Procedures for the Detention and Release of Criminal Aliens by the Immigration and Naturalization Service and for Custody Redeterminations by the Executive Office for Immigration Review

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service and Executive Office for

Immigration Review

8 CFR Parts 3 and 236

[INS No. 1855-97; AG ORDER No. 2114-97]

RIN 1115-AE88

Procedures for the Detention and Release of Criminal Aliens by

the Immigration and Naturalization Service and for Custody

Redeterminations by the Executive Office for Immigration Review

AGENCY: Immigration and Naturalization Service, and Executive Office

for Immigration Review, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the regulations of the Immigration

and Naturalization Service (Service) and the Executive Office for

Immigration Review (EOIR) by establishing a regulatory framework for

the detention of criminal aliens pursuant to the Transition Period

Custody Rules (TPCR) set forth in the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA). This rule is necessary

to provide uniform guidance to Service officers and immigration judges

regarding application of the TPCR.

DATES: Written comments must be submitted on or before October 15,

1997.

ADDRESSES: Please submit written comments, including an original and

two copies, to the Director, Policy Directives and Instructions Branch,

Immigration and Naturalization Service, 425 ``I'' Street NW., Room

5307, Washington, DC 20536. To ensure proper handling, please reference

INS number 1855-97 on all correspondence. Comments are available for

public inspection at the above address by calling (202) 514-3048 to

arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

Brad Glassman, Office of the General Counsel, Immigration and

Naturalization Service, 425 ``I'' Street NW., Room 6100, Washington DC

20536, telephone (202) 305-0846.

SUPPLEMENTARY INFORMATION:

Background

On October 9, 1996, the Commissioner of the Immigration and

Naturalization Service notified Congress that the Service lacks the

detention space and personnel necessary to comply with the mandatory

detention provisions of section 440(c) of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110

Stat. 1214, and section 236(c) of the Immigration and Nationality Act

(Act), as amended by the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, section

303(a), 110 Stat. 3009. By operation of law, see IIRIRA section

303(b)(2), the notification results in the temporary replacement of

these mandatory detention provisions with the Transition Period Custody

Rules set forth in IIRIRA section 303(b)(3). The TPCR provide for the

detention, inter alia, of specified classes of criminal aliens, and

allow some of these aliens to be considered for release in the exercise

of the Attorney General's discretion. This proposed rule establishes

uniform rules and standards to implement the release provisions of the

TPCR for criminal aliens.

The TPCR apply, inter alia, to specifically enumerated classes of

criminal aliens in deportation proceedings (i.e., where the alien is

deportable and proceedings commenced before April 1, 1997), and in

removal proceedings (i.e., where the alien is either deportable or

inadmissible, and proceedings commenced on or after April 1, 1997). The

TPCR do not apply in exclusion proceedings (i.e., where the alien is

inadmissible and proceedings commenced before April 1, 1997) because

the TPCR replace mandatory detention provisions applicable to

deportation and removal proceedings, see IIRIRA section 303(b)(2), but

do not replace the analogous provision applicable to exclusion

proceedings, section 236(e) of the INA (as designated prior to April 1,

1997).

The TPCR apply differently with respect to aliens in removal

proceedings than they do with respect to aliens in deportation

proceedings. The TPCR replace revised section 236(c) of the Immigration

and Nationality Act (Act), which governs the detention of specified

classes of aliens during removal proceedings. The TPCR do not, however,

replace the revised section 241 of the Act, which governs detention

after a final order of removal. As a result, the TPCR apply only during

removal proceedings; the revised section 241 of the Act governs

detention after a final order of removal.

By contrast, the TPCR apply both during deportation proceedings and

after a final order of deportation (tracking the coverage of section

440(c) of AEDPA). It is expected, however,that few, if any, criminal

aliens with a final order of deportation will be released in the

exercise of discretion, because it will be exceptionally difficult for

such an alien to demonstrate the absence of a flight risk by clear and

convincing evidence as required to be considered for release in the

exercise of discretion. In a report issued in March 1996, the Office of

the Inspector General of the United States Department of Justice found

that 89 percent of non-detained aliens with final orders of deportation

failed to surrender for deportation when ordered to do so by the

Service (Report #I-96-03). Finally, as in the past, no custody

determination or redetermination need by undertaken by the Service if

actual deportation or removal is imminent.

The TPCR apply to the following classes of aliens in deportation

proceedings (or subject to a final order of deportation): aliens

convicted of aggravated felonies, under the definition of ``aggravated

felony'' as amended by IIRIRA; aliens deportable for having committed

any offense covered in section 241(a)(2)(A)(ii) (multiple crimes

involving moral turpitude), (A)(iii) (aggravated felonies), (B)

(certain controlled substance offenses), (C) (certain firearms

offenses), or (D) (certain other crimes) of the Act, as designated

prior to April 1, 1997. In removal proceedings, the TPCR will apply to

these same categories of aliens, and also to aliens inadmissible under

section 212(a)(2) or 212(a)(3)(B) of the Act. Again, the TPCR do not

apply to aliens in exclusion proceedings.

Aliens not subject to the TPCR will fall within the general

detention

[[Page 48184]]

authority applicable to aliens in deportation, exclusion, or removal

proceedings. Section 242(a)(1) of the Act (as designated prior to April

1, 1997) continues to govern the detention of deportable aliens not

falling within the coverage of the TPCR. Sections 212(d)(5) (as amended

by Pub. L. 104-208) and 235(b) (as designated prior to April 1, 1997)

of the Act continue to govern the detention and parole of non-

aggravated felons in exclusion proceedings. (Section 236(e) of the Act,

as designated prior to April 1, 1997, continues to govern the detention

of aggravated felons in exclusion proceedings.) Sections 235(b)(2) and

236(a) of the Act govern the detention of aliens in removal proceedings

who are not subject to the TPCR. The TPCR do not affect the detention

of aliens placed into expedited removal proceedings under section

235(b)(1) of the Act (as in effect on April 1, 1997).

Only two classes of criminal aliens subject to the TPCR may be

considered for release from custody. The first class of releasable

criminal aliens consists of those who have been ``lawfully admitted.''

The second class consists of those who cannot be removed from the

United States because the designated country of deportation or removal

will not accept their return.

As to the first class, the term ``lawfully admitted'' will have a

slightly different meaning in removal proceedings than in deportation

proceedings. Without exception, any alien in deportation proceedings or

subject to a final order of deportation whose last entry into the

United States was lawful is ``lawfully admitted'' for purposes of the

TPCR. An alien in deportation proceedings or subject to a final order

of deportation whose last entry was unlawful will not be considered

``lawfully admitted'' for purposes of the TPCR (except that an alien in

deportation proceedings who remains in status as a permanent resident,

conditional permanent resident, or temporary resident shall be

considered ``lawfully admitted'' despite an unlawful last entry). In

contrast, ``lawful admission'' for aliens in removal proceedings will

be determined according to the definition of ``admission'' in section

101(a)(13) of the Act (as amended by Pub. L. No. 104-208). Pursuant to

the statutory definition, an alien who last entered the United States

upon inspection and authorization by an immigration officer will be

considered ``lawfully admitted.''

As to the second class of criminals who may be considered for

release under the TPCR, i.e., those whose designated country of

deportation or removal will not accept their return, release authority

will rest with the Service district director (or other appropriate INS

officer), the official best situated to review and assess

unremovability. The Service has developed successful procedures for

review and, where appropriate, release of aliens within this small

subclass of detainees. The Service's determination of unremovability

will be final, and custody determinations pursuant to section

303(b)(3)(B)(ii) of IIRIRA will not be subject to redetermination by

EOIR.

The statute provides that, in order to be considered for release in

the exercise of discretion, criminal aliens subject to the TPCR who

fall within either of the two releasable classes must demonstrate that

they will not pose a danger to the safety of other persons or of

property, and will likely appear for any scheduled proceeding,

including immigration hearings or other appearances required by the

Service or EOIR. Following precedent decisions of the Board of

Immigration Appeals (Board) interpreting similar language, the inquiry

into danger to persons and property is separate from and precedes the

inquiry into flight risk. If the alien cannot demonstrate the absence

of danger to persons or property, the inquiry ends. Only upon such a

showing may the alien further demonstrate the absence of flight risk in

order to be considered fro release in the exercise of discretion.

The proposed rule establishes uniform rules and standards for the

exercise of the discretion conferred by the statute upon the Attorney

General. The overarching concern reflected in the proposed rule is that

aliens posing a danger to persons or property remain in custody until

removed from the United States. A second concern arises from the high

percentage of aliens released from Service custody who abscond from

lawful processes and become fugitives. In general, Congress has

expressed in IIRIRA a clear intention that criminal aliens be detained,

subject only to very limited exceptions.

The proposed rule accommodates these concerns by creating three

classes of criminal aliens subject to the TPCR. The first class

consists of criminals judged by the Attorney General to present, by

reason of their prior conviction or conduct, a danger to the community

or a flight risk so great as to warrant a per se rule of non-release.

Aliens in this class include, for example, those who have been

convicted of murder, rape, or sexual abuse of a minor, and those who

have escaped or attempted to escape from the lawful custody of a

prison, government agency, or officer.

The second class consists of criminal aliens whose prior

convictions or conduct are sufficiently serious to present a strong

detention interest. Aliens in this class would include, for example,

those who have been convicted of controlled substance trafficking or

lawful firearm possession, or who have failed to appear for a criminal

trial or for removal. In such cases, detention will generally be

required, but two classes of lawfully admitted aliens will be afforded

an opportunity to present countervailing evidence and be considered for

release: (1) aliens lawfully admitted for permanent residence; and (2)

lawfully admitted aliens who have remained free of convictions,

immigration violations, and the like for an uninterrupted period of ten

years prior to the institution of proceedings (not including any

periods of incarceration or detention). However, lawfully admitted

aliens from both classes who are eligible to present countervailing

evidence must still establish by clear and convincing evidence that

they pose no danger to the safety of persons or of property and that

they are likely to appear for any scheduled proceeding. As discussed

above, the meaning of ``lawfully admitted'' will differ for aliens in

deportation proceedings and for those in removal proceedings.

The third class consists of criminal aliens who have been convicted

of lesser serious offenses, such as crimes of theft with an aggregate

sentence of less than three years, and simple possession of a

controlled substance. In such cases, lawfully admitted aliens will be

subject to the TPCR's baseline criteria alone, and may be considered

for release upon demonstrating, by clear and convincing evidence, a

lack of dangerousness and an absence flight risk. Aliens in the third

class may still be found to present extremely serious indicia of flight

risk or danger to the safety of persons or of property, and it is

expected that even in this class only unusually compelling cases will

warrant release in the exercise of discretion. Again, the meaning of

``lawfully admitted'' will differ for aliens in deportation proceedings

and for those in removal proceedings.

The proposed rule sets forth the governing standards both for the

Service and for EOIR. With some exceptions, the provisions are

parallel, and, as in the past, the procedural regulations in Sec. 3.19

operate pursuant to the substantive regulations (her, in part 236)

implementing the detention and release authority conferred in the

statute. The

[[Page 48185]]

immigration judges will generally continue to exercise custody

redetermination jurisdiction over deportable aliens and aliens who

enter without inspection (subject to the exceptions and within the

limits established in the TPCR and in this proposed rule). Aliens

arriving at ports-of-entry and other ``arriving aliens'' (including

aliens paroled pursuant to section 212(d)(5) of the Act) will remain

subject solely to the parole authority of the Service.

The proposed rule also contains provisions for a stay of an

immigration judge's order redetermining custody conditions when the

Service appeals the custody decision to the Board. The rule provides

for an automatic stay where the alien is subject to the TPCR, section

236(c) of the Act, or former 242(a)(2) of the Act (as amended by

AEDPA), and the district director has set a bond of $10,000 or more (or

has denied bond outright). The stay remains in effect until the Board

renders a decision on the merits of the custody appeal.

In all other cases, the rule allows the Service to file an appeal

of the custody decision with the Board, and an emergency stay request

in connection with the appeal. The Board will than have discretion to

grant or deny the stay request. These provisions provide an added

measure of assurance that persons believed to present a danger to the

community or a risk of flight are not released.

30-Day Comment Period

This rule is being proposed with a 30-day notice and comment period

due to the urgent need for regulatory guidance to Service officers and

immigration judges regarding application of the TPCR.

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 because it affects

individual aliens, not small entities.

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 804 of the

Small Business Regulatory Enforcement Act of 1996. 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, Immigration

and Naturalization Service, to be a ``significant regulatory action''

under Executive Order 12866, section 3(f), Regulatory Planning and

Review. Accordingly, this regulation has been submitted to the Office

of Management and Budget for review.

Executive Order 12612

The regulation adopted herein 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 Executive Order 12612, it is determined that this rule

does not have sufficient federalism implication to warrant the

preparation of a Federalism Assessment.

Executive Order 12988

This proposed rule meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of Executive Order 12988.

List of Subjects

8 CFR Part 3

Administrative practice and procedure, Immigration, Organization

and functions (Government agencies).

8 CFR Part 236

Administratvie practice and procedure, Aliens, Immigration.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is proposed to be amended as follows:

PART 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. 1103, 1226, 1362; 28 U.S.C.

509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953

Comp., p. 1002, sec. 303(b)(3) of Pub. L. 104-208.

2. In Sec. 3.19, paragraphs (h) and (i) are added to read as

follows:

Sec. 3.19 Custody/Bond.

* * * * *

(h)(1)(i) While the Transition Period Custody Rules (TPCR) set

forth in section 303(b)(3) of Public Law 104-208 remain in effect, an

immigration judge may not redetermine conditions of custody imposed by

the Service with respect to the following classes of aliens:

(A) Aliens in exclusion proceedings;

(B) Arriving aliens in removal proceedings, including persons

paroled after arrival pursuant to section 212(d)(5) of the Act;

(C) Aliens described in section 237(a)(4) of the Act;

(D) Aliens subject to section 303(b)(3)(A) of Public Law 104-208

who are not ``lawfully admitted'' (as defined in Sec. 236.1(c)(3) of

this chapter); or

(E) Aliens designated in Sec. 236.1(c) of this chapter as

ineligible to be considered for release.

(ii) Nothing in this paragraph shall be construed as prohibiting an

alien from seeding a redetermination of custody conditions by the

Service in accordance with part 235 or 236 of this chapter. In

addition, with respect to paragraphs (h)(1)(i) (C), (D), and (E) of

this section, nothing in this paragraph shall be construed as

prohibiting an alien from seeking a determination by an immigration

judge that the alien is not properly included within those paragraphs.

(2)(i) Upon expiration of the Transition Period Custody Rules set

forth in section 303(b)(3) of Public Law 104-208, an immigration judge

may not redetermine conditions of custody imposed by the Service with

respect to the following classes of aliens:

(A) Aliens in exclusion proceedings;

(B) Arriving aliens in removal proceedings, including aliens

paroled after arrival pursuant to section 212(d)(5) of the Act;

(C) Aliens described in section 237(a)(4) of the Act;

(D) Aliens in removal proceedings subject to section 236(c)(1) of

the Act (as in effect after expiration of the Transition Period Custody

Rules); and

(E) Aliens in deportation proceedings subject to section 242(a)(2)

of the Act (as in effect prior to April 1, 1997, and as amended by

section 440(c) of Public Law 104-132.

(ii) Nothing in this paragraph shall be construed as prohibiting an

alien from

[[Page 48186]]

seeking a redetermination of custody conditions by the Service in

accordance with part 235 or 236 of this chapter. In addition, with

respect to paragraphs (h)(2)(i) (C), (D), and (E) of this section,

nothing in this paragraph shall be construed as prohibiting an alien

from seeking a determination by an immigration judge that the alien is

not properly included within those paragraphs

(3) Except as otherwise provided in paragraph (h)(1) of this

section, an alien subject to section 303(b)(3)(A) of Public Law 104-208

may apply to the Immigration Court, in a manner consistent with

paragraphs (c)(1) through (c)(3) of this section, for a redetermination

of custody conditions set by the Service. Such an alien must first

demonstrate, by clear and convincing evidence, that release would not

pose a danger to other persons or to property. If an alien meets this

burden, the alien must further demonstrate, by clear and convincing

evidence, that the alien is likely to appear for any scheduled

proceeding or interview.

(4) Unremovable aliens. A determination of a district director (or

other official designated by the Commissioner) regarding the exercise

of authority under section 303(b)(3)(B)(ii) of Public Law 104-208

(concerning release of aliens who cannot be removed because the

designated country of removal will not accept their return) is final,

and shall not be subject to redetermination by an immigration judge.

(i) Stay of custody order pending Service appeal. (1) General

emergency stay authority. The Board of Immigration Appeals (Board) has

the authority to stay the order of an immigration judge redetermining

the conditions of custody of an alien when the Service appeals the

custody decision. The Service is entitled to seek an emergency stay

form the Board in connection with such an appeal at any time.

(2) Automatic stay in certain cases. If an alien is subject to

section 242(a)(2) of the Act (as in effect prior to April 1, 1997, and

as amended by section 440(c) of Public Law 104-132), section

303(b)(3)(A) of Public Law 104-208, or section 236(c)(1) of the Act (as

designated on April 1, 1997), and the district director has denied the

alien's request for release 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 Form EOIR-43

with the Immigration Court on the day the order is issued, and shall

remain in abeyance pending decision of the appeal by the Board of

Immigration Appeals. The stay shall lapse upon failure of the Service

to file a timely notice of appeal in accordance with Sec. 3.38.

PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE

ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

3. The authority citation for part 236 is revised to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362;

sec. 303(b) of Pub. L. No. 104-208; 8 CFR part 2.

4. Section 236.1 is amended by:

a. Revising paragraph (c)(1);

b. Redesignating paragraphs (c)(2) through (c)(5), as paragraphs

(c)(8) through (c)(11) respectively; and by

c. Adding new paragraphs (c)(2) through (c)(7), to read as follows:

Sec. 236.1 Apprehension, custody, and detention.

* * * * *

(c) * * *

(1) (i) After the expiration of the Transition Period Custody Rules

(TPCR) set forth in section 303(b)(3) of Public Law 104-208, no alien

described in section 236(c)(1) of the Act may be released from custody

during removal proceedings except pursuant to section 236(c)(2) of the

Act.

(ii) Paragraphs (c)(2) through (c)(8) of this section shall govern

custody determinations for aliens subject to the TPCR while they remain

in effect. For purposes of this section, an alien ``subject to the

TPCR'' is an alien described in section 303(b)(3)(A) of Public Law 104-

208 who is in deportation proceedings, subject to a final order of

deportation, or in removal proceedings. The TPCR do not apply to aliens

in exclusion proceedings under former section 236 of the Act, aliens in

expedited removal proceedings under section 235(b)(1) of the Act, or

aliens subject to a final order of removal.

(2) Aliens not lawfully admitted. Subject to paragraph (c)(6) of

this section, but notwithstanding any other provision within this

section, an alien subject to the TPCR who is not lawfully admitted is

not eligible to be considered for release from custody.

(i) An alien in deportation proceedings or subject to a final order

of deportation is ``lawfully admitted'' for purposes of this section if

the alien's last entry into the United States was lawful. An alien in

deportation proceedings or subject to a final order of deportation

whose last entry was unlawful will not be considered ``lawfully

admitted'' for purposes of this section, unless the alien remains in

status as an alien lawfully admitted for permanent residence,

conditionally admitted for permanent residence, or lawfully admitted

for temporary residence.

(ii) An alien in removal proceedings is ``lawfully admitted'' for

purposes of this section if the alien has been `'admitted'' within the

terms of section 101(a)(13) of the act (as in effect on April 1, 1997).

(3) Criminal aliens eligible to be considered for release. Except

as provided in this section, or otherwise provided by law, an alien

subject to the TPCR may be considered for release from custody if

lawfully admitted. Such an alien must first demonstrate, by clear and

convincing evidence, that release would not pose a danger to the safety

of other persons or of property. If an alien meets this burden, the

alien must further demonstrate, by clear and convincing evidence, that

the alien is likely to appear for any scheduled proceeding (including

any appearance required by the Service or EOIR) in order to be

considered for release in the exercise of discretion.

(4) Criminal aliens ineligible to be considered for release except

in certain special circumstances. An alien subject to section

303(b)(3)(A) (ii) or (iii) of Pub. L. No. 104-208 is ineligible to be

considered for release if the alien:

(i) Is described in section 241(a)(2)(C) of the Act (as in effect

prior to April 1, 1997), or has been convicted of a crime described in

section 101(a)(43) (B), (E)(ii), or (F) of the Act (as in effect on

April 1, 1997);

(ii) Has been convicted of a crime described in section

101(a)(43)(G) of the Act (as in effect on April 1, 1997) or a crime or

crimes involving moral turpitude related to property, and sentenced

therefor (including in the aggregate) to at least 3 year's

imprisonment;

(iii) Has failed to appear for an immigration proceeding without

reasonable cause or has been subject to a bench warrant or similar

legal process (unless quashed, withdrawn, or canceled as improvidently

issued);

(iv) Has been convicted of a crime described in section 101(a)(43)

(Q) or (T) of the Act (as in effect on April 1, 1997);

(v) Has been convicted in a criminal proceeding of a violation of

section 273, 274, 274C, 276, or 277 of the Act, or has admitted the

factual elements of such a violation;

(vi) Has overstayed a period granted for voluntary departure; or

(vii) Has failed to surrender or report for removal pursuant to an

order of exclusion, deportation, or removal,

[[Page 48187]]

unless the alien was lawfully admitted and either remains in status as

a permanent resident or has not, since the commencement of proceedings

or within the 10 years prior thereto, been convicted of a crime, failed

to comply with an order to surrender or a period of voluntary

departure, or been subject to a bench warrant or similar legal process

(unless quashed, withdrawn, or canceled as improvidently issued). An

alien eligible to be considered for release under this paragraph must

meet the burdens described in paragraph (c)(3) of this section in order

to be released from custody in the exercise of discretion.

(5) Criminal aliens ineligible to be considered for release. A

criminal alien subject to section 303(b)(3)(A) (ii) or (iii) of Pub. L.

No. 104-208 is ineligible to be considered for release if the alien:

(i) Is described in section 237(a)(2)(D) (i) or (ii) (as in effect

on April 1, 1997), or has been convicted of a crime described in

section 101(a)(43) (A), (C), (E)(i), (H), (I), (K)(iii), or (L) of the

Act (as in effect on April 1, 1997);

(ii) Is described in section 237(a)(2)(A)(iv) of the Act;

(iii) Has escaped or attempted to escape from the lawful custody of

a local, state, or Federal prison, agency, or officer within the United

States; or

(iv) Does not wish to pursue, or is statutorily ineligible for, any

form of relief from exclusion, deportation, or removal under this

chapter or the Act.

(6) If the district director determines that an Alien subject to

section 303(b)(3)(A) (ii) or (iii) of Pub. L. 104-208 cannot be removed

from the United States because the designated country of removal of

deportation will not accept the alien's return, the district director

may, in the exercise of discretion, release the alien from custody upon

such terms and conditions as the district director may prescribe,

without regard to paragraphs (c)(2) through (c)(5) of this section.

Under no circumstances, however, shall the district director release

from custody an alien whose release would pose a danger to persons or

to property, or who is unlikely to appear for any scheduled proceeding

(including any appearance required by the Service or EOIR). The

district director's custody decision shall not be subject to

redetermination by an immigration judge.

(7) Construction. A reference in this section to a provision in

section 241 of the Act as in effect prior to April 1, 1997, shall be

deemed to include a reference to the corresponding provision in section

237 of the Act as in effect on April 1, 1997. A reference in this

section to a ``crime'' shall be considered to include a reference to a

conspiracy or attempt to commit such a crime. In calculating the 10-

year period specified in paragraph (c)(4) of this section, no period

during which the alien was detained or incarcerated shall count toward

the total. Nothing in this part shall be construed as prohibiting an

alien from seeking reconsideration of the Service's determination that

the alien is within a category barred from release under this part.

* * * * *

Dated: September 5, 1997.

Janet Reno,

Attorney General.

[FR Doc. 97-24411 Filed 9-11-97; 8:45 am]

BILLING CODE 4410-10-M