Early Release for Removal of Criminal Aliens in State Custody Convicted of Nonviolent Offenses

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 241

[INS No. 1848-97]

RIN 1115-AE83

Early Release for Removal of Criminal Aliens in State Custody

Convicted of Nonviolent Offenses

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization

Service (INS) regulations relating to apprehension and removal of

aliens under section 241 of the Immigration and Nationality Act (Act).

This proposed rule establishes an administrative process whereby

criminal aliens in state custody convicted of nonviolent offenses may

be removed prior to completion of their sentence of imprisonment. This

proposed rule will implement the authority contemplated by Congress to

enhance the ability of the United States to remove criminal aliens.

DATES: Written comments must be submitted on or before September 10,

1999.

ADDRESSES: Please submit written comments, in triplicate, to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC

20536, Attn: Public Comment Clerk. To ensure proper handling please

reference INS No. 1848-97 on your 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: Ronald W. Dodson, Senior Special

Agent, Office of Investigations, Immigration and Naturalization

Service, 425 I Street, NW., Room 1000, Washington, DC 20536, telephone

(202) 514-2998. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

Background

On April 24, 1996, President Clinton signed into law the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L.

104-132, 110 Stat. 1214. The AEDPA contained numerous provisions

dealing with criminal aliens, designed to ``enhance the ability of the

United States to deport criminal aliens.'' See Conference Report on S.

735 (H.R. Rept. No. 104-518, dated April 15,

[[Page 37462]]

1996), at page 119 (concernign AEDPA Sec. 441).

Section 438(a) of AEDPA added subsection 242(h)(2) to the Act,

authorizing, but not compelling, the Attorney General to remove certain

aliens convicted of nonviolent offenses prior to the completion of

their sentence of imprisonment.

On September 30, 1996, the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA), Pub. L. 104-208, 110 Stat. 3009, became

law. The provisions formerly contained in section 242(h)(2) of the Act,

as amended by AEDPA, and subsequently further amended by IIRIRA, are

now found in section 241(a)(4)(B) of the Act. Both AEDPA and IIRIRA

contain separate provisions, now incorporated in the Act, which

distinguish between Federal and state prisoners. However, there are

some differences between AEDPA and IIRIRA pertaining to categories of

Federal and state inmates barred from early release. Section 305(a) of

IIRIRA both expands and contracts the classes of offenders eligible for

consideration for early removal under the Act as amended by AEDPA.

Under IIRIRA, aliens in the custody of the state convicted of offenses

defined in section 101(a)(43)(C) or (E) of the Act are ineligible for

early release. Under IIRIRA, alien smuggline is no longer a bar to

eligibility for state inmates.

The statutory provisions distinguish between Federal and state

inmates. Because of the clear distinctions between provisions and

procedures for Federal and state inmates, the two require distinct

regulatory separation. The Department of Justice is giving

consideration to various means for implementing the statute on the

Federal level. This proposed rule addresses state inmates only.

According to section 241(a)(4)(B)(ii), an alien may be removed from

state custody if the chief state official exercising authority with

respect to the incarceration of the alien makes a determination that

the offense is a nonviolent offense, and that removal is in the best

interest of the state. The chief state official must then submit a

written request for the alien's removal to the Attorney General.

Section 438(b) of the AEDPA amended section 276 of the Act, (8

U.S.C. 1326) to require incarceration for the remainder of their

sentence, without parole, of aliens who were released for early removal

pursuant to the provisions of section 438(a) of the AEDPA, and who

reenter the United States without the express permission of the

Attorney General.

Further, section 241(a)(4)(D) of the Act, as amended by IIRIRA,

provides that no cause or claim may be asserted under section 241

against any official of the United States or of any state to compel the

release, removal, or the consideration for release or removal of any

alien.

Procedurally, this proposed regulation provides that in order to

participate a state or its political subdivision must have enabling

legislation authorizing early release of prisoners. Participation in

the program will be contingent on a formal agreement between the state

and the Service in the form of a uniform memorandum of understanding.

The memorandum of understanding may be modified in writing by mutual

consent of the signatories and/or may be canceled by either party upon

30 days' written notice. Only criminal aliens approved by both the

state and the Service as suitable candidates will be released to the

Service for removal. In accordance with the Victim and Witness

Protection Act of 1982 (VWPA) and the Attorney General's Guidelines for

Victim and Witness Assistance, the state will make reasonable efforts

to notify victims of record regarding the early release of criminal

aliens for removal. The state will assist the Service by providing, to

the extent allowed under state law, access to and use of information

contained in the alien's correctional files to assist in the removal of

such criminal aliens. The date of the criminal alien's release will be

coordinated between the Service and the governmental entity

representing the state or its political subdivision. The criminal alien

will remain in the custody of the state until: a final order of removal

is issued, there are no impediments to obtaining travel documents for

the alien, and arrangements have been made to remove the alien. In

order to transfer custody of the criminal alien from the state to the

Service, the Service will notify the state when a final order has been

issued and removal arrangements have been made. At that time the

transfer will take place. If after the transfer of custody, the alien

cannot be removed promptly, the Service will return the alien to the

custody of the state. The state will enter relevant information

relating to such criminal aliens released and removed into its criminal

history records system, which must provide for rapid identification of

such aliens should they reenter or attempt to reenter the United States

or otherwise be encountered by law enforcement personnel. The Service

will also develop and maintain a permanent alien file detailing the

identity of each such criminal alien. The Service will ensure that

fingerprint dispositions are expeditiously forwarded to the Federal

Bureau of Investigation (FBI) for inclusion in the subject's criminal

history record and that the alien's name is forwarded to the National

Crime Information Center (NCIC). The state may submit names for

consideration for removal prior to completion of criminal sentences of

aliens who have committed nonviolent offenses as defined under state

law, except for offenses specifically excluded by Federal statute. The

state will advise such aliens that the release is conditional and the

alien must agree in writing that he/she has been informed that the

criminal sentence(s) has been suspended, not rescinded, and that such

suspended sentence(s) will remain in abeyance for the state to reimpose

should the alien must have admitted and conceded the charges and

factual allegations which form the basis of the removal action, and

must have waived all rights to appeal any order of removal and waived

the right to apply for relief from removal. The criminal alien must

remain outside the United States and agree to refrain from making any

attempt to reenter the United States for the time period statutorily

specified in 8 U.S.C. 1182 (10 years, 20 years, or at any time in the

case of an alien convicted of an aggravated felony), unless the

Attorney General has expressly consented to such alien's reentry. Any

unlawful return to the United States shall constitute a violation of

the conditions of the alien's release and shall result in such alien's

return to the custody of the state for the completion of the alien's

sentence and the alien shall be subject to Federal prosecution. The

state or the Service will notify the other of any encounter with such

alien. If, during the period of any remaining sentence, the criminal

alien applies to the Attorney General for readmission after removal

under this program, and the Service is inclined to grant the request,

the Service will notify the state of that request and provide an

opportunity for the state to note any objection.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has

reviewed this proposed regulation and, by approving it, certifies that

this rule will not have a significant economic impact on a substantial

number of small entities because of the following factors:

This proposed rule will not have a significant economic impact on

small

[[Page 37463]]

entities since it pertains to removal of criminal aliens incarcerated

in state institutions (or a political subdivision thereof). The removal

of these individuals from the United States will not adversely or

materially affect a sector of the economy, cause major increases in

costs or prices for consumers or have other adverse effects on the

economy in terms of productivity, competition, jobs, or the

environment, public health or safety or adversely affect small

government jurisdictions.

Small Business Regulatory Enforcement Fairness Act of 1996

This proposed rule is not a major rule as defined by section 804 of

the Small Business Regulatory Enforcement Fairness Act of 1996. This

proposed 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.

Unfunded Mandates Reform Act of 1995

This proposed 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. The alien's release

under the provisions of this section is conditional. Any violation of

the terms of release will result in a violation of that conditional

release, resulting in a return to state or local custody. State (or

political subdivision thereof) participation in this process is at the

discretion of the state or political subdivision thereof. This rule

does not impose an enforceable duty on state, local, or tribal

governments. Not only is the program voluntary, but the state or

political subdivision derives considerable benefit from participation

in the program. The state or subdivision is enabled to remove

nonviolent offenders from their penal facilities prior to expiration of

sentence. This saves the state or subdivision considerable resources.

Therefore, no actions were deemed necessary under the provisions of the

Unfunded Mandates Reform Act of 1995.

Paperwork Reduction Act of 1995

Section 241.17 of this proposed rule allows states or a political

subdivision thereof to enter into an agreement with the Service for

participation in an early release program for removal of nonviolent

alien offenders in state custody prior to the completion of the alien's

sentence to imprisonment. Some of the provisions in the agreement

contain information collection requirements that are subject to review

by the Office of Management and Budget (OMB) under the Paperwork

Reduction Act of 1995. Therefore, the agency solicits public comments

on the information collection requirement for 30 days in order to:

(1) Evaluate whether the proposed collection of information is

necessary for the proper performance of the functions of the agency,

including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of

the proposed collection of information, including the validity of the

methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to

be collected; and

(4) Minimize the burden of the collection of information on those

who are to respond, including through the use of appropriate automated,

electronic, mechanical, or other technological collection techniques or

other forms of information technology, e.g., permitting electronic

submission of responses.

Since participation on the part of state is voluntary and the

number of states or subdivisions electing to participate is unknown as

is an estimate of the number of eligible nonviolent alien offenders

states would recommend as candidates for early removal, the Service

does not have sufficient data to estimate of the number of hours that

would constitute the total annual reporting burden.

As required by section 3507(d) of the Paperwork Reduction Act of

1995, the Service has submitted a copy of this proposed rule to OMB for

its review of the information collection requirement. Other

organizations and individuals interested in submitting comments

regarding this burden estimate or any aspect of this information

collection requirement, including suggestions for reducing the burden

should direct them to: Office of Information and Regulatory Affairs

(OMB), 725 17th Street, NW, Washington, DC 20503, Attn: DOJ/INS Desk

Officer, Room 10235. The comments or suggestions should be submitted

within 30 days of publication of this rulemaking.

Executive Order 12866

This proposed 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. An assessment of the need for the

regulatory action, an explanation of how the action will meet that

need, an assessment of the potential costs and benefits of the

regulatory action and of any reasonable feasible alternatives, and any

bearing which the regulatory action has on state, local, and tribal

governments in the exercise of their governmental functions has been

submitted to the Office of Management and Budget under section

6(a)(3)(B)-(D).

Executive Order 12612

The regulation proposed herein will not have substantial direct

effect 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. As previously

stated under the Unfunded Mandates Reform Act of 1995, this proposed

rule will save considerable resources of participating states and

subdivisions. Therefore, in accordance with Executive Order 12612, it

is determined that this proposed rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Executive Order 12988 Civil Justice Reform

This proposed rule meets the applicable standards set forth in

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

List of Subjects in 8 CFR Part 241

Administration practice and procedure, Aliens, Immigration.

Accordingly, part 241 of chapter I of title 8 of the Code of

Federal Regulations is proposed to be amended as follows:

PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

1. The authority citation for part 241 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1223, 1227, 1251, 1253, 1255, and

1330; 8 CFR part 2.

2. Section 241.17 is added to read as follows:

[[Page 37464]]

Sec. 241.17 Removal of nonviolent offenders in state custody prior to

the completion of the alien's sentence of imprisonment pursuant to

section 241(a)(4)(B) of the Act.

(a) Authorization. (1) A state or its political subdivision must

have enabling legislation in order to enter into an agreement with the

Service for participation in an early release program. Participation in

the program will be contingent on a formal agreement bearing the

signatures of the Governor of the state or designee and the

Commissioner or designee. In the case of a political subdivision,

participation will be contingent on the signature of the leading

official of the political subdivision and the Commissioner or designee

following formal agreement between the state and the Service. An early

release program for inmates of a state or political subdivision will be

implemented through a Memorandum of Understanding (MOU) developed by

the Service. From the date of final publication in the Federal

Register, requests for consideration under this provision of the Act

should be referred to the chief state official exercising authority

with respect to the confinement of the alien. Any inquiries pending

with the Attorney General or the Service at that time will be referred

to the appropriate state authority.

(2) The uniform MOU will constitute the agreement between the

Service and a state or political subdivision thereof for the removal of

nonviolent alien offenders prior to the completion of the alien's

sentence to imprisonment. The MOU will govern the procedures and

responsibilities of the parties. Specific operational procedures for

implementing the MOU should be negotiated between the appropriate state

officials and Service District Offices. The MOU imposes no limitations

on the discretion of the Attorney General to exercise authority or to

decline to do so with regard to section 241(a)(4)(B) of the Act. The

MOU does not confer any rights on any third party.

(b) Agreement provisions. The MOU shall include the following

provisions:

(1) Only criminal aliens approved by both agencies as suitable

candidates will be released to the Service for removal. The Service

District Office will review the state's written submission. A query of

the National Crime Information Center (NCIC) will be performed to

determine if there are outstanding wants or warrants in other

jurisdictions. Notification will be provided to the Department of

Justice Office of International Affairs of those aliens being

considered for early release to provide that office with the

opportunity to note any objection. The Service will indicate by return

document which aliens the Service finds appropriate for the program.

The decision of the Service District Office as the Attorney General's

delegate is not reviewable.

(2) In accordance with the Victims and Witness Protection Act of

1982 (VWPA) and the Attorney General's Guidelines for Victim and

Witness Assistance, the state will make reasonable efforts to notify

victims of record at the time of request for consideration under this

section regarding the early release of the alien for removal and the

nature and intent of the removal of nonviolent alien offenders prior to

the completion of their sentence to imprisonment.

(3) The state will certify that there are no detainers or other

litigation involving the alien as a defendant or witness in any

criminal proceeding outstanding at the time of the request for

consideration for early release.

(4) The governmental entity representing the state or its political

subdivision will assist the Service and its agents by providing, to the

extent allowed under state law, access to and use of documents,

materials and information contained in the aliens' correctional files

for the purpose of assisting the Service in its efforts to remove such

criminal aliens from the United States.

(5) The date that criminal aliens are to be released to the Service

for removal will be coordinated between the Service and the

governmental entity representing the state or its political

subdivision. Any criminal alien determined eligible for removal

pursuant to section 241(a)(4)(B) of the Act will remain in the custody

of the governmental entity representing the state or its political

subdivision unit:

(i) A final order of removal is issued against such alien by an

Immigration Judge or through any other procedure authorized by law,

(ii) There are no impediments to obtaining travel documents, and

(iii) Arrangements have been made to remove the alien.

(6) In order to transfer custody of the criminal alien from the

state to the Service, the Service will notify the governmental entity

representing the state or its political subdivision when the final

order of removal is issued and the consular official has assured the

Service that a travel document will be immediately issued upon

presentation of the criminal alien. The Service will then maintain

custody of such alien in a secure environment until such time as the

Service effectuates the alien's removal from the United States. If,

after the Service has accepted custody of a criminal alien released by

the governmental entity representing the state or its political

subdivision for removal, the alien cannot be promptly removed from the

United States, the Service will return that alien to the custody of the

state. The state must accept such alien into its custody unless

prevented from doing so by order of a court of competent jurisdiction

or other lawful authority.

(7) The state will enter relevant information relating to criminal

aliens released and removed subject to the provisions of section

241(a)(4)(B) of the Act into its criminal history records system. Such

system must provide for the rapid identification of any alien who is

released and removed subject to the provisions of section 241(a)(4)(B)

of the Act should such alien reenter or attempt to reenter the United

States and/or otherwise be encountered by law enforcement personnel.

The Service will develop and maintain a permanent alien file detailing

the identity of each criminal alien subject to treatment under section

241(a)(4)(B) of the Act, including his or her fingerprints and

photograph, and executed warrant of removal, for the purpose of

allowing rapid identification of any alien released for purposes of

removal under section 241(a)(4)(B) of the Act, should such alien

reenter or attempt to reenter the United States.

(8) The Service will also ensure that fingerprint dispositions are

expeditiously forwarded to the Federal Bureau of Investigation for

inclusion in the subject's criminal history record and that the alien's

name is forwarded to the National Crime Information Center (NCIC).

(9) The state may submit names for consideration for removal prior

to completion of criminal sentences of aliens who have committed

nonviolent offenses as defined under state law, except for the

following offenses specifically excluded by section 241(a)(4)(B) of the

Act: illicit trafficking in firearms or destructive devices (as defined

in 18 U.S.C. 921), or in explosive materials (as defined in 18 U.S.C.

841(c)); an offense described in 18 U.S.C. 842(h) or (i) or 18 U.S.C.

844(d), (e), (f), (g), (h), or (i) (relating to explosive materials

offenses); 18 U.S.C. 922(g)(1), (2), (3), (4), (5), (j), (n), (o), (p),

or 18 U.S.C. 924(b) or (h) (relating to firearms offenses); or an

offense described in section 5861 of the Internal Revenue Code of 1986

(relating to firearms offenses).

(10) Any alien being considered for early release pursuant to

section 241(a)(4)(B) of the Act shall be advised

[[Page 37465]]

by the governmental entity representing the state or its political

subdivision that the release is conditional and the alien must agree in

writing that the following special conditions have been met:

(i) The criminal alien has been informed that any state action to

release the alien from incarceration pursuant to section 241(a)(4)(B)

of the Act will only suspend, not rescind, the alien's remaining

criminal sentence(s) and any related period(s) of incarceration, and

that such suspended sentence(s) will be tolled and remain in abeyance

to be reinstated should the alien breach any of the express conditions

of the executive release order.

(ii) The criminal alien has a final order of removal as required

under section 241(a)(4)(B) of the Act. Further, the alien must have

admitted and conceded the charges and factual allegations which form

the basis of the removal action, and must have waived all rights to

appeal any order of removal issued pursuant to authorized procedures.

The alien must have waived any right to pursue an appeal of the order

of removal, or to seek any relief therefrom, and must further waive any

possible challenge to removal under domestic or international law,

including but not limited to asylum, withholding of removal, and

protection from ``refoulement'' under the 1951 Convention and the 1967

Protocol Relating to the Status of Refugees or under the Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.

(iii) The criminal alien has withdrawn any pending appeal of the

underlying criminal conviction and sentence, and waived his or her

right to pursue such appeal if the time for filing has not yet expired.

(iv) The criminal alien must cooperate fully with the Service in

connection with execution of any final order of removal, particularly

with respect to producing travel documents or other evidence of

nationality.

(v) The criminal alien must remain outside the United States and

agree to refrain from making any attempt to reenter the United States

for the period specified by section 212 (a)(9)(A)(ii) of the Act (8

U.S.C. 1182(a)(9)(A)(ii)), as amended, in that an alien who has been

ordered removed or departed while an order of removal was outstanding

is ineligible to seek admission within 10 years of the date of such

alien's departure or removal, or within 20 years of such date in the

case of a second or subsequent removal, or at any time in the case of

an alien convicted of an aggravated felony, unless the Attorney General

has expressly consented to such alien's reentry. Any unlawful return to

the United States shall constitute a violation of the alien's

conditions of release and shall result in such alien's return to the

custody of the state (or political subdivision thereof) for the

completion of the alien's sentence and the alien will be subject to

Federal prosecution.

(ii) A criminal alien granted early release for removal, who is

removed but subsequently illegally returns to the United States may be

subject to Federal prosecution. Either party to this agreement shall

notify the other of any encounter with such alien. The Attorney General

will determine whether the alien should be prosecuted for an unlawful

reentry pursuant to section 276 of the Act. After the Attorney General

determines whether to prosecute the alien for reentry after removal and

any Federal action or period of Federal incarceration has concluded,

the state will assume custody of such alien and bear all costs

associated with the transportation and escort back to the state or

locality. The state (or political subdivision thereof) will hold the

alien in state custody to serve the balance of the sentence of

imprisonment in an appropriate state facility at state expense.

(12) If, during the period of any remaining sentence, the criminal

alien applies to the Attorney General for readmission after removal

under this program, and the Service is inclined to grant the request,

the Service will notify the state of that request and provide an

opportunity for the state to note any objection by the victim or other

state authority.

(13) The MOU may be modified in writing at any time by mutual

consent of the signatories and/or may be canceled by either party upon

30 days written notice. Pursuant to section 241(a)(4)(D) of the Act, as

amended by IIRIRA, no cause or claim may be asserted under section 241

against any official of the United States or of any state to compel the

release, removal, or consideration for release or removal of any alien

and all MOU's will so state.

Dated: July 2, 1999.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 99-17563 Filed 7-9-99; 8:45 am]

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