[Federal Register Volume 66, Number 142 (Tuesday, July 24, 2001)]
[Notices]
[Pages 38433-38434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18549]


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DEPARTMENT OF JUSTICE


Notice of Memorandum

AGENCY: Department of Justice.

ACTION: Notice.

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SUMMARY: This Notice consist of a Memorandum from the Attorney General 
to the Acting Commissioner of the Immigration and Naturalization 
Service (INS) concerning detention of certain aliens held under final 
orders of removal. The Memorandum directs the INS to take a number of 
actions in response to the decision of the U.S. Supreme Court In 
Zadvydas v. Davis, 533 U.S. __, 121 S.Ct. 2491 (June 28, 2001). It 
directs the INS to present the Attorney General with regulations by 
July 31, 2001 that set forth a precedence for such aliens to present a 
claim that they should be released from detention because there is no 
significant likelihood that they will be removed in the reasonably 
foreseeable future. The regulations are also to address continued 
detention for aliens presenting special circumstances of the sort 
identified by the Court in Zadvydas, such as terrorists or other 
especially dangerous individuals. Until those regulations are 
published, the Memorandum directs the INS to: (1) Immediately renew 
efforts to remove aliens in post-order detention, placing special 
emphasis on aliens who have been detained the longest; (2) 
expeditiously conclude its ongoing file review for all aliens who have 
remained in post-order detention for 90 days or more, with priority 
given to those cases in which the aliens have been detained longest; as 
part of that review, the INS shall immediately begin accepting 
requests, submitted in writing, by detained aliens who contend that 
there is no significant likelihood of their removal in the reasonably 
foreseeable future; (3) respond in writing, as expeditiously as 
possible, to any such written submission, prioritizing the cases of 
aliens who have been detained longest; and (4) make sure that no alien 
who has previously been determined under existing procedures in 8 CFR 
241.4 to pose a danger to the community will be released until his or 
her case has been processed through the INS review and the INS has made 
a determination, based on available information, that there is no 
significant likelihood of the alien's removal in the reasonably 
foreseeable future. The Memorandum also directs the INS to collect 
certain relevant data, to confer with the Department of State 
concerning improving repatriation procedures, and to refer for 
prosecution cases involving violations of 8 U.S.C. 1253.

FOR FURTHER INFORMATION CONTACT: Stuart Levey, Associate Deputy 
Attorney General, U.S. Department of Justice, Room 4615, 950 
Pennsylvania Ave., NW., Washington, DC 20530, (202) 514-2000.

Stuart Levey,
Associate Deputy Attorney General.

Office of the Attorney General

Washington, DC 20530

July 19, 2001
Memorandum
To: Acting Commissioner, Immigration and Naturalization Service
From: John Ashcroft, the Attorney General
Subject: Post-Order custody review after Zadvydas v. Davis
    The Supreme Court held in Zadvydas v. Davis, 533 U.S. __, 121 S. 
Ct. 2491 (June 28, 2001), that Sec. 241(a)(6) of the Immigration and 
Nationality Act (INA), read in light of due process protections for 
aliens who have been admitted into the United States, generally 
permits the detention of such an alien under a final order of 
removal only for a period reasonably necessary to bring about that 
alien's removal from the United States. The Supreme Court held that 
detention of such an alien beyond the statutory removal period, for 
up to six months after the removal order becomes final, is 
``presumptively reasonable.'' After six months, if an alien can 
provide ``good reason to believe that there is no significant 
likelihood of removal in the reasonably foreseeable future,'' the 
government must rebut the alien's showing in order to continue the 
alien in detention. Finally, the Supreme Court indicated that there 
may be cases involving ``special circumstances,'' such as terrorists 
or other especially dangerous individuals, in which continued 
detention may be appropriate even if removal is unlikely in the 
reasonably foreseeable future.
    The Supreme's Court's ruling will inevitably result in anomalies 
in which individuals who have committed violent crimes will be 
released from detention simply because their country of origin 
refuses to live up to its obligations under international law. 
Nevertheless, the Department of Justice and the Immigration and 
Naturalization Service (INS) are obligated to abide by the Supreme 
Court's ruling and to apply it to the thousands of aliens who are 
currently in detention after receiving final orders of removal. 
Because we are thus faced with the possible imminent release of many 
aliens who have previously been determined to pose a risk to the 
community, I am issuing this memorandum to give direction to the INS 
in handling the situation presented by the Supreme Court's ruling 
and to ensure that we take all responsible steps to protect the 
public.
    The existing post-order detention standards, at 8 CFR 
Sec. 241.4, provide for an ongoing administrative review of the 
detention of each alien subject to a final order of removal, 
allowing for the continued detention of aliens unless the INS 
determines, among other factors, that their release would not pose a 
danger to the community or a risk of flight. The Supreme Court's 
decision did not question the INS's authority to detain an alien, 
under the existing post-order detention standards, as long as 
reasonable efforts to remove the alien are still underway and it is 
reasonably foreseeable that the alien will be removed. In 
particular, the decision does not require that an alien under a 
final order of removal automatically be released after six months if 
he or she has not yet been removed. Instead, the Supreme Court held 
that ``an alien may be held in confinement until it has been 
determined that there is no significant likelihood of removal in the 
reasonably foreseeable future.''
    The Supreme Court's decision will require the INS, in 
consultation with the Department of State, to assess the likelihood 
of the removal of thousands of aliens to many different countries. 
The Supreme Court emphasized in its decision the need to ``take 
appropriate account of the greater immigration-related expertise of 
the Executive Branch, of the serious administrative needs and 
concerns inherent in the necessarily extensive INS efforts to 
enforce this complex statute, and the Nation's need `to speak with 
one voice;' in immigration matters.'' The Court also stressed the 
need for the courts to give expert Executive Branch ``decsionmaking 
leeway,'' to give deference to ``Executive Branch primacy in foreign 
policy matters,'' and to establish uniform administration of the 
immigration laws.
    The Supreme Court also made it clear that its ruling does not 
apply to those aliens who are legally still at our borders or who 
have been paroled into the country (such as the Mariel Cubans). The 
Supreme Court has held that such aliens do not have due process 
rights to enter or to be released into the United States, and 
continued detention may be appropriate to accomplish the statutory 
purpose of preventing the entry of a person who has, in the 
contemplation of the law, been stopped at the border.
    In accordance with the Supreme Court's admonitions, and pursuant 
to my authority to interpret and administer the INA, see 8 U.S.C. 
Sec. 1103(a), I have concluded that it is necessary to establish a 
mechanism by which the responsible Executive Branch officials will 
exercise their expert judgment to assess

[[Page 38434]]

the likelihood of the return of aliens, and will do so in a fair, 
consistent, and orderly manner in a nationwide detention program 
that involves thousands of aliens from virtually every country in 
the world.
    I. Accordingly, in order to carry out my responsibilities under 
the Supreme Court's decision, I am directing the INS to draft and 
present to me regulations on or before July 31, 2001, that set forth 
a procedure for aliens subject to a final order of removal (other 
than aliens who have not entered the United States or who have been 
granted immigration parole into the United States) to present a 
claim that they should be released from detention because there is 
no significant likelihood that they will be removed in the 
reasonably foreseeable future. Where the alien has presented and 
substantiated such a claim, the INS will then make a determination, 
in light of available information and circumstances, whether there 
is no significant likelihood of removing that alien in the 
reasonably foreseeable future. Until the INS makes that 
determination, or if it determines there is still a significant 
likelihood of removal, the INS will continue its efforts to remove 
the alien, and the alien's detention will continue to be governed 
under the existing post-order detention standards. However, if the 
alien has already been detained for more than six months since the 
removal order became final, and the INS determines that there is no 
significant likelihood of removal in the reasonably foreseeable 
future, the INS will either (1) release the alien, subject to 
appropriate conditions to protect the public safety and to deter the 
alien's flight; or (2) determine whether there are special 
circumstances justifying continued detention in a specific case even 
if there is no significant likelihood of removal in the reasonably 
foreseeable future.
    With respect to determinations as to the likelihood of removal, 
those regulations should: (a) Require the alien to demonstrate his 
or her ongoing efforts to comply with the removal order and to 
cooperate in the removal effort (a statutory obligation under INA 
Sec. 243(a)); (b) provide for the decisionmaking official to 
consider the Service's historical record in achieving the removal of 
aliens to the country or countries at issue; (c) provide an 
opportunity to solicit input from the Department of State regarding 
the prospects for removal of the alien; and (d) afford the alien an 
opportunity to show that because of the particular circumstances of 
his or her case, removal is, to a material extent, less likely than 
for others being removed to the same country or countries and 
therefore that there is no significant likelihood of removal in the 
reasonably foreseeable future. The regulations should also make 
clear that, as under current regulations, aliens who violate the 
conditions of their release may be taken back into custody and are 
subject to criminal prosecution.
    I am also directing the INS to develop regulations to address 
the situations that present special circumstances of the sort 
identified by the Supreme Court in Zadvydas, such as terrorists or 
other especially dangerous individuals. Those regulations should: 
(a) Adequately define the categories of aliens who are eligible for 
detention even if there is not a significant likelihood of removal 
in the reasonably foreseeable future, and (b) provide 
constitutionally sufficient procedural protections to those aliens. 
The INS should develop those standards in consultation with the 
Civil and Civil Rights Divisions, the Executive Office for 
Immigration Review, and other federal agencies with relevant 
expertise.
    II. Until the regulations described in Part I above are 
published, in order to implement a system of detention in compliance 
with the Zadvydas decision while still providing the maximum 
allowable protection to the American public, I further direct the 
INS to implement the following interim procedures with respect to 
aliens subject to a final order of removal (other than aliens who 
have not entered the United States or who have been paroled into the 
United States). Because of those concerns, any public procedure 
delaying the immediate effectiveness of these interim procedures 
would be contrary to the public interest.
    1. The INS shall immediately renew efforts to remove all aliens 
in post-order detention, placing special emphasis on aliens who have 
been detained the longest.
    2. The INS shall expeditiously conclude its ongoing file review 
for all aliens who have remained in post-order detention for 90 days 
or more, with priority given to those cases in which the aliens have 
been detained longest. As part of that review, the INS shall 
immediately begin accepting requests, submitted in writing, by 
detained aliens who contend that there is no significant likelihood 
of their removal in the reasonably foreseeable future. Those 
requests shall be submitted and considered part of the existing 
custody review procedures established by 8 CFR Sec. 241.4. Aliens 
shall be given the opportunity to submit any information that they 
believe supports this contention. Until further procedures are 
specified, the INS shall treat any alien's petition for a writ of 
habeas corpus challenging his post-order detention as such a request 
for release under existing review procedures, and the request shall 
be considered by the INS accordingly.
    3. The INS shall respond in writing, as expeditiously as 
possible, to any such written submission, prioritizing the cases of 
aliens who have been detained the longest. In all cases, the INS 
shall respond in 30 days or less. The INS's failure to respond in 30 
days will not, however, automatically entitle the alien to release.
    4. No alien who has previously been determined under existing 
procedures in 8 CFR Sec. 241.4 to pose a danger to the community 
will be released until his or her case has been processed through 
the INS review and the INS has made a determination, based on 
available information, that there is no significant likelihood of 
the alien's removal in the reasonably foreseeable future. If the INS 
decides that the alien has demonstrated that there is no significant 
likelihood of removal in the reasonably foreseeable future but that 
continued detention is justified on the basis of special 
circumstances, it shall include a basic description of those special 
circumstances in its written response. Any alien who is released 
shall be subjected to appropriate orders of supervision that protect 
the community and enhance the ability to repatriate the alien in the 
future. As provided under the current regulations and recognized by 
the Supreme Court in Zadvydas, those orders of supervision shall 
specify that the alien may be re-detained if he or she violates the 
conditions of release.
    III. In order to implement the custody review system I have 
described, the INS also is directed to:
    1. Collect data on its experience removing aliens to each 
country in the world. Those data should include, to the extent 
possible, the number of aliens removed to each country, the number 
of aliens from each country that the INS has not successfully 
removed, the length of time needed to achieve removal to each 
country, and, if known, the reasons why the removal of some classes 
of aliens may have taken longer to accomplish than for other aliens 
from that country, or could not be accomplished.
    2. Confer with the Department of State about problems removing 
aliens to particular countries and seek the assistance of the 
Department of State as appropriate, including in assessing the 
likelihood of repatriation of aliens to particular countries.
    3. Refer for prosecution appropriate cases: (a) Under INA 
Sec. 243(a) involving aliens who refuse to make timely application 
for travel documents or who obstruct their removal; and (b) under 
INA Sec. 243(b) involving aliens who violate their orders of 
supervision.
    The INS is also directed to publish this memorandum in the 
Federal Register. The public notice shall provide an address for the 
submission of requests from aliens, as provided in Part II of this 
memorandum, contending that they should be released from custody 
because there is no significant likelihood that they will be removed 
in the reasonably foreseeable future.

[FR Doc. 01-18549 Filed 7-20-01; 3:06 pm]
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