[Federal Register Volume 65, Number 246 (Thursday, December 21, 2000)]
[Rules and Regulations]
[Pages 80281-80298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32432]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 212, 236, and 241

[INS No. 2029-00; AG Order No. 2349-2000]
RIN 1115-AF82


Detention of Aliens Ordered Removed

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule amends 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 order of 
removal, deportation, or exclusion but whose departure has not been 
effected within the 90-day removal period. Such a process is necessary 
to ensure periodic custody reviews for aliens detained beyond the 
removal period and to provide for consistency in decision-making. 
Because the Service is developing a specialized, ongoing administrative 
review process for these custody determinations, this rule eliminates 
the appellate role of the Board of Immigration Appeals (Board) in post-
final order custody determinations. This rule also amends 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.

[[Page 80282]]


DATES: This rule is effective December 21, 2000.

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 Final 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 (ADAA), Public Law 100-690, and the Immigration Act of 1990 
(Immact), Public Law 101-649. Congress extended these restrictions to 
other categories of crimes in the Antiterrorism and Effective Death 
Penalty Act of 1996 (AEDPA), Public Law 104-132, and the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 
Public Law 104-208. Pursuant to these amendments, the Service's 
continued detention of aliens convicted of aggravated felonies has not 
been subject to the statutory time limits that apply in the case of 
certain noncriminal aliens. Under section 241(a)(6) of the Immigration 
and Nationality Act (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 statutory removal period set forth in section 241(a)(1) of 
the Act, 8 U.S.C. 1231(a)(1), including aliens determined by the 
Attorney General to constitute a risk to the community or to be 
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 90-day removal period.
    The Department of Justice (Department) has determined that a 
separate custody review process is appropriate for aliens who are 
detained beyond the 90-day removal period. This rule permits a 
comprehensive and fair review of such post-order detention by 
establishing an automatic, centralized, and multi-layered process to 
determine whether detainees 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 concerns arising from 
another country's unjustified delay or refusal to accept the return of 
its nationals. This provision also applies to criminal aliens granted 
withholding or deferral of removal for whom removal to a third country 
is impractical.
    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 assists the decision-maker in determining whether an 
alien is an appropriate candidate for release from custody after the 
expiration of the removal period. On December 21, 2000, these 
procedures will supersede the Pearson memoranda. The new procedures are 
modeled after those governing the Mariel Cubans at 8 CFR 212.12 and 
consist of a records review, 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 conducted pursuant to 8 CFR 
212.12, the review process is similar for both groups of aliens.
    On June 30, 2000, the Department published in the Federal Register 
at 65 FR 40540 a proposed rule with request for comments to implement a 
permanent, periodic custody review process for aliens whose removal has 
not been effected at the expiration of the 90-day removal period 
pursuant to section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). The 
initial comment period was for 30 days and expired on July 31, 2000. 
However, in response to several commenters' requests for an extension, 
the comment period was extended for 10 days until August 11, 2000.
    The Department received numerous public comments recommending 
substantive modifications to the proposed rule. Many of the comments 
overlap or endorse the submissions of other commenters. For this 
reason, the Service will address the comments by issue rather than by 
reference to the individual comments.
    After careful consideration of all comments, the Department will 
retain the basic structure of the proposed rule, with some 
modifications. This rule implements an important program in furtherance 
of congressional and executive policy to ensure the removal of aliens 
who commit serious crimes in this country and to protect the safety of 
our citizens and lawful residents against dangerous individuals or 
those posing a flight risk.

Constitutionality and Statutory Authority

    Numerous commenters expressed the view that the proposed rule is 
not authorized by statute or violates the Constitution of the United 
States. Post-order detention cases are the subject of on-going 
litigation. Two courts of appeals have upheld the Attorney General's 
authority to continue detention after the removal period. See Duy Dac 
Ho v. Joseph Greene, 204 F.3d 1045 (10th Cir. 2000); Zadvydas v. 
Underdown, 185 F.3d 279 (5th Cir. 1999), cert. granted, 121 S.Ct. 297 
(2000).
    The Ninth Circuit held, however, in Ma v. Reno, 208 F.3d 815, 822 
(9th Cir. 2000), cert. granted, 121 S.Ct. 297 (2000), that detention 
may not be extended more than a ``reasonable time'' beyond the 
statutory removal period. The United States Supreme Court recently 
granted certiorari in the Zadvydas and Ma cases to resolve the 
disagreements in the courts of appeals.
    In Ho, the Tenth Circuit upheld the detention of inadmissible and 
deportable criminal aliens under 8 U.S.C. 1231(a)(6) on statutory and 
constitutional grounds. 204 F.3d at 1055-1060. The court held, among 
other things, that section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), 
expressly allows the Attorney General, in her discretion, to continue 
detaining certain aliens, including aliens who she has determined would 
pose a risk of danger or flight if released, beyond the 90-day removal 
period while efforts are being made to remove them from the United 
States. Id. at 1057. The court declined to impose a time limit on 
detention, stating that it will not ``substitute its

[[Page 80283]]

judgment for that of Congress by reading into the statute a time limit 
that is not included in the plain language of the statute.'' Id. at 
1057.
    Like the Tenth Circuit, the Fifth Circuit, in Zadvydas, also 
rejected a constitutional challenge to continued detention under 
section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). 185 F.3d at 294-97. 
The Fifth Circuit did not question the statutory authority of the 
Attorney General to detain a criminal alien beyond the 90-day period 
where the country to which the alien had been ordered removed declined 
to accept his return in the near future, and it held that the continued 
detention of a dangerous criminal alien in these circumstances does not 
violate substantive or procedural due process. The court analyzed the 
constitutional question on the premise that the detained alien is able 
to obtain periodic review of his detention under Service regulations, 
see 185 F.3d at 287-88 & n.9, and that the availability of such 
periodic review precluded characterization of the alien's detention as 
indefinite or permanent. Id. at 291 (citations omitted). While 
acknowledging that a deportable resident alien is entitled to greater 
procedural due process rights during the removal proceedings themselves 
than those accorded an excludable alien, the court in Zadvydas 
concluded that once a removal order has become final and the only act 
remaining to be carried out is the actual expulsion of the alien, no 
distinction exists between the constitutional rights of former resident 
aliens and those of excludable aliens. Id. at 294-97. Therefore, the 
continued detention of a deportable criminal alien who cannot be 
immediately removed under section 241(a)(6) of the Act, 8 U.S.C. 
1231(a)(6), does not violate substantive due process where the 
government has an interest in protecting society from further criminal 
activity by the alien and in ensuring that he or she does not flee and 
thereby frustrate his or her eventual removal. Id. at 296-97.
    The Ninth Circuit has interpreted the detention statute in a manner 
that presents a direct conflict with the decisions of the Tenth and 
Fifth Circuits. In Ma, the court stated that it could avoid deciding 
the constitutional issues by construing the statute to prohibit 
detention, in many cases, beyond the 90-day removal period. While 
recognizing that section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), 
unambiguously authorizes the Attorney General to continue criminal 
aliens in custody ``beyond the removal period,'' the court nevertheless 
found that the statute does not specify a particular length of time for 
detention and therefore can be construed to permit detention ``only for 
a reasonable time beyond the statutory removal period.'' 208 F.3d at 
821-22, 827. In Ma itself, because it concluded that there was not a 
reasonable likelihood that the alien would be returned to Cambodia in 
the reasonably foreseeable future, the court held that the Service was 
required to release him immediately upon the expiration of the 
statutory removal period. In reaching that result, the court relied on 
several Ninth Circuit decisions from the 1920's and 1930's interpreting 
a provision in the Immigration Act of 1917 and on international law. 
Id. at 822, 827-30. Because it concluded that detention beyond 90 days 
is not statutorily authorized in Ma's case, the court did not address 
the substantive and procedural constitutional issues that were 
addressed in Ho and Zadvydas.
    In formulating the proposed custody review procedure, the 
Department did not follow the Ninth Circuit's statutory ruling because 
it is not supported by the statute's text or history. The Attorney 
General construes section 241(a)(6) to authorize her to continue to 
detain, beyond the 90-day removal period, criminal aliens and other 
aliens whose release would present a risk of harm to the community or 
of flight by the alien. That interpretation is supported by the text of 
section 241(a)(6), which unambiguously authorizes the Attorney General 
to detain the specified aliens ``beyond the removal period'' and 
imposes no time limit; by the related detention provisions in sections 
235(c)and 241(a)(2), which make clear that granting the Attorney 
General even the discretion to release criminal aliens after a notice 
to appear has been filed is an exception to a general statutory rule of 
mandatory detention of such aliens; by section 241(a)(7), which makes 
clear that when Congress wanted to create a special exception for 
aliens whose countries will not immediately accept their return it did 
so explicitly (see also IIRIRA Secs. 303(b)(3)(B)(ii) and 307(a)) 
(referring to situations in which countries will not accept return of 
their nationals); and by the statutory history of the amendments to the 
Act leading up to the enactment of section 241(a)(6) in 1996, as well 
as the legislative history of that enactment itself.
    The Attorney General's authority has been sustained by the Third, 
Fifth, and Tenth Circuits, which have upheld the constitutionality of 
post-order detention under section 241(a)(6)of the Act, 8 U.S.C. 
1231(a)(6), and the Pearson procedures. According to these courts, 
detention under section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), is 
not unconstitutional where the alien's removal cannot be effected 
immediately, the alien is determined to be a danger or a flight risk if 
released, and he or she is afforded a periodic and meaningful 
opportunity to seek release from custody. See, e.g., Ho, 204 F.3d at 
1057-60; Ngo v. INS, 192 F.3d 390, 397 (3rd Cir. 1999); Zadvydas, 185 
F.3d at 287-88. The final rule is structured to afford this type of 
review. It provides a custody review procedure that is comparable to 
the Pearson review scheme that two circuit courts have endorsed, see 
Ngo, 192 F.3d at 395-98; Zadvydas, 185 F.3d at 297, and the Mariel 
Cuban Plan that the Ninth Circuit approved in Barrera-Echavarria v. 
Rison, 44 F.3d 1441, 1448 (9th Cir. 1995) (en banc). It has the 
procedural mechanisms that those courts have sustained against 
procedural due process challenges.
    Another commenter felt that the final rule should express 
commitment to protecting and restoring the alien's liberty. 
Notwithstanding their physical presence in the United States, aliens 
under final orders of removal have no greater constitutional rights 
with respect to their application to be released from custody than 
excludable aliens seeking admission to the United States for the first 
time. Ho, 204 F.3d at 1058-59; Zadvydas, 185 F.3d at 294-95. The 
government has a compelling interest in expelling aliens under final 
removal orders, just as it does excludable aliens. Ho, 204 F.3d at 
1059; Zadvydas, 185 F.3d at 296. Furthermore, the failure of another 
government to agree to the return of its nationals does not divest the 
United States of its sovereign authority to enforce its immigration 
laws, nor does it confer on the alien a right to be released back into 
the United States. See Jean v. Nelson, 727 F.2d 957, 975 (11th Cir. 
1984) (en banc), aff'd, 472 U.S. 846 (1985). To conclude otherwise 
would mean that an alien who has been ordered removed from the United 
States nonetheless enjoys a constitutional right to release from 
custody that is greater than what the alien had when he or she was 
still in proceedings. Zadvydas, 185 F.3d at 296.
    Finally, a commenter opined that Sec. 241.4(k)(1)(ii) is illegal 
and should be deleted in its entirety, as well as any other reference 
in the rule to the additional three-month period that the district 
director may retain detention authority after the expiration of the 
removal period. Section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), 
plainly authorizes the Attorney General to exercise her discretion in 
determining whether to retain custody of criminal

[[Page 80284]]

aliens beyond the 90-day removal period. See H.R. Rep. No. 104-469, 
pt.l, at 234 (1996). The Department, while carefully considering the 
views of the commenters, has determined that the government's statutory 
interpretation is consistent with the statutory text and history and 
will retain the basic structure of the proposed rule.

Scope

    One commenter suggested changes to proposed Secs. 241.4(a) and 
(a)(4) that would circumscribe the Attorney General's authority 
contrary to the express language of section 241(a)(6) of the Act, 8 
U.S.C. 1231(a)(6). The commenter suggested inserting language that 
detention be permissible only if necessary to effectuate removal. The 
Department declines to limit the Attorney General's authority to 
exercise her discretion in the manner suggested by the commenter.
    Some commenters objected to proposed Sec. 241.4(a)(4) because the 
scope of the rule includes an alien who has been granted withholding or 
deferral of removal under 8 CFR 208. The nature of the comments suggest 
that there may be some confusion over the reference to withholding and 
deferral of removal in proposed Sec. 241.4(a)(4). This section has been 
revised and paragraphs 241.4(a) and (b)(3) have been added to the final 
rule to clarify the applicability of these custody procedures.
    Many commenters suggested that the rule should create a presumption 
of immediate release in the case of an alien granted withholding of 
removal under either section 241(b)(3) of the Act or under the 
Convention Against Torture. The Department declines to adopt this 
suggestion, as the decision to detain an individual granted withholding 
or deferral of removal requires a fact-specific analysis consistent 
with the provisions of section 241 of the Act. A grant of withholding 
or deferral of removal is limited to the specific country or countries 
designated in the order and does not protect an individual from removal 
to a third country. Moreover, a grant of withholding or deferral of 
removal does not constitute a grant of admission to the United States; 
decisions regarding detention and release are subject to section 241 of 
the Act. With respect to deferral of removal, 8 CFR 208.17(c) 
specifically provides that persons granted deferral who are otherwise 
subject to detention continue to be governed by section 241 of the Act. 
The grant of withholding or deferral is relevant, however, and the 
decision-maker may consider the grant of protection in reaching a 
custody determination.

Board Review and Procedural Safeguards

    Many commenters expressed concerns over the adequacy of procedural 
safeguards in the proposed rule and objected to the elimination of 
Board review of the Service's custody determinations. One commenter 
opined that the Board ensures consistency of decision making through 
publication of decisions and suggested that if Board review is 
eliminated by the final rule, then the Service should publish precedent 
decisions made available to the public to inform and bind decision-
makers in subsequent cases. Further, the commenter noted the 
regulations should specify that the decisions are binding on the 
district directors and the Headquarter Post-order Detention Unit 
(HQPDU). First, the law does not require independent review by the 
Board. See Marcello v. Bonds, 349 U.S. 302, 310 (1955). Second, the 
rule contemplates individualized determinations where each case must be 
reviewed on its particular facts and circumstances, and affords aliens 
periodic reconsideration in a non-adversarial process. Appropriate 
guidance to the public and the Service officers involved is provided by 
the rules themselves. Appropriate exercise of discretionary authority 
and consistency in decision making are further achieved by transferring 
the detention authority from the various district directors nationwide 
to the centralized HQPDU and provision for specially trained Service 
officers who will administer the program and make the periodic custody 
determinations. The Service concurs with the commenter who expressed 
concern over training issues and recommended that the Service staff 
should be trained by non-law enforcement personnel. One of the basic 
requirements for quality decision making is specific training of 
officers who will be making custody recommendations or determinations. 
The Service already has an on-going training program for Service 
officers who participate in Cuban Review Panels and that training 
program includes non-law enforcement trainers. Training is being 
provided to Service officers who will administer the program, and will 
be maintained and routinely monitored with the implementation of the 
final rule. The commenter also advocated that the final rule provide an 
enforcement mechanism if the established procedures are not followed, 
such as a complaint procedure to the Executive Associate Commissioner 
for Operations, or Director of the HQPDU. Nothing in the rule prevents 
the detainee from notifying the HQPDU Director of delays in the 
processing of the detainee's custody review. The Service must maintain 
some flexibility in scheduling reviews, but any unusual delays or other 
problems should be brought to the Director's attention.
    Several commenters expressed concern that the proposed rule does 
not give the alien a full opportunity to demonstrate why he or she 
should be released. The rule provides the alien the opportunity to 
submit advance documentation pertinent to consideration for release, 
and the alien has a full opportunity to supplement those materials 
during the panel interview. The panel will not proceed with or will 
interrupt an interview if it becomes apparent that the alien does not 
understand the proceedings. Further, the alien may advise the district 
director or HQPDU in advance of the scheduled review that he or she 
requests a translator, and, if appropriate, a competent interpreter 
will be provided.
    Representation at no expense to the government is in accord with 
statutory requirements at section 292 of the Act, 8 U.S.C. 1362. Far 
from discouraging the alien from obtaining assistance for a custody 
review, the rule makes reasonable provision for the alien to secure 
legal services or assistance of his or her choosing at no expense to 
the government. The Service will provide detainees with a list of 
available pro bono or low cost legal representatives who may assist the 
alien in the custody review process.

Independent Adjudicator

    The Service also received numerous comments that the district 
director and HQPDU custody reviews should be conducted by an 
independent adjudicator. Custody review procedures do not require an 
independent adjudicator. In Marcello, which dealt with deportation 
proceedings, the court noted that the fact that the special inquiry 
officer was subject to the supervision and control of Service officials 
charged with investigative and prosecuting functions did not so strip 
the hearing of fairness and impartiality as to make the procedure 
violative of due process. The court stated that: ``The contention is 
without substance when considered against the long-standing practice in 
deportation proceedings, judicially approved in numerous decisions in 
the federal courts, and against the special considerations applicable 
to deportation which the Congress may take into account in exercising 
its particularly broad discretion in immigration matters.'' 349 U.S. at 
311.

[[Page 80285]]

    As indicated, this rule is modeled after the Cuban Review Plan, at 
8 CFR 212.12, an analogous statutory and regulatory framework providing 
for the continued custody of excludable criminal aliens when, subject 
to periodic reconsideration, the Attorney General determines that 
release of such aliens would pose a danger to the community. The 
experience of the Cuban Review Plan concretely demonstrates that these 
procedures provide sound decision making for both the Government and 
the alien. Because the Cuban Review Plan's inception in April 1988, 
parole has been granted in over 7,000 cases (some of these may be the 
same individuals who are reparoled).
    Under the current post-order custody review procedures set forth in 
8 CFR 241.4 and the Pearson memorandum, approximately 6,200 aliens have 
been provided custody reviews by district directors during the period 
from February 1999 through mid-November 2000, to determine whether 
detention of the alien beyond the 90-day removal period is warranted. 
Of those aliens, approximately 3,380 were released.
    The Department has carefully considered the views of the 
commenters, and will retain the proposed procedures in the final rule.

Showing by the Alien

    The Service received numerous comments on the showing required of 
the alien under Sec. 241.4(d)(1). These commenters believed that the 
Government should bear the burden of demonstrating why the alien should 
not be released. In other words, there should be a presumption of 
release. Some commenters objected to the standard of ``to the 
satisfaction of the Attorney General'' as confusing and also objected 
to the language that the alien's release not present a danger to the 
``safety of other persons or to property.'' One commenter expressed the 
belief that this was a lesser standard than ``clear and convincing 
evidence'' and was therefore unacceptable.
    One commenter proposed language for Sec. 241.4(d)(1) based on a 
presumption in favor of release and no detention unless conditions 
identified in 18 U.S.C. 3142(c) cannot reasonably ensure the alien's 
appearance for removal and protect against dangers to the community, 
other persons, or property.
    A presumption in favor of release along the lines suggested by the 
commenters would be contrary to recent legislation. Through a series of 
enactments over the past 13 years, Congress has manifested a serious 
and growing concern regarding aliens subject to removal who abscond or 
commit additional crimes while released from custody. Numerous 
provisions of the Act, as recently amended, address this concern. See 
generally 63 FR 27441 (May 18, 1998) (reviewing enactments and 
legislative history). Moreover, removal proceedings are civil in 
nature, and the Supreme Court has held consistently and in a variety of 
contexts that criminal procedures and legal standards are not 
applicable to such proceedings.
    The language of section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), 
the current provision governing post-order detention, does not create 
any such presumption of release, nor does an alien enjoy a right to 
liberty on account of the unwillingness of his or her own or another 
government to accept him or her. See Gisbert v. Attorney General, 988 
F.2d 1437, 1443, 1447 (5th Cir.), amended, 997 F.2d 1122 (5th Cir. 
1993); Garcia-Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir. 1985).
    The fact that an alien has been released on parole from a criminal 
sentence, and has not committed any additional offenses while on 
parole, may be considered by the Service in determining whether an 
individual alien may be released, but these facts are not dispositive. 
For example, an alien's release from criminal custody may be based on 
the expiration of his or her sentence or other factors such as 
overcrowding in the penal facility and not related to the alien's 
dangerousness to the community.
    After full consideration of all pertinent comments, the Department 
will retain the required showing by the alien as provided in the 
proposed rule.

The Alien's Representative and His Role

    Several commenters felt that the alien's representative should have 
a more active role in the custody review process, including questioning 
the alien and making closing statements. It was also suggested that the 
panel interview should be modeled after asylum interviews pursuant to 8 
CFR 208.9(d). Nothing in the final rule prohibits the representative 
from speaking and assisting the alien or making a closing statement; 
however, the procedures are not formal or adversarial in nature, nor is 
this a criminal proceeding. The representative may be of assistance in 
bringing factors in support of the alien's request for release to the 
attention of the decision-maker that the alien may have neglected to 
mention and which may assist in explaining any documentation that 
requires clarification. However, the representative is an advocate and 
does not replace the need for the initial decision-maker to evaluate 
the demeanor and credibility of the alien. The decision-maker will 
evaluate the alien's suitability for release based on observation as 
well as other relevant circumstances. If the representative could 
fulfill this function, there would be no need for an interview of the 
alien. Certainly it is within the decision-maker's discretion to order 
the alien released after hearing from counsel and receiving any written 
documentation in support of release just as the decision-maker can 
order release after a records review. It is not required that the alien 
participate in an interview, the rule requires that the opportunity be 
afforded to the alien, however, the decision-maker may draw negative 
inferences from the alien's failure to participate. The Department 
finds that it is not necessary to formalize the interview process as 
has been done with the asylum regulations and will retain the 
supplemental rule language as written.
    A number of commenters objected to the language of 
Secs. 241.4(h)(2) and (i)(3)(ii) referencing the discretion of the 
panel or the institution to exclude an alien's representative. The 
Department will modify the language of this section with language 
similar to that suggested by one of the commenters. To address any 
security concerns the panel or institution may have in regard to a 
particular representative, the final rule will reflect that the alien 
may obtain assistance from a person of his or her choice subject to the 
panel's and institution's reasonable security concerns.
    One commenter also stated that assistance of counsel should be at 
no expense to the Service rather than at no expense to the Government. 
The Department has no authority to override the language of section 292 
of the Act, 8 U.S.C. 1362, or to authorize expenditures by other 
government components, and will make no modification to this section of 
the rule.

Interpreters and Record of Interviews

    Many commenters expressed the view that, at the alien's request, 
the Department should utilize professional interpreters only. One 
commenter added that interpreters should be utilized whenever one was 
used in the underlying criminal court case. The Department wishes to 
stress that wherever communication becomes problematic, the interview 
will be interrupted or postponed if necessary to secure competent 
translation. The panel members take notes during the interview process 
and are instructed

[[Page 80286]]

during their training to ensure that the alien understands the nature 
of the proceedings and has every opportunity to address the panel 
members and ask questions. Advance notification that the alien desires 
a translator will enable the decision-maker to investigate the 
necessity of securing the services of a qualified interpreter and will 
facilitate conducting the interview as scheduled.
    The Department declines to require a taped recording of the 
interview as some commenters urged. The district director (under 
Sec. 241.4(c)(1)) and the HQPDU Director (under Sec. 241.4(c)(3)) 
maintain appropriate files respecting each detained alien who is 
reviewed for possible release. The HQPDU panel members conducting an 
interview make contemporaneous notes of the interview, which are made 
part of the alien's A file. Similarly, when an alien is interviewed as 
part of the district director's custody review, any notes made of such 
interview are made part of the alien's A file. In addition, decision-
makers may rely on a variety of materials, including those from public 
records, the Executive Office for Immigration Review's administrative 
record, and from the alien and his family members and friends. As 
explained herein, access to the alien's A file is currently provided 
and that policy remains in effect. Also, as noted below, much of the 
information in an alien's A file is already in the detainee's 
possession or is a public record (such as a conviction), and a Freedom 
of Information Act (FOIA) request can be made for additional items. Any 
documentation the alien submits will become part of the A file, as does 
the written recommendation and decision.

Procedural Standards

    Some commenters observed that the proposed rule did not impose 
criminal standards on the custody procedures and suggested that the 
rule should mandate adherence to principles of criminal law. However, 
immigration proceedings are civil, not criminal, in nature and rules 
that are applicable to criminal cases are not so here. See INS v. 
Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984); Guti v. INS, 908 F.2d 
495, 496 (9th Cir. 1992) (per curiam) (holding Bail Reform Act 
inapplicable to immigration proceedings).
    Specifically, one commenter said that requiring responses from the 
alien during the panel interview, see Sec. 241.4(i)(4), denies the 
right against self-incrimination. It is up to the alien to demonstrate 
that he or she does not constitute a danger to the public safety or a 
flight risk. While responses are not required, if the alien chooses not 
to answer questions put to him or her, negative inferences may be drawn 
from the alien's silence. See Bilokumsky v. Tod, 263 U.S. 149, 153-54 
(1923).

The Decision Making Process

    Many commenters felt that Sec. 241.4(d) did not require 
sufficiently comprehensive decisions detailing how and why a decision 
to continue custody was made. Several commenters offered replacement 
language for this section. The Department will retain the language of 
the proposed rule that mirrors that of 8 CFR 212.12. A decision to 
continue custody under this rule must specify the reasons for the 
continued detention. A particular format is not required.
    Several commenters noted that the HQPDU Director should not be able 
to overrule a panel recommendation of release. One commenter expressed 
the view that the HQPDU be eliminated altogether. The Department will 
make no changes to the rule in this respect. The purpose of the HQPDU 
is to act as a reviewing authority. The HQPDU must have discretion to 
review the panel recommendation. This discretionary authority does not 
nullify the interview process as one commenter opined. Rather, the 
process gives the central reviewer crucial information about the alien 
that will provide a major focal point for the custody review. To ensure 
consistency, the HQPDU should be authorized to reverse a favorable as 
well as an unfavorable panel recommendation in the exercise of the 
Attorney General's discretion. The procedure of centralized review has 
been successfully used in the Cuban Review Plan. Experience with that 
program has demonstrated that the Headquarters decision sometimes 
overrules the recommendation below, whether that recommendation is in 
favor of release or continued detention.
    One commenter stated that the transfer of detention authority to 
the centralized unit would cause delays in the process. The final rule 
provides for periodic reviews at scheduled intervals. The Service will 
adhere to these timetables as provided in the final rule. Other 
commenters contend that the process has inherent bias as the 
composition of the panels is selected from Service professionals who 
are law enforcement personnel rather than social workers, probation 
officers, or mental health professionals. Decision making authority 
regarding custody has traditionally been entrusted to officers of the 
Service. The Supreme Court has long recognized the ability of Service 
officers to make immigration determinations, including custody 
determinations, and Service officers have long carried out this 
responsibility. The present rule is intended to draw upon significant, 
specialized expertise and experience within the Service, particularly 
from the Mariel Cuban program, to assist the Department in reaching 
sound, well-considered custody decisions. The Department believes that 
this rule will improve the quality and consistency of post-order 
custody decisions, and will retain the pertinent provisions as 
currently drafted.

District Director Responsibilities

    Several commenters stated that the district directors should be 
encouraged to interview the alien; that it is insufficient to rely on a 
records review that may not be complete. Under the final rule, the 
district director has the discretion to conduct a personal or 
telephonic interview.
    Further, under the final rule the alien has the opportunity to 
submit any documentation that he or she feels supports his or her 
request for release. In that way, any recent and probative material 
including rehabilitative efforts may be considered in conducting the 
custody review. Also, the recent conclusion of immigration proceedings 
should mean that the A file maintained by the Service on the alien 
contains the most recent information available. The Department will not 
mandate a personal or telephonic interview by the district director for 
the 90-day custody review. It is impracticable to require a district 
director to personally interview every alien detained within his or her 
district. The district director must delegate many duties to the 
officers working for him or her in order to ensure that tasks for which 
he or she is responsible are carried out properly and as expeditiously 
as possible. The final rule provides for an interview after the HQPDU 
has conducted a records review and has not made an initial 
determination to order the alien's release.

Travel Documents

    Some commenters expressed the view that whether or not the Service 
could obtain a travel document was either irrelevant or of minimal 
relevance to the issue of whether the alien was eligible for release. 
In addition, several commenters suggested that travel documents would 
have to be in the Service's actual possession in order to trigger an 
inquiry into further detention. The Department will not change the 
final rule based on these comments. The comments are contrary to the 
congressional goal, enacted into law, to ensure that aliens ordered 
removed from

[[Page 80287]]

the United States are available for prompt removal when travel 
documents are obtained. As indicated in the government's response to 
comments on the constitutionality of this rule and statutory 
interpretation, section 241(a)(6) of the Act grants the Attorney 
General specific authority to continue to detain an alien following the 
expiration of the removal period. An order of removal does not convert 
to a grant of admission or de facto admission because a foreign 
government delays or refuses to accept the return of one of its 
nationals. Similarly, an alien found deportable and ordered removed 
does not gain permission to remain in the United States simply because 
of the refusal of another country to admit the alien. Congress enacted 
the removal period at section 241(a) of the Act to facilitate the 
removal of criminal aliens, an objective of paramount importance. 
Detention has proven to be an effective enforcement tool in the removal 
of criminal aliens as nondetained aliens often fail to appear for 
pending immigration proceedings or removal after issuance of a final 
order. It is within the discretion of the Service to determine the 
likelihood of receipt of a travel document in the foreseeable future. A 
policy of automatic release pending the issuance of travel documents 
would thwart the intention of Congress that the Attorney General be 
vested with the discretion to detain certain aliens including those who 
pose a danger to the community or a risk of flight pending their 
removal. Such a policy could serve to encourage foreign governments to 
further delay or refuse to accept the return of their nationals if they 
expect the U.S. Government will release the alien. See Mezei, 345 U.S. 
at 216; Barrera, 44 F.3d at 1448.
    Two commenters felt that the proposed rule improperly penalizes 
aliens who fail to cooperate with the Service in seeking a travel 
document. Although the purposes of immigration detention are not 
punitive, we wish to emphasize that cooperation in obtaining a travel 
document is required by law, and that failure of an alien subject to a 
final removal order to cooperate with the Service in obtaining a travel 
document is a felony punishable by imprisonment of four to ten years. 
See section 243(a)(1)(D) of the Act, 8 U.S.C. 1253(a)(1)(D) (Supp. IV 
1998). An alien who fails or refuses to cooperate in obtaining a travel 
document not only engages in criminal conduct, but also helps to bring 
about the very condition he or she complains of--i.e., prolonged 
detention--by that criminal conduct. Moreover, the Act specifically 
provides for detention in the event that an alien subject to a final 
removal order fails or refuses to cooperate in obtaining a travel 
document. See section 241(a)(1)(C) of the Act, 8 U.S.C. 1231(a)(1)(C) 
(Supp. IV 1998). These provisions manifest a clear congressional policy 
with regard to cooperation in obtaining travel documents. The 
Department believes the rule as presently drafted is both consistent 
with this congressional policy and reasonable in allowing for 
consideration of the alien's cooperation and compliance with the law. 
The pertinent provisions will be retained without modification.

Criteria for Release

    The Department received several comments objecting to the criteria 
specified in Sec. 241.4(e) because they differ from the statutory 
criteria. Other commenters found it confusing to require two separate 
findings regarding risk to the community and opined that the focus of 
inquiry should be on prospective behavior in the community. Some 
commenters found this section gave too much discretion to the decision-
maker whereas another felt there was too little discretion. The 
criteria in this section are consistent with the Mariel Cuban parole 
regulation at 8 CFR 212.12 and will assist the decision-maker in 
identifying and evaluating factors relevant to the exercise of 
discretion regarding continuation of custody. The criteria set out in 
Sec. 241.4(e) provide essential guidance to the decision-maker in 
assessing future risk to the community. In making this determination, 
both past and present behavior are relevant. Restricting the custody 
review inquiry to behavior subsequent to the alien's release from 
incarceration or from the time of detention in Service custody would 
place unacceptable limitations on the decision-maker's ability to fully 
review the circumstances of an alien's case in making a custody 
decision.
    One commenter suggested additional language for the end of 
Sec. 241.4(e)(1) (suggested change in italics): ``* * * immediate 
removal, while proper, is otherwise not practicable or not in the 
public interest, or potentially detrimental to the health or well being 
of the alien.'' The humanitarian concerns expressed by the commenter 
are encompassed within the rule's current language of ``not practicable 
or not in the public interest'' and additional language is not 
necessary. The Service has the discretion to release a detainee or even 
to delay removal for humanitarian reasons.
    One commenter suggested that the criteria of Sec. 241.4(e)(3) that 
``the detainee is likely to remain nonviolent'' be replaced with the 
detainee has expressed an intent to remain nonviolent. The Department 
believes that the proposed rule correctly captures the relevant 
inquiry. An expression of intent to refrain from violence, though 
potentially relevant to a release determination, is not in itself 
necessarily determinative or even persuasive. Indeed, one of the aims 
of the process is to assess the detainee's credibility regarding 
rehabilitation. The language of the proposed rule will be retained, 
therefore, without modification.

Factors for Consideration

    Several comments expressed the view that the commission of 
disciplinary infractions should not preclude a finding that the alien 
is not a risk to the community. Other commenters felt that their 
commission should be afforded minimal weight in the risk assessment 
because of disparity in detention standards and requirements, constant 
transfers, and language barriers. There is nothing in the rule that 
prohibits release in a case where the alien has been involved in the 
commission of disciplinary infractions. Disciplinary infractions 
represent one of several factors that are to be considered and afforded 
appropriate weight in making a recommendation or decision. Some 
infractions are more serious than others and will be weighed as 
warranted by the circumstances in each case. As a general matter, 
however, disciplinary infractions are relevant to danger to the 
community, because they reflect the alien's present ability to follow 
rules, respect the rights of others, and act appropriately on his or 
her own if released into a less structured environment.
    The Department received some comments stating that consideration of 
the detainee's criminal conduct and other criminal history was too 
broad an inquiry because it allows consideration of unverified charges 
not resulting in a criminal conviction. However, under the immigration 
law, grounds of removability may include criminal conduct that does not 
result from a criminal conviction. Because such conduct is sufficient 
to support a finding of removability from the United States, it may 
also be considered for detention purposes. Consideration of criminal 
history is probative of the threat to the community posed by the 
alien's potential release. It is relevant to consider the alien's 
entire criminal history although the weight given to each factor will 
vary according to the individual facts and circumstances of a

[[Page 80288]]

particular case. The rule adequately provides, without additional 
specificity, for consideration of the nature and severity of the 
convictions, factors in mitigation of a criminal sentence, the sentence 
imposed, state parole findings, probation, and other criminal history. 
Moreover, to the extent that non conviction criminal history 
information may exist, the decision-maker can make clarifying inquiries 
with the alien or the alien's representative, as appropriate, and can 
give criminal history information whatever weight is appropriate in 
light of the information available.
    Commenters suggested that the body of the rule as well as the 
supplemental information section should state that no negative 
inference will be made from non-participation in rehabilitation 
programs if such programs are not available in the facility where the 
alien is housed. Some commenters wanted the body of the rule to add 
that (1) barriers to participation include long waiting lists, waiting 
periods for new detainees, and the unavailability of some programs to 
detainees, and (2) that program availability at state and local 
institutions prior to Service detention may be considered.
    The Department understands the concerns reflected in these 
comments, but does not believe that a change in the regulatory text is 
necessary or appropriate to address them. The relevance of 
nonparticipation in rehabilitative programs is a proper subject of 
internal training. It is not necessary, therefore, to reinforce this 
message through an alteration of regulatory text. Moreover, detainees 
seeking release are free to submit materials indicating the 
impossibility or difficulty of enrolling in rehabilitative programs if 
they wish.
    Two commenters felt that the rule should specify the nature of 
participation in rehabilitation programs, freedom from disciplinary 
infractions, and other indicia of commitment to good conduct required 
to secure the alien's release, particularly after commission of violent 
crimes. In other words, these commenters invite the Department to 
specify criteria the satisfaction of which would require release from 
custody.
    In general, the custody review determination involves highly 
individualized case reviews for which mandatory release pursuant to 
pre-established formulas would not be appropriate. Rather, the 
Department prefers an approach based on the consideration of factors 
included in the rule instead of mandatory criteria. The regulation 
cannot cover every conceivable circumstance and provide enough 
flexibility to accommodate multiple issues considered in the exercise 
of discretion under section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). 
To avoid what the commenter terms ``rubber stamp denials,'' the listed 
factors and other pertinent information will be evaluated in relation 
to the alien's character, and ability to adjust in the community. The 
Department declines to change the rule based on this comment.
    Similarly, the Department received numerous comments stating that 
the only factors that should be considered are the enumerated ones and 
that no single factor should be weighed so as to exclude all others. 
The Department declines to make any changes to the final rule based on 
these comments. Maintaining flexibility is essential to the exercise of 
discretion. The decision-maker may weigh the same factors differently 
depending on the circumstances of the individual case. Further, the 
list of factors for consideration provides a guideline (not an 
exclusive list) for the decision-maker to utilize in reaching a custody 
determination. If other relevant circumstances are present in a 
particular case, the decision-maker must be free to consider them. 
Several commenters suggested that favorable factors should be set out 
with more specificity in the rule, including prospects for employment, 
community care placement opportunities, ties to clergy or community 
organizations, and sponsorship. Such specificity is not needed in the 
final rule because the rule already addresses sponsorship and provides 
for consideration of community ties and other factors whether favorable 
or unfavorable.
    Several commenters suggested that the body of the final rule state 
that there is no presumption of dangerousness due to the existence of a 
criminal record. The decision-maker's responsibility is to weigh the 
severity and circumstances of the criminal conduct along with other 
material considerations, whether favorable or unfavorable, in making a 
custody determination. The Department will not mandate a result either 
for release or detention based on the presence or lack of a particular 
factor for consideration. As discussed above, it is up to the alien 
ordered removed to demonstrate a lack of danger to the community and 
flight risk upon release.
    Other commenters suggested that only immigration violations 
relevant to flight risk should be considered and only willful failures 
to appear. Failure to appear for probation appointments, court 
hearings, and other mandated proceedings is highly probative of flight 
risk. As with any other factor, the specific circumstances surrounding 
the failure to appear will determine how much weight the decision-maker 
gives it. It is unnecessary to amend the final rule and address this 
with more specificity.
    Two commenters wanted to add as a factor for consideration the 
length of time the detainee has been in immigration custody. The final 
rule does not exclude this factor, if relevant, from the decision-
maker's consideration, but an explicit mention of this has not been 
included in the rule.
    One commenter suggested that favorable factors such as ties to the 
United States and availability of work or other programs should not be 
considered because removable aliens may be deported from this country 
without regard to such considerations. The Department will not change 
the final rule based on this comment. The crux of this program is to 
make a custody determination based on an analysis and weighing of 
factors that may permit the alien's release into the community until 
such time as his or her removal can be effected. Ties to the community, 
work opportunities, and rehabilitative programs are relevant to making 
a custody determination.
    Several commenters suggested the addition of a factor to be weighed 
heavily in favor of the alien: that the alien cannot be returned to his 
or her country of origin. Although nothing in the rule prevents a 
decision-maker from considering such a circumstance in rendering a 
custody decision, the overriding concerns of the rule are public safety 
and flight risk, and the likelihood of the alien's successful 
reintegration into the community pending removal. The Department feels 
that the list of discretionary factors properly focuses on these 
issues, but leaves decision-makers with broad discretion to consider 
other circumstances as may be appropriate in each case. Therefore, the 
text of the rule will not be modified.

Sponsorship

    Several commenters believed that the sponsorship provision should 
be deleted or modified. The suggested language authorizes the district 
director or Executive Associate Commissioner, in the exercise of 
discretion, to condition release on the detainee's having a sponsor or 
participating in an approved halfway house or mental health or 
community project, whether residential or not. The language of the rule 
is sufficiently broad to allow the decision-maker to consider a wide 
range

[[Page 80289]]

of sponsorship possibilities. Given that sponsorship is a permissive 
rather than a mandatory condition of release, the Department will not 
expand the language of Sec. 241.4(j)(2).
    One commenter suggested that the rule should encourage employment 
authorization and mandate a grant or denial decision within 30 days of 
application. Such specificity is not required in the final rule. As 
with other provisions of the final rule, each case will receive 
individual consideration. The Service will make decisions on work 
authorization as expeditiously as possible. It was also suggested that 
the rule should authorize the presence of the sponsor at the panel 
interview. The Department has no objection to the sponsor's being 
selected as the alien's representative, subject to the security 
concerns of the panel or institution. If the alien desires the presence 
of his or her sponsor in addition to the presence of counsel or other 
representative, the alien must make advance arrangements with the panel 
and the facility.

Release or Order of Supervision

    One commenter asked whether the release of an inadmissible alien 
constitutes a release on parole pursuant to section 212(d)(5) of the 
Act, 8 U.S.C. 1182(d)(5), and 8 CFR 212.5(d)(2)(i) or under an order of 
supervision pursuant to section 241(a)(3) of the Act, 8 U.S.C. 
1231(a)(3), and 8 CFR 241.5. Reference to the parole statute and 
regulations is correct and will not be revised. An alien who has been 
denied admission to the United States continues to be an applicant for 
admission and pending removal is subject to release in accordance with 
the Attorney General's parole authority both before and after a final 
order of exclusion or removal on grounds of inadmissibility. See, e.g., 
Leng May Ma v. Barber, 357 U.S. 185, 188 (1958); Palma v. Verdeyen, 676 
F.2d 100, 103 (4th Cir. 1982); see also sections 101(a)(13) and 
212(d)(5) of the Act, 8 U.S.C. 1101 (a)(13), 8 U.S.C. 1182(d)(5)(A); 8 
CFR 212.12. As in the Mariel Cuban program at 8 CFR 212.12, the 
Attorney General may impose a reporting requirement or other conditions 
of release in the case of an inadmissible alien who is detained 
pursuant to section 241(a)(6) of the Act and approved for parole.

Frequency and Timing of Reviews

    Numerous commenters objected to the change from review of custody 
status every six months under the Pearson memoranda to annual reviews. 
The Department has fully considered this issue and will retain the 
annual review structure. The final rule is modeled after the Cuban 
Review Plan, which also operates on an annual review schedule. The 
Pearson reviews were structured on an interim basis until more 
permanent procedures could be put in place. The final rule will allow 
sufficient time between reviews for interview scheduling and compiling 
of the materials for review. Further, interim reviews are not 
foreclosed by the annually scheduled custody review. Under 
Sec. 241.4(k)(2)(iii), the HQPDU will respond to the alien's written 
request for release based on a showing of a material change in 
circumstances since the last annual review. One commenter asked why 
there were no sanctions in the rule if a review is late. The remedy if 
a review is late is a full review as soon as possible. The Department 
must preserve flexibility for redeployment of Service staff for 
national immigration emergencies or other mandates requiring immediate 
attention. Extreme weather conditions, or other transportation problems 
may delay a panel's visit to a particular facility. A panel member's 
illness or other personal emergency, a prison lock-down situation, or 
the alien's transfer to another facility are some other reasons that 
interviews might be delayed.
    Several commenters objected to Sec. 241.4(k)(3) of the rule 
allowing for suspension of reviews for removal or good cause. Other 
commenters urged that this section provide for notice and a right of 
appeal. The Department will retain this section in the rule as written. 
This section is essential for administration of the program and in 
furtherance of removal where practicable. Release under section 
241(a)(6) of the Act is a privilege and can be revoked. As provided in 
the rule, if further review is appropriate after suspension, it will be 
rescheduled. Any administrative appeal and hearing would only delay the 
review further and would be inappropriate in cases where prompt removal 
is practicable.
    Several commenters suggested that transfer of detention authority 
from the district director to the HQPDU should occur upon expiration of 
the removal period. The Department will retain the rule provisions 
regarding transfer as written. The rule provides for an orderly 
transfer of authority and fully sets out the procedures for automatic, 
periodic review.
    One commenter noted that the rule is a tremendous improvement in 
providing for meaningful and periodic reviews. The balance of comments 
pertaining to Sec. 241.4(k) concern requiring mandatory deadlines for 
conducting custody reviews, writing decisions, and serving them on the 
alien. The Department will not make any changes to the final rule as a 
result of these comments. As indicated in previous responses, the 
Service must maintain flexibility for allocation of resources and for 
working cooperatively with other federal agencies as well as state and 
local authorities. The Service is obligated to make every reasonable 
effort to ensure that reviews are held timely and professionally.

Interim Reviews

    Two commenters suggested revision of Sec. 241.4(k)(2)(iii) to allow 
for quarterly interim reviews at the alien's request without 
restriction. The Department understands the commenters' concerns; 
however, implementing such a program would severely strain Service 
resources, which do not permit more frequent reviews without cause. The 
Service would scarcely have completed a review before it would be time 
to begin another. Frequent re-review of the same facts without any 
change in circumstances in support of release would merely serve to 
misdirect Service resources that otherwise could be more usefully 
employed and would result in delay of reviews in other cases. The 
Department disagrees with the comment that circumstances cannot change 
because the alien is detained. For example, an appropriate sponsor 
might be located, the alien might receive an employment offer, remain 
incident free, or become eligible for or successfully complete 
rehabilitative programs that might influence the decision-maker to 
approve release.

Notice and File Access

    Some commenters requested that the notification of custody review 
be extended to 45 or 60 days prior to the review. The Department 
declines to extend this notification period. If the alien requires 
additional time to prepare for a custody review, it may be granted in 
accordance with the provisions of the final rule. The Department agrees 
with the commenter who suggests that the alien be given the address of 
the HQPDU. That information will be supplied to the alien with written 
notification of the Headquarters custody review.
    Some commenters felt that Sec. 241.4(h)(4) should specifically 
advise the alien if the district director is retaining jurisdiction 
over the case for the additional three-month period, rather than 
referring the case to the HQPDU at the expiration of the 90-day removal 
period. The structure of the final rule permits the district director 
flexibility in determining what options are available to him or her 
during the

[[Page 80290]]

initial period when the Service has assumed physical custody over the 
alien. During this additional three-month period, the district director 
may be able to execute the removal order, may order the alien's release 
pending removal, or may refer the case to the HQPDU for further review. 
The rule's notice requirements advise the alien of the results of the 
90-day review while maintaining the district director's flexibility to 
determine what further action the case requires.
    Numerous commenters requested full disclosure to the detainee and 
the representative of the alien's A file and the file of the detention 
facility. Others requested copies of all documents relied on by the 
Service at the custody review. Access to the alien A file will be 
provided to the detainee and the representative in accordance with 
current Service policy and practice as developed under the Cuban Review 
Plan, and subject to limited exceptions such as the identities of 
confidential informants, law enforcement personnel, and documents that 
cannot be released because the information therein would adversely 
effect an ongoing investigation.
    Because access to the A file is provided, the Service will not 
provide copies as a matter of course. In any event, much of the 
information in the A file is already in the detainee's possession as it 
was originally obtained from the detainee or is a public record (such 
as conviction documents). A FOIA request can be made for additional 
items. The detainee or representative must make arrangements for access 
to files of the detention facility from the custodian of those records 
in advance of when the party wishes to review them. The Service is not 
the custodian of files maintained by a non-Service detention facility 
and has no authority to grant or deny access to such files.
    One commenter proposed language changes to the provisions 
concerning service of notices and decisions to the alien and the 
representative of record. The Department will not change the wording of 
Secs. 241.4(d)(2) or (d)(3). Section 241.4(d)(3) adequately ensures 
that the representative of record will receive a copy of any notice or 
decision.
    One commenter requested that the notice required by 
Sec. 241.4(h)(2) for the district director's 90-day review advise the 
alien of the criteria of Sec. 241.4(e) and the factors in 
Sec. 241.4(f). The Department will adopt this recommendation. The 
notice of a district director or HQPDU custody review will advise the 
alien of the criteria of Sec. 241.4(e) (conclusions that must be drawn 
by the decision-maker before approving a release) and factors in 
Sec. 241.4(f) to assist the alien in preparing for the review. A notice 
of custody review, whether by the district director or the HQPDU, will 
briefly advise the alien of the review procedures and display the 
correct address for submission of any documents. For a more detailed 
explanation of review procedures, the detainee may consult the final 
rule.
    The Department will not accept the recommendation of a commenter to 
amend the language of Sec. 241.4(h)(2) so that the alien's request for 
additional time to submit documentation to the district director 
extends the time for conducting the custody review only until the 
additional information has been received. The custody review will be 
conducted as promptly as scheduling permits.

Withdrawal of Release Approval/Revocation

    One commenter objected to Sec. 241.4(l)(2) (Determination by the 
Service). Other commenters recommended limiting Sec. 241.4(j)(4) 
(Withdrawal of release approval) to cases where removal is practicable 
or there is a material change in the detainee's conduct, indicating he 
poses a risk to the community. Commenters also requested written notice 
of withdrawal of release approval and provisions for a hearing process. 
Upon revocation, commenters suggested that the next review be conducted 
within 3 months. Depending on the circumstances of a particular case, 
revocation or withdrawal of release authorization under section 
241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), may be appropriate for any 
of the reasons listed in section 241.4(l)(2) of the rule, including the 
alien's violation of a condition of release. Cf. section 243 of the 
Act, 8 U.S.C. 1253(b) (authorizing criminal sanctions for violation of 
release conditions). Section 241.4(l)(1) of the rule provides that, 
upon revocation, the alien will be provided notice of the reasons for 
the revocation. In addition, the rule is being modified to provide that 
the alien will be afforded an initial informal interview promptly after 
his return to Service custody to provide the alien an opportunity to 
respond to the reasons for the revocation. The rule currently provides 
at Sec. 241.4(l)(3) for a full custody review, including an interview, 
to be conducted within three months of the revocation of release. The 
rule is being modified to clarify that the custody review will include 
a final evaluation of any contested facts relevant to the revocation 
and a determination whether the facts as determined warrant revocation 
and further denial of release.

Recordkeeping, Reporting, and Ombudsman

    Several commenters stated that the district director should forward 
all documents submitted by the alien to the HQPDU. The Department 
agrees with this recommendation. The alien's submissions will be 
included in the HQPDU custody review file.
    Several commenters endorsed a recommendation that the Service 
compile statistics on nationality, length and place of detention, and 
dates of review, and that these statistics be made available for 
independent review. The Service will maintain statistics on the 
detained post-order population. Such statistics may be available 
through authorized pre-existing procedures. The Department declines to 
appoint a separate ombudsman to oversee the implementation of the 
program and keep statistics. The Service has a Headquarters managerial 
position in the Detention and Removals Branch that fulfills the 
functions of an ombudsman.

Courts

    Some commenters wanted the rule to permit federal court stays. See 
8 CFR 241.6 (Administrative stay of removal). This rule concerns the 
delegation and exercise of powers by the Attorney General, not the 
courts. Thus, the rule will not be modified to account for judicial 
stays.

Executive Orders

    One commenter predicted that the rule will prolong litigation with 
a corresponding increase in costs if promulgated. The commenter also 
noted the Government's litigation and detention costs. These comments 
concern policy determinations made by Congress, which sets immigration 
policy and passes legislation allocating expenditures within the 
federal budget. This is not an executive or judicial function.
    This commenter also stated that the rule affects the relationship 
between the states and the federal government by nullifying prior 
determinations (to release) by state court judges, probation officers, 
prison authorities, and parole administrators. The commenter stated 
that the rule requires a federalism summary impact statement. The 
Department disagrees with the need for an impact statement. States have 
no authority to regulate immigration. This function is solely within 
the province of the federal government. This rule concerns civil 
immigration, not criminal law. The statutes and policies being

[[Page 80291]]

implemented by state courts, probation and parole departments, and 
penal authorities' release determinations are based on different goals 
and responsibilities than those that govern a release or detention 
decision affecting an alien under a final order of removal. For 
example, release from a term of imprisonment is mandated when an 
individual has been sentenced for commission of a criminal offense and 
that sentence has been served. There is no authority to detain the 
individual longer under that criminal sentence. Also, a particular 
sentence may be mandated by statute irrespective of the risk that the 
criminal poses to the community upon release. This is exemplified in 
``truth-in-sentencing'' jurisdictions. There have also been various 
instances where a court order mandates the release of criminals because 
of prison overcrowding. Thus, the Department believes that no impact 
study is required.

Venue for Panel Reviews

    Two commenters stated that panel reviews should be conducted at 
district processing centers to allow attorney representatives and 
family to attend. The Department cannot implement this suggestion. The 
rule already permits the attendance of the attorney representative. 
Panel interviews will be conducted at the facility where the alien is 
detained. Moving detainees for interviews would involve significant 
additional expenditures and security concerns that would detract from 
the expeditious and efficient operation of the program.

Transition Provisions

    The Department will retain the transition provisions as written. 
Two commenters requested that transitional cases receive an interview 
irrespective of whether the last review was a records review or 
included an interview and that the reviews should be held more 
frequently than specified in the rule. The transition provisions of the 
rule more closely mirror the permanent procedures than do the 
commenters' suggestions, which in timing resemble the interim Pearson 
provisions. The provisions allow the Service to give full consideration 
to cases that have not yet received any review and advance equal 
treatment of all cases more expeditiously than the commenters' 
proposal.

Vera Institute of Justice Study

    A commenter noted that the proposed rule did not mention the Vera 
Institute of Justice study recommending alternatives to detention for 
aliens ordered removed. The Service recently received the final report 
of the Vera Institute Appearance Assistance Program, and is currently 
reviewing it. The Service agrees that there is potential for use of the 
processes and information from the study in the area of detention of 
aliens with final removal orders. The Service intends to establish 
additional pilot projects in several districts in the next year. The 
projects may include contract or governmental personnel and will test 
various levels of supervision. Supervised release of post-order 
detainees will be examined in some of the test sites. These projects 
may involve halfway houses or other support and rehabilitation programs 
to prepare detainees for release or for future consideration.
    Several commenters suggested deletion of the language in the 
supplementary information addressing foreign and domestic affairs, 
availability of resources, public policy, and humanitarian concerns. 
The Attorney General must be able to take these factors into account 
and assess their impact on individual and institutional decision 
making. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999).

Who Is Covered Under This Final Rule?

    This rule establishes a permanent review procedure applying to 
aliens who are detained following expiration of the 90-day removal 
period. It also applies to aliens released under the provisions of the 
final rule upon a finding that they do not constitute a risk to the 
community or a flight risk. The Attorney General is authorized to 
detain these aliens beyond the removal period consistent with section 
241(a)(6) of the Act, 8 U.S.C. 1231(a)(6). This permanent review 
procedure governs all post-order custody reviews inclusive of aliens 
who are the subjects of a final order of removal, deportation, or 
exclusion, with the exception of inadmissible 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 final rule, the district director maintains the 
responsibility for the initial custody review when the alien's 
immediate removal 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 records review. In most cases, it will 
be unnecessary for the district director to undertake a personal 
interview because the alien's immigration proceedings have recently 
concluded, and his or her records are therefore up-to-date. 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 removal 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 removal, the district director's 
authority to reconsider an alien's custody status may be extended for 
an additional period of up to three months after expiration of the 
removal period. The additional three-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 three-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 removed or released from detention, 
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 three-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

[[Page 80292]]

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 records review for each alien previously ordered detained by 
the district director. If the records 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 the alien 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 decision declining 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 removed 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 
Mariel Cuban parole panel) rather than the more formal rules regarding 
attorney representatives at 8 CFR 292.1. Both 8 CFR 212.12 and this 
final 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 a 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 records 
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 a copy of all notices and 
decisions 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 
should 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. 
The alien will be afforded an initial informal interview promptly after 
his or her return to Service custody to afford the alien an opportunity 
to respond to the reasons stated in the notice. A full custody review, 
including an interview, will be conducted within three months of the 
revocation of release and will include a final evaluation of any 
contested facts relevant to the revocation, and a determination whether 
the facts as determined warrant revocation and further denial of 
release.
    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 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) of the Act 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,

[[Page 80293]]

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 Does This Rule Make?

    This rule terminates 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). Because these 
aliens have final orders of removal, all legal issues involving 
removability (and any 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.
    This 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 custody status.
    Accordingly, in order to implement a single comprehensive review 
process for post-order custody cases, this 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 December 21, 2000 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 rule 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 December 21, 2000 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 8 CFR 
212.13. 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 this rule.

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 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 Removals, 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 promptly. 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 a removable alien to be 
released within the United States pending resolution of the underlying 
action or event. Aliens whose removal is withheld under 8 CFR 208.16 or 
deferred under 8 CFR 208.17 may be considered for release.

Will There Be Special Release Conditions Under This 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, and 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 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 removal. See, 
e.g., Fernandez-Roque v. Smith, 734 F.2d 576, 583 (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.

Effective Date of this Final Rule

    The Department's implementation of this final rule effective upon 
publication in the Federal Register is based upon the ``good cause'' 
exception found at 5 U.S.C. 553(d)(3). The Pearson reviews were 
intended for interim use only; through this rule, the agency has now 
adopted permanent and more comprehensive procedures for post-order 
detainees. Implementation upon publication affords both the Government 
and detainees the benefits of the new procedures as soon as possible. 
Delaying the effective date of this rule would be contrary to the 
public interest.

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

[[Page 80294]]

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 certain 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, 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 rule 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 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. Revising the phrase ``Except as provided in Sec. 212.13, the 
authority'' to read ``The authority'' in paragraph (b) introductory 
text; and by
    b. Removing the word ``either'' and removing the phrase ``or 
Sec. 212.13, whichever is later'' in paragraph (g)(2).


Sec. 212.13  [Removed]

    4. Remove section 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 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1223, 1227, 1231, 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 his or her 
designee, the Executive Associate Commissioner Field Operations 
(Executive Associate Commissioner) 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 ordered removed 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, 104 Stat. 
4978, 5048 (codified at 8 U.S.C. 1226(e)(1) through (e)(3)(1994));
    (2) An alien ordered removed who is removable under section 
237(a)(1)(C) of the Act;
    (3) An alien ordered removed 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, Div. C of Public Law 104-208, 110 Stat. 
3009-546; and
    (4) An alien ordered removed who the decision-maker determines is 
unlikely to comply with the removal order or is a risk to the 
community.

[[Page 80295]]

    (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 inadmissible Mariel Cuban who is being 
detained by the Service pending an exclusion or removal proceeding, or 
following entry of a final exclusion 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.
    (3) Individuals granted withholding or deferral of removal. Aliens 
granted withholding of removal under section 241(b)(3) of the Act or 
withholding or deferral of removal under the Convention Against Torture 
who are otherwise subject to detention are subject to the provisions of 
this part 241. Individuals subject to a termination of deferral hearing 
under 8 CFR 208.17(d) remain subject to the provisions of this part 241 
throughout the termination process.
    (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 three-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 removed by 
the expiration of the three-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.
    (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 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 if released;
    (4) The detainee is not likely to pose a threat to the community 
following release;
    (5) The detainee is not likely to violate the conditions of 
release; and
    (6) The detainee does not pose a significant flight risk if 
released.
    (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

[[Page 80296]]

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 immigration 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--
    (i) Adjust to life in a community,
    (ii) Engage in future acts of violence,
    (iii) Engage in future criminal activity,
    (iv) Pose a danger to the safety of himself or herself or to other 
persons or to property, or
    (v) 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 if the alien fails 
or refuses to cooperate in the process of obtaining a travel document. 
See, e.g., section 241(a)(1)(C) of the Act.
    (h) District director's custody review procedures. The district 
director's custody determination will be developed in accordance with 
the following procedures:
    (1) Records 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 records 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 
records 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 reasonable security concerns at 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 
records 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 continued in detention pending removal 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) Records review. Initially, and at the beginning of each 
subsequent review, the HQPDU Director or a Review Panel shall review 
the alien's records. Upon completion of this records 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 records 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 reasonable security concerns at the 
institution's and 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

[[Page 80297]]

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 
section.
    (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 custody review materials 
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 shall 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 8 CFR 212.5(c) 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 the exercise of 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 the exercise of 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 during 
the 90-day period because no country currently 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 removal or further 
review of his or her custody status.
    (ii) When release is denied pending the alien's removal, the 
district director in his or her discretion may retain responsibility 
for custody determinations for up to three 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 three-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 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 removal or further custody review, and the alien is not removed 
within three 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 three-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 decision by the Executive Associate Commissioner declining 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 removal is practicable and proper, or 
for other good cause. The decision and reasons for the delay shall be 
documented in the alien's custody review file or A file, as 
appropriate. Reasonable care will be exercised to ensure 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

[[Page 80298]]

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; Review of Long-term Detainees, October 
22, 1999, was a records review and the alien remains in custody, the 
HQPDU will conduct a custody review within six months of that review 
(Memoranda available at http://www.ins.usdoj.gov). 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 December 21, 2000 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 paragraph (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. The alien will be afforded 
an initial informal interview promptly after his or her return to 
Service custody to afford the alien an opportunity to respond to the 
reasons for revocation stated in the notification.
    (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 alien, or any other circumstance, indicates 
that release would no longer be appropriate.
    (3) Timing of review when release is revoked. If the alien is not 
released from custody following the informal interview provided for in 
paragraph (l)(1) of this section, 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 
records review and scheduling of an interview, which will ordinarily be 
expected to occur within approximately three months after release is 
revoked. That custody review will include a final evaluation of any 
contested facts relevant to the revocation and a determination whether 
the facts as determined warrant revocation and further denial of 
release. 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 listed in 8 CFR 212.5 
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 
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 previously filed 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: December 15, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-32432 Filed 12-18-00; 2:38 pm]
BILLING CODE 4410-10-P