be released until 
sponsorship, housing, or other placement has been found for the 
detainee, if ordered, including but not limited to evidence of 
financial support.
    (3) Employment authorization. The district director and Executive 
Associate Commissioner may in their discretion grant employment 
authorization under the same conditions set forth in Sec. 241.5(c) for 
aliens released under an order of supervision.
    (4) Withdrawal of release approval. The district director or 
Executive Associate Commissioner may, in their discretion, withdraw 
approval for release of any detained alien prior to release when, in 
the decision maker's opinion, the conduct of the detainee, or any other 
circumstance, indicates that release would no longer be appropriate.
    (k) Timing of reviews. The timing of reviews shall be in accordance 
with the following guidelines:
    (1) District director. (i) Prior to the expiration of the 90-day 
removal period, the district director shall conduct a custody review 
for an alien described in paragraphs (a) and (b)(1) of this section 
where the alien's removal, while proper, cannot be accomplished because 
no country will accept the alien, or removal of the alien prior to 
expiration of the removal period is impracticable or contrary to the 
public interest. As provided in paragraph (h)(4) of this section, the 
district director will notify the alien in writing that he or she is to 
be released from custody, or that he or she will be continued in 
detention pending repatriation or further review of his or her custody 
status.
    (ii) When release is denied pending the alien's repatriation, the 
district director in his or her discretion may retain responsibility 
for custody determinations for up to 3 months after expiration of the 
90-day removal period, during which time the district director may 
conduct such additional review of the case as he or she deems 
appropriate. The district director may release the alien if he or she 
is not removed within the 3-month period following the expiration of 
the 90-day removal period, in accordance with paragraphs (e), (f), and 
(j) of this section, or the district director may refer the alien to 
the HQPDU for further custody review.
    (2) HQPDU reviews--(i) District director referral for further 
review. When the district director refers a case to the HQPDU for 
further review, as provided in paragraph (c)(2) of this section, 
authority over the custody determination transfers to the Executive 
Associate Commissioner, according to procedures established by the 
HQPDU. The Service will provide the alien with approximately 30 days 
notice of this

[[Page 40547]]

further review, which will ordinarily be conducted by the expiration of 
the removal period or as soon thereafter as practicable.
    (ii) District director retains jurisdiction. When the district 
director has advised the alien at the 90-day review as provided in 
paragraph (h)(4) of this section that he or she will remain in custody 
pending repatriation, and the alien is not removed within 3 months of 
the district director's decision, authority over the custody 
determination transfers from the district director to the Executive 
Associate Commissioner. The initial HQPDU review will ordinarily be 
conducted at the expiration of the 3-month period after the 90-day 
review or as soon thereafter as practicable. The Service will provide 
the alien with approximately 30 days notice of that review.
    (iii) Continued detention cases. A subsequent review shall 
ordinarily be commenced for any detainee within approximately one year 
of a refusal by the Executive Associate Commissioner to grant release. 
Not more than once every three months in the interim between annual 
reviews, the alien may submit a written request to the HQPDU for 
release consideration based on a proper showing of a material change in 
circumstances since the last annual review. The HQPDU shall respond to 
the alien's request in writing within approximately 90 days.
    (iv) Review scheduling. Reviews will be conducted within the time 
periods specified in paragraphs (k)(1)(i), (k)(2)(i), (k)(2)(ii), and 
(k)(2)(iii) of this section or as soon as possible thereafter, allowing 
for any unforeseen circumstances or emergent situation.
    (v) Discretionary reviews. The HQPDU Director, in his or her 
discretion, may schedule a review of a detainee at shorter intervals 
when he or she deems such review to be warranted.
    (3) Postponement of review. In the case of an alien who is in the 
custody of the Service, the district director or the HQPDU Director 
may, in his or her discretion, suspend or postpone the custody review 
process if such detainee's prompt deportation is practicable and 
proper, or for other good cause. The decision and reasons for the delay 
shall be documented in the alien's file. Reasonable care will be 
exercised to assure that the alien's case is reviewed once the reason 
for delay is remedied or if the alien is not removed from the United 
States as anticipated at the time review was suspended or postponed.
    (4) Transition provisions. (i) The provisions of this section apply 
to cases that have already received the 90-day review. If the alien's 
last review under the procedures set out in the Executive Associate 
Commissioner memoranda entitled Detention Procedures for Aliens Whose 
Immediate Repatriation is Not Possible or Practicable, February 3, 
1999; Supplemental Detention Procedures, April 30, 1999; Interim 
Changes and Instructions for Conduct of Post-order Custody Reviews, 
August 6, 1999, was a file review and the alien remains in custody, the 
HQPDU will conduct a custody review within 6 months of that review. If 
the alien's last review included an interview, the HQPDU review will be 
scheduled one year from the last review. These reviews will be 
conducted pursuant to the procedures in paragraph (i) of this section, 
within the time periods specified in this paragraph or as soon as 
possible thereafter, allowing for resource limitations, unforeseen 
circumstances, or an emergent situation.
    (ii) Any case pending before the Board on the effective date (after 
this rule is published as a final rule) will be completed by the Board. 
If the Board affirms the district director's decision to continue the 
alien in detention, the next scheduled custody review will be conducted 
one year after the Board's decision in accordance with the procedures 
in paragraph (i) of this section.
    (l) Revocation of release--(1) Violation of conditions of release. 
Any alien described in paragraphs (a) or (b)(1) of this section who has 
been released under an order of supervision or other conditions of 
release who violates the conditions of release may be returned to 
custody. Any such alien who violates the conditions of an order of 
supervision is subject to the penalties described in section 243(b) of 
the Act. Upon revocation, the alien will be notified of the reasons for 
revocation of his or her release or parole.
    (2) Determination by the Service. The Executive Associate 
Commissioner shall have authority, in the exercise of discretion, to 
revoke release and return to Service custody an alien previously 
approved for release under the procedures in this section. A district 
director may also revoke release of an alien when, in the district 
director's opinion, revocation is in the public interest and 
circumstances do not reasonably permit referral of the case to the 
Executive Associate Commissioner. Release may be revoked in the 
exercise of discretion when, in the opinion of the revoking official:
    (i) The purposes of release have been served;
    (ii) The alien violates any condition of release;
    (iii) It is appropriate to enforce a removal order or to commence 
removal proceedings against an alien; or
    (iv) The conduct of the detainee, or any other circumstance, 
indicates that release would no longer be appropriate.
    (3) Timing of review when release is revoked. The HQPDU Director 
shall schedule the review process in the case of an alien whose 
previous release or parole from immigration custody pursuant to a 
decision of either the district director or the Executive Associate 
Commissioner under the procedures in this section has been or is 
subject to being revoked. The normal review process will commence with 
notification to the alien of a file review and scheduling of an 
interview, which will ordinarily be expected to occur within 
approximately 3 months after release is revoked. Thereafter, custody 
reviews will be conducted annually under the provisions of paragraphs 
(i), (j), and (k) of this section.
    9. Section 241.5 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec. 241.5  Conditions of release after removal period.

    (a) Order of supervision. An alien released pursuant to Sec. 241.4 
shall be released pursuant to an order of supervision. The 
Commissioner, Deputy Commissioner, Executive Associate Commissioner 
Field Operations, regional director, district director, acting district 
director, deputy district director, assistant district director for 
investigations, assistant district director for detention and 
deportation, or officer-in-charge may issue Form I-220B, Order of 
Supervision. The order shall specify conditions of supervision 
including, but not limited to, the following:
* * * * *
    10. Section 241.6 is revised to read as follows:


Sec. 241.6  Administrative stay of removal.

    (a) Any request of an alien under a final order of deportation or 
removal for a stay of deportation or removal shall be filed on Form I-
246, Stay of Removal, with the district director having jurisdiction 
over the place where the alien is at the time of filing. The 
Commissioner, Deputy Commissioner, Executive Associate Commissioner 
Field Operations, regional director, or district director, in his or 
her discretion and in consideration of factors such as are listed in 
Sec. 212.5 of this chapter and section 241(c) of the Act, may grant a 
stay of removal or deportation for such time and under such conditions 
as he or she may deem appropriate. Neither the request nor the failure 
to receive notice

[[Page 40548]]

of disposition of the request shall delay removal or relieve the alien 
from strict compliance with any outstanding notice to surrender for 
deportation or removal.
    (b) Denial by the Commissioner, Deputy Commissioner, Executive 
Associate Commissioner Field Operations, regional director, or district 
director of a request for a stay is not appealable, but such denial 
shall not preclude an immigration judge or the Board from granting a 
stay in connection with a motion to reopen or a motion to reconsider as 
provided in 8 CFR part 3.
    (c) The Service shall take all reasonable steps to comply with a 
stay granted by an immigration judge or the Board. However, such a stay 
shall cease to have effect if granted (or communicated) after the alien 
has been placed aboard an aircraft or other conveyance for removal and 
the normal boarding has been completed.

    Dated: June 23, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-16560 Filed 6-29-00; 8:45 am]
BILLING CODE 4410-10-P