[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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