[Federal Register Volume 66, Number 211 (Wednesday, October 31, 2001)]
[Rules and Regulations]
[Pages 54909-54912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27447]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 3
[INS No. 2172-01; AG Order No. 2528-2001]
RIN 1115-AG41
Executive Office for Immigration Review; Review of Custody
Determinations
AGENCY: Immigration and Naturalization Service, Justice; and Executive
Office for Immigration Review, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule amends the regulations of the Executive Office for
Immigration Review (EOIR), by expanding the existing regulatory
provision for a temporary automatic stay of an immigration judge's
decision to order an alien's release in any case in which a district
director has ordered that the alien be held without bond or has set a
bond of $10,000 or more, to maintain the status quo while the
Immigration and Naturalization Service seeks expedited review of the
custody order by the Board of Immigration Appeals (Board) or by the
Attorney General.
DATES: Effective date: This interim rule is effective October 29, 2001.
Comment date: Written comments must be submitted on or before
December 31, 2001.
ADDRESSES: Please submit written comments to the Director, Policy
Directives and Instructions Branch, Immigration and Naturalization
Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure
proper handling, please reference INS No. 2172-01 on your
correspondence. The public may also submit comments electronically to
the Service at [email protected]. When submitting comments
electronically, please make sure that you include INS No. 2172-01 in
the subject field. Comments are available for public inspection at the
above address by calling (202) 514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: For matters relating to the Executive
Office for Immigration Review: Chuck Adkins-Blanch, General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Falls
Church, VA 22041, telephone (703) 305-0470 (not a toll-free call). For
matters relating to the Immigration and Naturalization Service: Daniel
S. Brown, 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:
Background
Section 236 of the Immigration and Nationality Act (the Act), 8
U.S.C. 1226, authorizes the Attorney General to determine whether to
hold an alien in custody while proceedings are pending to determine
whether an alien is to be removed from the United States. As a general
principle, whether to detain an alien or to release the alien on bond
or other appropriate conditions is a matter entrusted to the Attorney
General's discretion. Under section 236(c) of the Act, however, certain
aliens are subject to mandatory detention during the course of
proceedings to determine their removal. These generally include
individuals who are inadmissible or deportable due to the commission of
specified crimes or due to having engaged in terrorist activity.
More than a century ago, the Supreme Court upheld detention as a
necessary aspect of the exclusion or expulsion of aliens. Wong Wing v.
United States, 163 U.S. 228, 235 (1896); see also Carlson v. Landon,
342 U.S. 524, 538 (1952) (``Detention is necessarily a part of this
deportation procedure. Otherwise aliens arrested for deportation would
have opportunities to hurt the United States during the pendency of
deportation proceedings.''). An alien's interest in being at liberty
during the course of immigration proceedings is ``narrow'' and
``circumscribed by considerations of the national interest.'' Doherty
v. Thornburgh, 943 F.2d 204, 208, 208, 209 (2d Cir. 1991). ``An alien's
freedom from detention is only a variation on the alien's claim of an
interest in entering the country.'' Clark v. Smith, 967 F.2d 1329, 1332
(9th Cir. 1992).
Section 236 of the Act confers discretion upon the Attorney General
to determine the custody of aliens who are in proceedings as long as
they are not subject to the mandatory detention provisions of section
236(c) of the Act. The detention of aliens during the pendency of the
immigration proceedings serves two essential purposes: ensuring removal
by preventing the alien from fleeing, and protecting the public from
potential harm.
Under the regulations, the Immigration and Naturalization Service
(Service) makes the initial custody decision in each case--that is,
whether to keep the alien in detention pending completion of the
removal proceedings, or whether to release the alien on bond or other
appropriate conditions. The alien, however, may ask an immigration
judge to review the custody decision,
[[Page 54910]]
subject to specified exceptions in Sec. 3.19(h). The immigration judge
may then reduce the required bond amount, release the alien on his or
her own recognizance, or make such other custody decision as the
immigration judge finds warranted. The Board then has jurisdiction to
hear an appeal (whether by the alien or by the Service) from the
immigration judge's decision.
Stays Pending Appeals of Custody Determinations
This rule revises the existing provisions in Sec. 3.19(i). That
rule currently provides for an automatic stay in certain cases where
the Service has denied release of an alien during the pendency of
removal proceedings or has set a bond in excess of $10,000, an
immigration judge orders an alien released, and the Service promptly
files a Form EOIR-43, Notice of Intent to Appeal Custody
Redetermination, with the Immigration Court. If the Service then files
a timely appeal, the stay will continue pending the disposition of the
appeal by the Board. See Matter of Joseph, Int. Dec. 3387 (1999).
Under the existing rule, since the expiration of the Transition
Period Custody Rules, this automatic stay applies only to cases
involving aliens subject to mandatory detention. This interim rule
extends the existing scope of the automatic stay provisions in
Sec. 3.19(i) to authorize the Service, in its discretion, to invoke the
automatic stay in other cases in which the Service has denied release
of an alien during the pendency of the removal proceedings or has set a
bond of $10,000 or more.
This change will allow the Service to maintain the status quo while
it seeks review by the Board, and thereby avoid the necessity for a
case-by-case determination of whether a stay should be granted in
particular cases in which the Service had previously determined that
the alien should be kept in detention and no conditions of release
would be appropriate. This stay is a limited measure and is limited in
time--it only applies where the Service determines that it is necessary
to invoke the special stay procedure pending appeal, and the stay only
remains in place until the Board has had the opportunity to consider
the matter.
However, in order to ensure that any custody appeal proceedings are
conducted on an expeditious basis, this rule also amends Sec. 3.19(i)
to add a new limitation that the automatic stay will continue, pending
the decision by the Board on appeal, only if the Service files its
appeal within ten business days of the immigration judge's order. Under
the current rules, once the Service has invoked the automatic stay
provision, it has the usual 30 days to file an appeal to the Board. As
a matter of practice, the Service does not take that long and makes a
prompt decision on whether or not to appeal a custody decision that is
subject to an automatic stay. This change in the rule will better
reflect the need for an expedited decision in the case of a custody
appeal that is subject to an automatic stay.
In addition to the existing provisions for an automatic stay of an
immigration judge's custody decision in Sec. 3.19(i), pending an appeal
to the Board, this rule also provides an automatic five-day stay of the
Board's decision, where the Board dismisses the Service's appeal of an
immigration judge's custody decision. This provision will allow the
Commissioner a meaningful opportunity to review the Board's decision
and to decide whether to certify the case to the Attorney General
pursuant to Sec. 3.1(h). Where the Commissioner certifies a custody
decision of the Board to the Attorney General within that five-day
period, the automatic stay will continue pending the Attorney General's
review of the custody issues.
This change in Sec. 3.19 makes explicit, in the context of bond
appeals, the general principle that a ``decision of the Board is not
final while pending review before the Attorney General on
certification.'' Matter of Farias, 21 I&N Dec. 269, 282 (BIA 1996; A.G.
1997). This provision for an automatic stay will avoid the necessity of
having to decide whether to order a stay on extremely short notice with
only the most summary presentation of the issues.
The rule also makes a slight modification to the existing rule by
providing that the Form EOIR-43 must be filed within one business day
of the decision of the immigration judge. This is intended to afford
the Service an opportunity to file the Form EOIR-43 in those cases
where the immigration judge's custody decision is issued after normal
business hours.
Effective Date of This Interim Rule
The Department's immediate implementation of this interim rule,
with provision for post-promulgation public comment, is based upon
findings of good cause pursuant to 5 U.S.C. 553(b)(3)(B) and (d).
The immediate implementation of this interim rule without prior
public comment is necessary to prevent the release of aliens who may
pose a threat to national security and to provide a clear set of
procedural rules of administrative procedure with respect to
determining the custody conditions and bond status for aliens during
the pendency of removal proceedings. The existing rules permit the
Service to appeal a decision ordering the release of an alien, but in
many cases the rules do not provide for a stay of the release decision
during the time that the Service would be pursuing an appeal. Thus, an
alien who has received a custody redetermination by an immigration
judge is eligible for release under the terms of that order unless and
until a stay of that order is granted by the Board.
The time that elapses from the custody redetermination to the
granting of a stay by the Board may be significant. The time it takes
to draft a notice of appeal and motion for emergency stay and file
these documents with the Board is often up to twenty-four hours, as the
Service attorney handling the case may have to complete his or her
duties in court that day before securing the necessary supervisory
approval to file the motion for stay. The Service attorney then must
draft the filings and transmit them to the Board in Falls Church,
Virginia. The Board then must review the record and adjudicate the
motion. The Board does not have a complete record upon which to base a
ruling, because that record remains with the immigration court. As a
matter of practice, the Board will not grant a stay without
communicating with the alien or opposing counsel, so as to ascertain
the alien's position regarding the necessity of the stay. Thus, under
current procedures, there is a significant window of time wherein the
alien may be released while the Service prepares its filings to the
Board and while the Board adjudicates the motion. Also, the crucial
determination by the Board is made without the benefit of a full record
of proceedings and the Board instead relies upon the submissions of the
parties.
Another significant problem that is remedied by this provision
concerns custody determinations that arise on the west coast. Due to
the time difference between the east and west coast, an alien may be
ordered released after the Board has closed for the day. When this
occurs, the Service is effectively barred from filing a stay request
and this significantly increases the period during which the alien may
be released.
During this window of time, the Service may be required to release
an alien that it believes is a threat to national security or the
public safety without even having the opportunity to present its case
to the Board. The automatic stay provision allows the Service attorney
to maintain the alien's custody status via immediate filing of
[[Page 54911]]
the Form EOIR-43. This rule extends the scope of the existing automatic
stay provision to cover all cases in which the Service has denied
release of an alien pending the completion of removal proceedings or
has set a bond of $10,000 or more, and in which the Service
specifically invokes the automatic stay in order to seek an expedited
appeal. The purpose of the automatic stay is to allow the Service to
maintain the status quo during such time as is necessary for the
Service to take a prompt appeal to the Board, and the stay only remains
in place until the Board has had an opportunity to consider the matter.
This rule similarly provides a five-day period after a decision by the
Board to allow sufficient time for the Commissioner to determine
whether to certify a decision of the Board to the Attorney General for
review. These provisions for a temporary automatic stay will avoid the
necessity of the Service having to seek stays on a case by case basis
and the Board or the Attorney General having to decide whether to order
a stay on extremely short notice with only the most summary
presentation of the issues.
Finally, the current investigation in connection with recent
terrorist activities has resulted in the detention of a large number of
individuals. This may overwhelm the capacity of the Service to take the
steps necessary to secure stays of custody redeterminations in timely
fashion. The automatic stay provision will address this problem and
prevent the Service and the Board from being overwhelmed with stay
requests.
For these reasons, the Attorney General has determined that there
is good cause to publish this interim rule and to make it effective
upon filing for public inspection at the Office of the Federal
Register, because the delays inherent in the regular notice-and-comment
process would be ``impracticable, unnecessary and 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 that this rule will not have a significant economic
impact on a substantial number of small entities. This rule extends the
scope of the existing automatic stay provision to cover cases in which
the Service has denied release of an alien pending the completion of
removal proceedings or has set a bond of $10,000 or more, in order to
allow the Service to maintain the status quo while it pursues an
expedited appeal of an order to release the alien from custody. This
rule does not affect small entities as that term is defined in 5 U.S.C.
601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804. This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. Accordingly, this rule has been
submitted to the Office of Management and Budget (OMB) 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.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to OMB, for review and approval, any
reporting or recordkeeping requirements inherent in a final rule. This
rule does not impose any new reporting or recordkeeping requirements
under the Paperwork Reduction Act.
List of Subjects
8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (government agencies).
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 3 is revised to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note,
1252b, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No.
2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L.
105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-
386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554,
114 Stat. 2763A-326 to -328.
2. Section 3.19 is amended by revising paragraph (i)(2), to read as
follows:
Sec. 3.19 Custody/bond.
* * * * *
(i) * * *
(1) * * *
(2) Automatic stay in certain cases. In any case in which the
district director has determined that an alien should not be released
or has set a bond of $10,000 or more, any order of the immigration
judge authorizing release (on bond or otherwise) shall be stayed upon
the Service's filing of a Notice of Service Intent to Appeal Custody
Redetermination (Form EOIR-43) with the immigration court within one
business day of the issuance of the order, and shall remain in abeyance
pending decision of the appeal by the Board of Immigration Appeals. The
stay shall lapse if the Service fails to file a notice of appeal with
the Board in accordance with Sec. 3.38 within ten business days of the
issuance of the order of the immigration judge. If the Board authorizes
release (on bond or otherwise), that order shall be automatically
stayed for five business days. If, within that five-day period, the
Commissioner certifies the Board's custody order to the Attorney
General pursuant to Sec. 3.1(h)(1) of this chapter, the Board's order
shall continue to be stayed pending the decision of the Attorney
General.
[[Page 54912]]
Dated: October 26, 2001.
John Ashcroft,
Attorney General.
[FR Doc. 01-27447 Filed 10-29-01; 1:51 pm]
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