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. 2152-98]

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: Final rule.

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SUMMARY: This rule amends the regulations of the Immigration and

Naturalization Service (Service) and the Executive Office for

Immigration Review (EOIR), 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 (IJs)

regarding application of the TPCR.

DATES: This rule is effective June 18, 1998.

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 (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. 104-132, 110

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

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

Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, Div. C,

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

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

these mandatory detention provisions with the Transition Period Custody

Rules (TPCR) set forth in IIRIRA section 303(b)(3). A second

notification on September 29, 1997, continued the TPCR in effect for an

additional year. 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.

The Department of Justice (Department) published a proposed rule to

implement the TPCR on September 15, 1997, at 62 FR 48183, with written

comments due by October 15, 1997. The proposed rule established three

categories of criminal aliens for purposes of detention and release

under the TPCR. Aliens in the first category were subject to mandatory

detention. Aliens in the second category were subject to mandatory

detention except in the case of lawful permanent resident aliens and

certain other lawfully admitted aliens who had remained free of crimes,

immigration violations, and the like for a 10-year period. Aliens

excepted from the second category and aliens in the third category

could be considered for release on a case-by-case basis, in the

exercise of discretion.

The proposed rule also established procedures for the Service to

obtain a stay of an immigration judge's custody decision in conjunction

with an appeal of the custody decision to the Board of Immigration

Appeals (Board). In providing explicit authority for the Service to

seek an emergency stay, the rule codified a long-standing

administrative practice. The rule departed from present practice,

however, in providing for an automatic stay in certain criminal cases

where the Service appeals the redetermination of a bond set at $10,000

or more (including an outright denial of bond).

The Department has received a number of public comments

recommending modifications of the proposed rule. Because several of the

comments overlap or endorse the submissions of other commenters, the

following discussion will address the comments by topic rather than by

response to each comment individually.

General Rules Versus Ad Hoc Adjudication

Several commenters objected to the establishment of categories of

non-releasable deportable and inadmissible criminal aliens based on

factors strongly indicating a poor bail risk. The commenters expressed

a preference for case-by-case custody determinations in all situations,

criticizing categorical rules as burdensome with respect to the

Service's detention resources, less flexible and nuanced than case-by-

case consideration, invasive of immigration judges' bond

redetermination authority, contrary to the TPCR, and, in the case of

permanent resident aliens, unconstitutional.

The Department has carefully considered the views of the

commenters, and will retain the basic structure of the proposed rule,

with certain modifications. This rule implements an important component

of a congressional and executive policy to ensure the swift and certain

removal of aliens who commit serious crimes in this country. The

success of this policy, in the estimation of both Congress and the

Department, significantly affects the well being of the United States

and its law-abiding citizen, residents, and visitors.

Congress' near-complete power over immigration transcends the

specific grant of authority in Article 1, Section 8 of the

Constitution, and derives from the ``inherent and inalienable right of

every sovereign and independent nation'' to determine which aliens it

will admit or expel. Fong Yue Ting v. United States, 149 U.S. 698, 711

(1893); see also, e.g,. Landon v. Plasencia, 459 U.S. 21, 32 (1982)

(``[T]he power to admit or exclude aliens is a sovereign

prerogative,''); Kleindienst v. Mandel, 408 U.S. 753, 766-67 (1972) (``

`Policies pertaining to the entry of aliens and their right to remain

here are peculiarly concerned with the political conduct of

government.' '' (quoting Galvan v. Press, 347 U.S. 522, 531 (1954));

Flemming v. Nestor, 363 U.S. 603, 616 (1960) (describing ``power of

Congress to fix the conditions under which aliens are to be permitted

to enter and remain in this country'' as ``plenary''); Harisiades v.

Shaughnessy, 342 U.S. 580, 587-88 (1952) (Power to remove even

permanent resident aliens is ``confirmed by international law as a

power inherent in every sovereign state.''); Mahler v. Eby, 264 U.S.

32, 39 (1924) (describing as ``unquestioned'' the power of Congress

`'to rid the country of persons who have shown by their career that

their continued presence here would not make for the safety or welfare

of society''). More than a century ago, the Supreme Court upheld

detention

as part of the means necessary to give effect to the provisions for

the exclusion of expulsion of aliens * * *. Proceedings to exclude

or expel would be in vain if those accused could not be held in

custody pending the inquiry into their true character and while

arrangements were being made for their deportation.

Wong Wing v. United States, 163 U.S. 228, 235 (1896); see also Carlson

v. Landon, 342 U.S. 524, 538 (1952) (``Detention is

[[Page 27442]]

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.''). It is

therefore ``axiomatic'' that 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), cert.

dismissed 503 U.S. 901 (1992),

The detention of removable criminal aliens during proceedings

serves two essential purposes: Ensuring removal by preventing the alien

from fleeing, and protecting the community from further criminal acts

or other dangers. The stakes for the Government are considerable in

this context. The apprehension of a criminal alien who absconds during

the removal process is expensive, time-consuming, and, in many cases,

dangerous both to Government personnel and to civilians. Failure to

recover such an alien for removal means not only scores of hours wasted

by immigration judges, Service attorneys, interpreters, immigration

officers, and clerical and support staff, but also a fugitive alien

criminal beyond the control of lawful process and at large in the

community. Released aliens who abscond calculate--correctly--``that the

INS lacks the resources to conduct a dragnet.'' Ofosu v. McElroy, 98

F.3d 694, 702 (2d Cir. 1996). As further discussed below, abscondment

by criminal aliens subject to removal has become disturbingly frequent.

Beginning with the Anti-Drug Abuse Act of 1988 (ADAA), Pub. L. 100-

690, 102 Stat. 4181, continuing with the Immigration Act of 1990

(Immact), Pub. L. 101-649, 104 Stat. 4978, and culminating with the

recent enactment of AEDPA and IIRIRA, successive legislation over the

past decade has mandated increasingly severe immigration consequences

for aliens convicted of serious crimes, and has imposed restrictive

detention conditions on such aliens during removal proceedings.

Congress' concern with criminal aliens who flee or commit additional

crimes is plainly evident in the detention provisions of the ADAA and

Immact, as amended by the Miscellaneous and Technical Immigration and

Naturalization Amendments of 1991, Pub. L. 102-232, 105 Stat. 1733 See

8 U.S.C. section 1252 (a)(2) (1995) (mandating detention of aliens

convicted of an aggravated felony except upon demonstration of lawful

entry and lack of threat to community and flight risk); 8 U.S.C.

section 1226(e) (1995) (mandating detention of aliens convicted of an

aggravated felony who seek admission to the United States except when

home country refuses to repatriate and alien demonstrates lack of

threat to community). The legislative history of former section

242(a)(2) and IIRIRA section 303 also reflects these concerns. See S.

Rep. No. 48, 104th Cong., 1st Sess., 1995 WL 170285 (Apr. 7, 1995); 141

Cong. Rec. S7803, 7823 (daily ed. June 7, 1995) (statement of Senator

Abraham); see also Davis v. Weiss, 749 F. Supp. 47, 50 (D. Conn. 1990);

Morrobel v. Thornburgh, 744 F. Supp. 725, 728 (E.D. Va. 1990)

(Legislators reasonably deemed mandatory detention necessary because

aggravated felons ``are likely to abscond before the completion of the

deportation proceedings.'').

These concerns motivated some of the basic procedural reforms

embodied in IIRIRA. See, e.g., INA section 236(a)(2) (raising minimum

bond during proceedings from $500 to $1,500); 236(c) (mandating

detention of criminals during proceedings); section 236(e) (barring

judicial review of discretionary custody determinations); 241(a)

(requiring detention of aliens during 90-day ``removal period'' after

final order). Congress has specifically addressed the detention of

removable criminal aliens by greatly increasing Service detention

resources over several years, and by expressing in IIRIRA a clear

intention that aliens removable from the United States on the basis of

a crime be detained, except in very limited circumstances, see INA

section 236(c)(1), (2) (permanent provisions mandating detention during

proceedings of most aliens removable on criminal grounds); section

241(a)(2) (``Under no circumstances during the removal period shall the

Attorney General release an alien who has been found'' removable on

criminal or terrorist grounds.). Discretion remains under the statute

only by virtue of transitional rules enacted to ease the burden of

mandatory detention on the Service's detention resources.

Indeed, section 236(c) of IIRIRA would now bar the release during

proceedings of most aliens removable on criminal grounds, were it not

for the Service's notification to Congress invoking the TPCR. Having

invoked the TPCR on the basis of insufficient detention resources, the

Department remains responsible for exercising its temporary discretion

in conformity with congressional intent. In the Department's judgment,

a carefully crafted regime incorporating both case-by-case discretion

and, where appropriate, clear, uniform rules for detention by category,

best achieves that goal.

The Department has retained the structure of the proposed rule,

including its mandatory detention categories, despite the commenters'

concern that the rule encroaches on the authority of immigration judges

and lacks the flexibility of a universal case-by-case approach. The

final rule preserves a wide area of discretion for Service and EOIR

decision makers, but defines limited situations in which a criminal

alien's conduct warrants a per se rule of detention. Case-by-case

discretion remains overwhelmingly the general rule. Per se rules are

drawn narrowly, and only where, in the carefully considered judgment of

the Attorney General, the danger of an erroneous release is

sufficiently grave, and the danger of unwarranted detention during

proceedings sufficiently minimal, as to tip the balance in favor of

such a rule. See Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970)

(Agency appropriately exercises discretion where it ``determines

certain conduct to be so inimical to the statutory scheme that all

persons who have engaged in it shall be ineligible for favorable

consideration, regardless of other factors that otherwise might tend in

their favor.'').

The Department disagrees with comments suggesting that the TPCR

require case-by-case adjudication for all ``lawfully admitted''

criminal aliens. The TPCR, by their terms, grant discretion to the

Attorney General to consider certain categories of criminal aliens for

release. It does not specify that that discretion be exercised by

adjudication rather than by rulemaking. ``It is a well-established

principle of administrative law that an agency to whom Congress grants

discretion may elect between rulemaking and ad hoc adjudication to

carry out its mandate.'' Yang v. INS, 70 F.3d 932, 936 (9th Cir. 1996)

(citing American Hosp. Assoc. v. NLRB, 499 U.S. 606, 611-13 (1991);

NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974)). Agencies may

resolve matters of general applicability through the promulgation of

rules ``even if a statutory scheme requires individualized

determination * * * unless Congress has expressed an intent to withhold

that authority.'' American Hosp., 499 U.S. at 613; see also Fook Hong

Mak, 435 F.2d at 731 (``(I)t is fallacious to reason that because

Congress prevented the Attorney General from exercising any discretion

in favor of those groups[] which Congress had found to have abused the

privileges accorded them, it meant to require him to exercise it in

favor of everyone else on a case-by-case basis even if experience

should convince him

[[Page 27443]]

of the existence of another group with similar potentialities or

actualities of abuse.'' (emphasis in original)).

Reviewing courts have upheld the Department's rulemaking in this

area in light of these principles of administrative law. For example,

in Reno v. Flores, 507 U.S. 292 (1993), the Supreme Court upheld a rule

categorically precluding the release of detained juveniles not able to

have either a legal guardian or one of several listed relatives assume

custody. The Court held the rule to be a permissible exercise of the

Attorney General's discretion, because it rationally advanced a

legitimate governmental objective. Id. at 306. Similarly, in Yang, the

Ninth Circuit upheld a rule categorically denying asylum, as a matter

of discretion, to aliens ``firmly resettled'' prior to arrival in the

United States. In Fook Hong Mak, the Second Circuit upheld a regulation

barring, again in the exercise of the Attorney General's discretion,

any alien transiting the United States without a visa from adjusting

status under section 245 of the Act. Cf. Anetekhai v. INS, 876 F.2d

1218, 1223 (5th Cir. 1989) (Congress may require all aliens who marry

citizens after the institution of deportation proceedings to reside

outside United States for 2 years without opportunity to demonstrate

bona fides of marriage.)

``There is not doubt that preventing danger to the community is a

legitimate regulatory goal.'' United States v. Salerno, 481 U.S. 739,

747 (1987). Preventing abscondment by removable criminal aliens, and

doing so in a way that minimizes waste of the Service's scarce

enforcement resources and promotes consistent application of the law,

are also legitimate goals. This rule exercises a well-established

rulemaking authority of the Attorney General, in an area of ``sovereign

prerogative, largely within the control of the executive and the

legislative, `` Landon v. Plasencia, 459 U.S. 21, 34 (1982).

General Rules Versus Ad Hoc Adjudication for Permanent Resident

Aliens

Several commenters emphasized the special status of permanent

resident aliens. That status entails certain rights with regard to

removal proceedings, see Landon v. Plasencia, supra, but does not

prohibit Congress or the Attorney General from establishing categories

of criminal or terrorist permanent resident aliens whose crimes or

conduct evidence a danger to the community or a flight risk

sufficiently serious to require detention.

Nevertheless, the Department has long maintained, and continues to

maintain, a policy of special care with regard to procedural

protections for permanent resident aliens. This rulemaking does not

depart from that tradition. Permanent resident aliens retain the full

panoply of rights and privileges in removal proceedings. The final rule

affords a full discretionary custody determination to nearly all

permanent resident aliens during such proceedings, and makes exceptions

only in the extreme circumstances specified in Sec. 236.1(c)(5).

The circumstances covered by Sec. 236.1(c)(5) of the proposed rule

uniformly present compelling indicia of flight risk and danger to the

community. First, to be subject to the TPCR, an alien must have a

serious criminal conviction constituting a basis for removal from the

United States. (Indeed, not all crimes constituting grounds for removal

trigger the TPCR.) Second, in order to be subject to mandatory

detention, a permanent resident alien must either (1) have escaped or

attempted to escape from a prison or other lawful government custody;

(2) have fled at high speed from an immigration checkpoint; or (3) have

been convicted of one of the crimes specified in

Sec. 236.1(c)(5)(i)(A). The specified crimes include murder, rape,

sexual abuse of a minor, trafficking in firearms, explosives, or

destructive devices, certain other explosive materials offenses,

kidnaping, extortion, child pornography, selling or buying of children,

slavery, treason, sabotage, disclosing classified information, and

revealing the identity of undercover agents.

Further, to address the concerns raised by commenters concerning

procedural protections for permanent residents, the Department has also

modified the final rule in three ways as it applies to permanent

residents. First, the final rule requires that an alien, including one

admitted as a nonimmigrant, receive a sentence (or sentences in the

aggregate) of at least 2 years, not including portions suspended, in

order to trigger the requirements of Sec. 236.1(c)(5). Permanent

residents with less than the required sentence of 2 years will be

eligible for an individualized custody determination; other lawfully

admitted aliens with less than the required sentence will be considered

under Sec. 236.1(c)(4). Second, the final rule will exempt from

Sec. 236.1(c)(5) permanent residents who have remained free of

convictions, immigration violations, and the like for an uninterrupted

period of 15 years prior to the institution of proceedings (not

including any periods of incarceration or detention).

Finally, the final rule has been revised to provide an

individualized custody determination to former permanent residents

subject to the TPCR who have lost that status through a final order of

deportation under former section 242 of the Act, and have been in

Service custody pursuant to the final order for six months. The

district director's decision may be appealed to the Board of

Immigration Appeals under existing procedures. It is expected that

releases in this category of final-order criminal cases will be rare,

but the authority has been incorporated for use in compelling

circumstances. Similar authority exists under section 241 of the Act

for removal cases commenced on or after April 1, 1997. These three

modifications will further ensure adequate procedural safeguards for

the custody of permanent resident aliens (and aliens challenging the

loss of such status through the prescribed jurisdictional channels).

It is only within the extremely narrow range of offenses specified

in the proposed rule, further narrowed by the aforementioned

modifications, that the final rule requires detention of permanent

resident aliens without discretionary release consideration. The

constitutional concerns expressed by the commenters focus, therefore,

on this very limited class of cases, and generally rest on the claim

that due process prohibits Congress and the Attorney General from

mandating the detention of any class of permanent resident aliens,

regardless of the character of their criminal or terrorist offenses.

The Department disagrees with this position.

The Supreme Court has affirmed much broader administrative

authority over detention of convicted criminals even in areas of law

not informed by the ``plenary power'' doctrine. Individuals convicted

of a crime have necessarily received all the process required by the

criminal justice system; they have been convicted on the basis of

either a voluntary guilty plea or a finding of guilt beyond a

reasonable doubt, with opportunity for appeal and collateral habeas

corpus challenge. In this context, the Supreme Court has upheld a

general congressional delegation of sentencing authority to an

independent agency within the Judicial Branch. Mistretta v. United

States, 488 U.S. 361 (1989). If it is permissible for an agency to

subject a U.S. citizen, upon conviction, to a mandatory sentence

without individualized discretionary consideration, it would seem even

more clearly permissible for the Attorney General to require custody of

a narrow

[[Page 27444]]

class of convicted criminal aliens without individualized discretionary

consideration during the ensuing proceedings to effect their removal.

Cf. Jone v. United States, 463 U.S. 354, 364-65 (1983) (``The fact that

a person has been found, beyond a reasonable doubt, to have committed a

criminal act certainly indicates dangerousness.'') (Approving civil

commitment, based on insanity plea in criminal proceeding, for 50 days

without individualized hearing). Indeed, the power upheld in Mistretta

is far broader than that asserted here, applying to U.S. citizens and

criminal defendants, both of whom enjoy extensive constitutional rights

and procedural protections beyond those afforded to criminal aliens in

civil removal proceedings. See Mathews v. Diaz, 426 U.S. 67, 79-80

(1976) (``In the exercise of its broad power over naturalization and

immigration, Congress regularly makes rules that would be unacceptable

if applied to citizens.''); INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-

40 (1984) (cataloguing constitutional procedural protections guaranteed

to criminal defendants but not to aliens in deportation proceedings).

The doctrine of plenary power bolsters this conclusion. `` `For

reasons long recognized as valid, the responsibility for regulating the

relationship between the United States and our alien visitors has been

committed to the political branches of the Federal Government.' ''

Flores, 507 U.S. at 305 (quoting Mathews v. Diaz, supra, at 81); accord

United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982) (``The

power to regulate immigration--an attribute of sovereignty essential to

the preservation of any nation--has been entrusted by the Constitution

to the political branches of the Federal Government.''). `` `(O)ver no

conceivable subject is the legislative power of Congress more

complete.' '' Flores, 426 U.S. at 305 (quoting Fiallo v. Bell, 430 U.S.

787, 792, (1977); Oceanic Steam Navig. Co. v. Stranahan, 214 U.S. 320,

339 (1909)).

Accordingly, an immigration law is constitutional if it is based

upon a ``facially legitimate and bona fide reason.'' Fiallo, 430 U.S.

at 794-95; Kleindienst v. Mandel, 408 U.S. 753, 770 (1972); Garcia v.

INS, 7 F.3d 1320, 1327 (7th Cir. 1993). ``Once a facially legitimate

and bona fide reason is found, courts will neither look behind the

exercise of discretion, nor test it by balancing its justification

against the constitutional interest asserted by those challenging the

statute.'' Campos v. INS, 961 F.2d 309, 316 (1st Cir. 1992) (citing

Fiallo, 430 U.S. at 794-95). Courts have applied this deferential test

to sustain the constitutionality of one of the TPCR's predecessor

mandatory detention statutes as applied to permanent residents, Davis,

749 F. Supp. at 50; Morrobel, 744 F. Supp. at 728, and the Supreme

Court has applied a similar test in its most recent case addressing

mandatory detention, Flores, 507 U.S. at 306 (upholding juvenile alien

detention regulation as ``rationally advancing some legitimate

governmental purpose'').

Congress' plenary power over immigration extends to all non-

citizens, including permanent resident aliens. Aliens

[w]hen legally admitted * * * have come at the Nation's invitation,

as visitors or permanent residents, to share with us the

opportunities and satisfactions of our land * * * . So long,

however, as aliens fail to obtain and maintain citizenship by

naturalization, they remain subject to the plenary power of Congress

to expel them under the sovereign right to determine what

noncitizens shall be permitted to remain within our borders.

Carlson, 392 U.S. at 534 (upholding immigration detention of permanent

resident alien); accord Shaughnessy v. United States ex rel. Mezei, 345

U.S. 206 (1953) (affirming detention of returning permanent resident

alien); Harisiades v. Shaughnessy, 342 U.S. 580, 587-88 (1952) (``That

aliens remain vulnerable to expulsion after long residence is a

practice that bristles with severities. But it is a weapon of defense

and reprisal confirmed by international law as a power inherent in

every sovereign state. Such is the traditional power of the Nation over

the alien [,] and we leave the law on the subject as we find it.'').

Carlson v. Landon, 342 U.S. 524 (1952)--``the leading case

involving a test of the legality of detention under immigration laws,

``Duldulao v. INS, 90 F.3d 396, 400 (9th Cir. 1996)--squarely addresses

the detention of permanent resident aliens. The Supreme Court in

Carlson upheld the Attorney General's detention of permanent residents

under the Internal Security Act based solely on evidence of their

Communist Party membership and support, without requiring any

individualized inquiry into whether such aliens had ever engaged in

specific acts of sabotage or subversion. 342 U.S. at 541. In essence,

the Court allowed active membership in the Communist Party and espousal

of its ideology to be used as proxies for an alien's dangerousness. The

present rule, by contrast, relies on actual egregious crimes or conduct

of convicted criminals as proxies for danger to the community and

flight risk. Cf. Morrobel, 744 F. Supp. at 728 (``If there was no abuse

of discretion in detaining alien communist in Carlson, it can hardly be

improper for Congress, having determined that aliens convicted of

aggravated felonies * * * are a danger to society, to direct the

Attorney General to detain them pending deportation proceedings.'');

Davis, 749 F. Supp. at 51 (analogizing mandatory detention of

aggravated felons to detention upheld in Carlson).

The Supreme Court has recently applied the principles of Carlson to

a regulations mandating immigration detention of certain juveniles by

category. Flores v. Reno, 507 U.S. 292 (1993). Flores recognizes the

power of Congress and the Attorney General to establish detention rules

that single out classes of aliens for differing treatment, without

providing for an individualized determination as to whether each member

of the class warrants such treatment. When Congress or the Attorney

General does so, the only process due is a determination of whether the

alien in fact belongs to the class at issue.

Hence, the Court in Flores held that the Service could, without

violating procedural or substantive due process, enforce a regulation

generally barring the release of juvenile alien detainees, other than

those able to have a legal guardian or certain specified close

relatives take custody. The Court rejected arguments that the Service

had impressibly employed a ``blanket presumption'' that other

custodians were unsuitable, and that the Service must conduct ``fully

individualized'' hearings on their suitability in each case. Id. at

308, 313-14 & n.9. The Service was not required, the Supreme Court

stated, to ``forswear use of reasonable presumptions and generic

rules.'' Id. at 313. The Service needed only make such individual

determinations as were necessary for accurate application of the

regulation, such as ``is there reason to believe the alien

deportable?'', ``is the alien under 18 years of age?'', and does the

alien have an available adult relative or legal guardian?'' Id. at 313-

14.

Like the regulation upheld in Flores, the final rule provides for

an individualized hearing on whether an alien in custody actually falls

within a category of aliens subject to mandatory detention. In

determining or redetermining custody conditions, the district director

or IJ necessarily asks such individualized questions as ``is this

person an alien?'', ``is there reason to believe that this person was

convicted of a crime covered by the TPCR?'', and ``is there reason to

believe that this person falls within a category

[[Page 27445]]

barred from release under applicable law?'' If the district director or

IJ resolves these individualized questions affirmatively, and thus

ascertains that the alien belongs to a class of convicted criminals

barred from release, ``(t)he particularization and individuation need

go no further than this,'' id. at 314. Under Flores, the IJ or district

director may validly enforce the regulatory policy of detaining those

classes of aliens whose release has been determined by Congress or the

Attorney General to present unacceptable risks. Cf. Davis, 749 F.Supp.

at 52 (``The most effective procedures are those already built into

(one of the TPCR's predecessors), namely those procedures which ensure

that the alien is rightfully an `aggravated felon' under the (INA) and

is properly subject to mandatory detention.'').

Plenary power confers upon Congress the undisputed authority to

curtail a criminal permanent resident alien's right to remain in the

United States. See, e.g., Carlson v. Landon, 342 U.S. at 534 (``The

basis for the deportation of presently undesirable aliens resident in

the United States is not questioned and requires no reexamination.'').

Congress has exercised this power in AEDPA and IIRIRA by barring

permanent residents convicted of an aggravated felony from seeking

discretionary relief from removal. The elimination of relief

considerably increases flight risk, see, e.g., Bertrand v. Sava, 684

F.2d 204, 217 n.16 (2d Cir. 1982) (``The fact that the petitioners are

unlikely to succeed on their immigration applications * * * suggests

that they pose * * * a risk (to abscond) if (released).''), and thus

increases the need for detention of aliens barred in this manner from

remaining in the United States.

The congressional power to compel removal includes the power to

effect removal by the necessary use of detention. ``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); see also Carlson v. Landon, 342 U.S. at 538; Wong Wing, 163

U.S. at 235; Doherty, 943 F.2d at 212 (``(F)rom the outset of his

detention, Doherty has possessed, in effect, the key that unlocks his

prison cell * * *. Because deportation was less attractive to him than

his present course and because he had availed himself of the statutory

mechanisms provided for aliens facing deportation, Doherty is subject

to the countervailing measures Congress has enacted to ensure the

protection of national interests.''). If Congress may bar specified

criminal aliens from making discretionary applications to remain in the

United States, it may also bar such criminals from making discretionary

applications for release during removal proceedings, especially when

detention is a necessary adjunct of the removal process, Carlson v.

Landon, supra, and the elimination of relief itself creates

overwhelming incentives to abscond, Bertrand v. Sava, supra.

Despite the broad congressional and executive authority recognized

and consistently reaffirmed over the past century by the Supreme Court,

several district courts have held mandatory detention statutes

unconstitutional under the Due Process Clause of the Fifth Amendment.

See, e.g., St. John v. McElroy, 917 F. Supp. 243, 247 (S.D.N.Y. 1996).

In the Department's view, these district courts have misapprehended the

law of immigration detention, and have failed to defer to Congress and

the Executive in matters of immigration as required by the Supreme

Court's teachings.

Some of the district court cases err in applying to immigration

detention the standard for pre-trial criminal bail determinations

articulated in United States v. Salerno, 481 U.S. 739, 747-51 (1987).

See Kellman v. District Director, 750 F. Supp. 625, 627 (S.D.N.Y.

1990); Leader v. Blackman, 744 F. Supp. 500, 507 (S.D.N.Y. 1990). The

Supreme Court, however, has rejected the extension of Salerno in a

post-conviction context. Hilton v. Braunskill, 481 U.S. 770, 779 (1987)

(``[A] successful (state) habeas petitioner is in a considerably less

favorable position than a pretrial arrestee, such as the respondent in

Salerno, to challenge his continued detention pending appeal. Unlike a

pretrial arrestee, a state habeas petitioner has been adjudged guilty

beyond a reasonable doubt * * *.''). Similarly, in Doherty, the Second

Circuit determined that ``a different focus (from criminal bail

standards) must govern the determination of constitutionality of pre-

deportation detention.'' Doherty, 943 F.2d at 210 (citing Dor. v.

District Director, INS, 891 F.2d 997, 1003 (2d Cir. 1989)). In

reviewing the constitutionality of an 8-year detention, Doherty

inquired only into the presence of any bad faith or invidious purpose

in the Service's decision-making process. 943 F.2d at 210-11.

St. John and the other district court cases invalidating mandatory

detention rules as applied to permanent residents generally decline to

apply the ``facially legitimate, bona fied reason'' standard, and

instead engage in a balancing of individual and governmental interests.

The balancing test set forth in Mathews v. Eldridge, 424 U.S. 319

(1976), does not, however, apply in the context of immigration

detention. The Ninth Circuit had applied the Mathews test in this

manner in Flores v. Meese, 942 F.2d 1352, 1364 (9th Cir. 1991). The

Supreme Court reversed, and applied a different test, requiring only

that the challenged regulation ``meet the (unexacting) standard of

rationally advancing some legitimate governmental purpose.'' Flores,

507 U.S. at 306.

Even if a balancing of interests were permitted--under governing

case law, it is not--the paramount interest of the United States in

removing criminal aliens and protecting its citizens form crime would

outweigh any liberty interest that an alien removable from the United

States on criminal grounds could claim. ``[A]n alien's right to be at

liberty during the course of deportation proceedings is circumscribed

by considerations of the national interest,'' and is consequently

``narrow.'' Doherty, 943 F.2d at 208, 209; see also Flores 507 U.S. at

305 (``If we harbored any doubts as to the constitutionality of

institutional custody over unaccompanied juveniles, they would surely

be eliminated as to those juveniles * * * who are aliens.'').

Moreover, because the TPCR apply in removal cases only during

proceedings, and because the Board of Immigration Appeals expedites

detained cases on its docket, the length of an alien's detention under

this rule is necessarily finite. Criminal aliens with an enforceable

final order of removal must be detained and removed within 90 days; if

not removed within that period, such aliens become eligible for

discretionary release consideration. See INA section 241(a). Criminal

aliens ordered deported or removed whose home countries will not accept

repatriation may be considered for release at any time in the

discretion of the Service, and permanent residents who lose that status

through a final order of deportation may generally be considered for

release after six months. These provisions eliminate the possibility of

indefinite detention without discretionary review, and thus avoid

violation of any protected liberty interest.

In contrast to the ``narrow'' liberty interest of aliens removable

on criminal grounds, ``[t]he government's interest in efficient

administration of the immigration laws at the border * * * is weighty.

Further, it must weigh heavily in the balance that control over matters

of immigration is a sovereign prerogative, largely within the control

of the executive and the legislature.'' Landon v. Plasencia, 459 U.S.

21, 34

[[Page 27446]]

(1982). The Government's interest in maintaining the procedures

embodied in the final rule is also ``weighty.'' The detention

requirements for permanent residents single out aliens with egregious

indicia of flight risk and danger to the community. The risk of

recidivism and flight upon release is unquestionably great for these

aliens; the risk of erroneous detention is correspondingly low. The

provisions of the final rule reflect a legislative and executive

judgment that, for the limited classes of criminal permanent resident

aliens specified in the rule, discretionary release poses unacceptable

risks.

Individualized consideration of discretionary release for these

groups would also impose considerable administrative burdens on the

Government. In many instances, bond hearings become an arena of

protracted and costly collateral litigation in their own right, beyond

and apart from the extensive administrative processes for determining

removability, and the criminal justice process. Although the primary

purposes of the final rule are to protect the public and to ensure the

departure of aliens removable on criminal grounds, administrative costs

are a legitimate consideration in determining the best means to achieve

these objectives. Even under the balancing analysis prohibited by

Flores, therefore, these governmental interests would easily outweigh

the ``narrow'' interest of an alien removable on criminal grounds in

making applications to remain at large during proceedings to effect

removal.

The elemental error of Kellman, St. John, and the cases that follow

them lies in their rejection of the Supreme Court's constitutional

deference to Congress and the Executive in matters of immigration. The

Kellman court acknowledges a ``significant degree'' of deference owed

to Congress' substantive decisions regarding deportability, but asserts

that ``the same deference is not mandated when examining the way in

which that deportation is accomplished.''Kellman, 750 F. Supp. at 627.

That assertion finds neither support nor solicitude in the

jurisprudence of the Supreme Court. See, e.g., Flores, supra; Carlson

v. Landon, supra. The respondents in Flores attempted this sort of

distinction, urging the Supreme Court to require individualized

discretionary custody determinations, despite the plenary power

doctrine, as a matter of ``procedural due process.'' 507 U.S. at 308.

The Court's response was unequivocal: ``This is just the `substantive

due process' argument recast in `procedural due process' terms, and we

reject it for the same reasons.'' Id.

In the Department's view, the final rule takes the least

restrictive approach to the detention of permanent residents consistent

with the dictates of public safety and the important public policy of

removing aliens who have committed serious crimes in this country. The

Department is confident that the final rule provides adequate

procedural protections for the custody of permanent resident aliens,

and is aware of no other means of ensuring the requisite level of

protection for the public. This rule draws upon the Department's

experience over time in administering the immigration laws,

incorporates its careful consideration of the individual and public

interests at stake, and reflects its understanding of the will of

Congress. In addressing these concerns, the rule provides needed reform

of current procedures for the detention of aliens, including permanent

resident aliens, who have become subject to removal as a result of

crimes committed in this country.

The Meaning of ``Lawfully Admitted''

For aliens in removal proceedings, the proposed rule construed the

TPCR's term ``lawfully admitted'' by reference to the definition of

``admitted'' in section 101(a)(13) of the Act. Accordingly, the

proposed rule treated returning permanent resident ``applicants for

admission'' as not ``lawfully admitted'' under the TPCR, and hence not

eligible to be considered for release. Several commenters urged that

the Department reconsider this interpretation to recognize an exception

for permanent residents. Permanent residents, even those returning from

abroad, remain ``lawfully admitted for permanent residence'' until

termination of that status by a final administrative order. 8 CFR

1.1(p). One commenter argued, therefore, as follows:

New INA Sec. 101(a)(13) provides that under certain limited

circumstances a lawful permanent resident can be deemed to be

``seeking admission into the United States.'' But this individual

nevertheless remains a lawful permanent resident who is ``lawfully

admitted'' for purposes of discretionary release from detention

under the TPCR. In short, the phrase ``lawfully admitted'' does not

necessarily mean ``is not presently seeking admission.'' Indeed, the

language of Sec. 101(a)(13)--the very provision the INS relies on to

justify its new interpretation (in the proposed rule)--keeps these

concepts distinct.

The Department has carefully considered this and other similar

comments, and will revise its interpretation in the final rule much

along the lines recommended by the commenters.

The final rule will consider an ``arriving alien'' in removal

proceedings to be ``lawfully admitted'' for purposes of the TPCR if

(and only if) the alien remains in status as a permanent resident,

conditional permanent resident, or temporary resident. Accordingly,

such aliens may be considered for parole in the discretion of the

Service.

The TPCR's term ``lawfully admitted'' will apply consistently in

deportation and removal proceedings. In general, an alien who remains

in status as a permanent resident, conditional permanent resident, or

temporary resident will be considered ``lawfully admitted'' for

purposes of the TPCR. Other aliens will be considered ``lawfully

admitted'' only if they last entered lawfully (and are not currently

applicants for admission).

This interpretation of the term ``lawfully admitted'' is not

intended to extend beyond the limited context of the TPCR. Moreover,

under this final rule, a ``lawfully admitted'' alien will in many cases

remain an ``applicant for admission.'' For example, as the Board

recently held in Matter of Collado, Int. Dec. 3333 (BIA 1997), an

arriving permanent resident alien who has committed an offense

described in section 212(a)(2) of the Act remains an ``applicant for

admission'' unless previously granted relief under sections 212(h) or

240A(a) of the Act. The same will be true of an arriving permanent

resident alien who falls within the other exceptions specified in

section 101(a)(13)(C) (i)-(vi) of the Act. Although ``lawfully

admitted'' for purposes of the TPCR during proceedings, such an alien

remains an ``applicant for admission'' and an ``arriving alien,''

charged under section 212 of the Act, and subject solely to the parole

authority of the Service.

Bond Jurisdiction of Immigration Judges

One commenter asserted that the TPCR require the Attorney General

to grant immigration judges bond authority over arriving aliens in

removal proceedings and over aliens in exclusion proceedings. As

explained in the notice of proposed rulemaking, the TPCR do not, in the

Department's view, apply in exclusion proceedings, because they replace

detention provisions applicable in removal and deportation proceedings,

but do not replace the analogous provision applicable in exclusion

proceedings. As regards arriving aliens in removal proceedings, the

TPCR simply confer discretion upon

[[Page 27447]]

the Attorney General, leaving it to the Department to determine which

subordinate officials will exercise custody authority. The Department

has determined that parole authority will remain exclusively with the

Service, as in the past. See generally Shaughnessy v. United States ex

rel. Mezei, 345 U.S. 206 (1953) (affirming Service's decision to detain

returning permanent resident alien); Marcello v. Bonds, 349 U.S. 302

(1955) (rejecting claim that custody decision by Service officer

violates Due Process where Service initiates and prosecutes

proceeding).

Automatic Stay of Certain Criminal Custody Redeterminations To

Preserve Status Quo for Appeal

The proposed rule included a provision allowing the Service to

request an emergency stay of an immigration judge's order redetermining

custody conditions when the Service appeals the custody decision to the

Board of Immigration Appeals. The rule also provided for an automatic

stay of the immigration judge's custody redetermination where the alien

is subject to the TPCR, section 440(c) of AEDPA, or section 236(c) of

the Act, and the district director has set a bond of $10,000 or more

(including outright denial of bond). Both of these provisions were

included as permanent revisions, without regard to the expiration of

the TPCR.

Several commenters objected to the automatic stay provision,

arguing that it encroaches on the authority of immigration judges,

incorporates a criterion (initial bond amount) not adequately

indicative of bail risk, and encourages district directors to set high

bonds to fortify their custody decisions against reversal. The

Department has carefully considered these comments, and will retain the

automatic stay provision in the final rule without modification.

Even accepting that initial bond amounts are an imperfect measure

of bail risk, the automatic stay does not trigger in all cases meeting

the $10,000 threshold. Rather, the $10,000 threshold and the

requirement of a serious criminal offense provide the basis for a

considered determination by the Service to seek an automatic stay in

aid of a custody appeal. Custody appeals are themselves unusual,

undertaken only in compelling cases, and subject to review by

responsible senior officials within the Service. It is expected that

such appeals will remain exceptional, and that Service district

directors will continue to set custody conditions according to their

best assessment of the bail risk presented in each case.

The interests served by the automatic stay are considerable, even

if the provision only occasionally comes into play. A custody decision

that allows for immediate release is effectively final if, as the

Service appeal would necessarily assert, the alien turns out to be a

serious flight risk or a danger to the community. In such a case, the

appeal provides little benefit to the agencies exerting efforts to

effect removal, and less still to the community receiving the dangerous

or absconding alien criminal back into its midst. The automatic stay

provides a safeguard to the public, preserving the status quo briefly

while the Service seeks expedited appellate review of the immigration

judge's custody decision. The Board of Immigration Appeals retains full

authority to accept or reject the Service's contentions on appeal.

Treatment of Criminal Aliens Not Eligible for Relief from Removal

Several commenters objected to the provision in

Sec. 236.1(c)(5)(iv) of the proposed rule requiring detention of

criminal aliens under the TPCR who do not wish to pursue relief from

removal, or who lack eligibility for such relief. The provision

reflects the consideration that such an alien has little incentive to

appear for proceedings, and hence almost always poses a serious bail

risk. Nevertheless, the Department has reconsidered the inclusion of

this provision in Sec. 236.1(c)(5), and will include it instead in

Sec. 236.1(c)(4) of the final rule. Hence, permanent residents and

aliens with old convictions and no subsequent indicia of bail risk will

be eligible to be considered for release even where they lack or

decline to pursue options for relief from removal. The Department would

expect, however, only the most sparing use of this discretionary

authority.

Two commenters objected that bond proceedings during the early

stages of the removal process provide a poor forum to assess

eligibility for relief. The Department understands this concern, and

does not anticipate a conclusive showing of eligibility by the alien at

this stage of proceedings. Rather, the rule reflects the practical

reality that occasions do arise when plainly no relief exists or the

alien does not wish to pursue relief. In those situations,

discretionary release of a criminal alien is generally inappropriate.

Meaning of ``when the alien is released''

One commenter asserted that the TPCR apply only to criminal aliens

released directly from incarceration into Service custody. The

Department has considered this comment, and rejects it for the reasons

stated by the Board of Immigration Appeals in Matter of Noble, Int.

Dec. 3301 (BIA 1997).

Limited Appearances in Bond Proceedings

One commenter requested that the final rule incorporate new

provisions authorizing limited attorney appearances in bond

proceedings, i.e., without obligation to represent the alien in removal

proceedings. The subject matter of this comment concerns the terms of

attorney representation and exceeds the substantive scope of this

rulemaking. The Department remains open, however, to working with

interested individuals and organizations to refine and improve its

regulations in this and other areas within its authority.

Technical and Conforming Amendments

The final rule corrects 8 CFR 3.6(a) to eliminate an outdated

internal cross-reference, and corrects Sec. 3.6(a) and Sec. 236.1(d)(4)

to conform with the final rule's provisions for stays of custody

redeterminations by immigration judges. The final rule also clarifies

the proposed Sec. 236.1(c)(4) by changing the placement of language

excepting permanent resident aliens from the detention requirements of

that paragraph.

Effect on Detention Resources

The Department has taken into consideration the effect of the final

rule on Service detention resources, and expects a management impact.

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 1 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

[[Page 27448]]

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 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 implications to warrant the

preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

This 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

Administrative practice and procedure, Aliens, Immigration.

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. 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, Div. C.

Sec. 3.6 [Amended]

2. In Sec. 3.6, paragraph (a) is amended by revising the reference

to ``242.2(d) of this chapter'' to read ``236.1 of this chapter,

Sec. 3.19(i),''.

3. In Sec. 3.19, paragraph (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 Div. C of Pub. L. 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 Pub. L. 104-208 who

are not ``lawfully admitted'' (as defined in Sec. 236.1(c)(2) 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 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)(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 any of those paragraphs.

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

forth in section 303(b)(3) of Div. C. of Pub. L. 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 Pub. L. 104-132).

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

alien from 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 any of those paragraphs.

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

section, an alien subject to section 303(b)(3)(A) of Div. C of Pub. L.

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 Div. C. of Pub. L. 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 for

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 Pub. L. 104-132), section 303(b)(3)(A)

of Div. C of Pub. L. 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 a Notice of

Service Intent to Appeal Custody Redetermination (Form EOIR-43) with

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

in

[[Page 27449]]

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 Div. C of Pub. L. No. 104-208; 8 CFR part 2.

4. Section 236.1 is amended by:

a. Revising paragraphs (c)(1) and (d)(4);

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

(c)(8) through (c)(11) respectively and by revising newly redesignated

paragraph (c)(11); and by

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

follows:

Sec. 236.1 Apprehension, custody, and detention.

* * * * *

(c) * * *

(1) In general. (i) After the expiration of the Transition Period

Custody Rules (TPCR) set forth in section 303(b)(3) of Div. C of Pub.

L. 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) Paragraph (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 Div. C of Pub.

L. 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)(i) 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 who remains in status as an alien lawfully admitted

for permanent residence, conditionally admitted for permanent

residence, or lawfully admitted for temporary residence is ``lawfully

admitted'' for purposes of this section.

(ii) An alien in removal proceedings, in deportation proceedings,

or subject to a final order of deportation, and not described in

paragraph (c)(2)(i) of this section, is not ``lawfully admitted'' for

purposes of this section unless the alien last entered the United

States lawfully and is not presently an applicant for admission to the

United States.

(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, other than an alien

lawfully admitted for permanent residence, subject to section

303(b)(3)(A) (ii) or (iii) of Div. C. of Pub. L. 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 years'

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 cancelled 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;

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

order of exclusion, deportation, or removal;

(viii) 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; or

(ix) Is described in paragraphs (c)(5)(i)(A), (B), or (C) of this

section but has not been sentenced, including in the aggregate but not

including any portions suspended, to at least 2 years' imprisonment,

unless the alien was lawfully admitted and has not, since the

commencement of proceedings and 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 cancelled 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. (i) A

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

of Pub. L. 104-208 is ineligible to be considered for release if the

alien has been sentenced, including in the aggregate but not including

any portions suspended, to at least 2 years' imprisonment, and the

alien

(A) Is described in section 237(a)(2)(D)(i) or (ii) of the Act (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);

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

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

local, State, or Federal prison, agency, or officer within the United

States.

(ii) Notwithstanding paragraph (c)(5)(i) of this section, a

permanent resident alien who has not, since the commencement of

proceedings and within the 15 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 cancelled as improvidently

issued), may be considered for release under paragraph (c)(3) of this

section.

(6) Unremovable aliens and certain long-term detainees. (i) If the

district director determines that an alien subject to section

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

removed from the United States because the designated country of

removal or deportation will not accept the alien's

[[Page 27450]]

return, the district director may, in the exercise of discretion,

consider release of the alien from custody upon such terms and

conditions as the district director may prescribe, without regard to

paragraphs (c)(2), (c)(4), and (c)(5) of this section.

(ii) The district director may also, notwithstanding paragraph

(c)(5) of this section, consider release from custody, upon such terms

and conditions as the district director may prescribe, of any alien

described in paragraph (c)(2)(ii) of this section who has been in the

Service's custody for six months pursuant to a final order of

deportation terminating the alien's status as a lawful permanent

resident.

(iii) The district director may release an alien from custody under

this paragraph only in accordance with the standards set forth in

paragraph (c)(3) of this section and any other applicable provisions of

law.

(iv) The district director's custody decision under this paragraph

shall not be subject to redetermination by an immigration judge, but,

in the case of a custody decision under paragraph (c)(6)(ii) of this

section, may be appealed to the Board of Immigration Appeals pursuant

to paragraph (d)(3)(iii) of this section.

(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 and the 15-

year period specified in paragraph (c)(5) of this section, no period

during which the alien was detained or incarcerated shall count toward

the total. References in paragraph (c)(6)(i) of this section to the

``district director'' shall be deemed to include a reference to any

official designated by the Commissioner to exercise custody authority

over aliens covered by that paragraph. 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.

* * * * *

(11) An immigration judge may not exercise the authority provided

in this section, and the review process described in paragraph (d) of

this section shall not apply, with respect to any alien beyond the

custody jurisdiction of the immigration judge as provided in

Sec. 3.19(h) of this chapter.

(d) * * *

(4) Effect of filing an appeal. The filing of an appeal from a

determination of an immigration judge or district director under this

paragraph shall not operate to delay compliance with the order (except

as provided in Sec. 3.19(i)), nor stay the administrative proceedings

or removal.

* * * * *

Dated: May 12, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98-13178 Filed 5-18-98; 8:45 am]

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