[Federal Register: November 14, 2001 (Volume 66, Number 220)]
[Rules and Regulations]
[Page 56967-56982]
From the Federal Register Online via GPO Access [http://www.access.gpo.gov/]
[DOCID:fr14no01-1]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
[[Page 56967]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 3 and 241
[INS No. 2156-01; AG Order No. 2533-2001]
RIN 1115-AG29
Continued Detention of Aliens Subject to Final Orders of Removal
AGENCY: Immigration and Naturalization Service and Executive Office for
Immigration Review, Justice.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule amends the custody review process governing the
detention of aliens who are the subject of a final order of removal,
deportation or exclusion, in light of the decision of the U.S. Supreme
Court in Zadvydas v. Davis, 533 U.S. ____, 121 S. Ct. 2491 (2001). This
rule adds new provisions to govern determinations by the Immigration
and Naturalization Service (Service) as to whether there is a
significant likelihood that an alien will be removed from the United
States in the reasonably foreseeable future, and whether there are
special circumstances justifying the continued detention of certain
aliens. This rule also makes conforming changes to the existing post-
removal-period detention regulations, and provides procedures to
implement the statutory provision for the extension of the removal
period beyond 90 days if the alien conspires or acts to prevent his or
her removal or fails or refuses to assist the Service in obtaining
documents necessary to effect his or her removal.
DATES: Effective date: This interim rule is effective November 14,
2001. Comment date: Written comments must be submitted on or before
January 14, 2002.
ADDRESSES: Please submit written comments to the Director, Policy
Directives and Instructions Branch, Immigration and Naturalization
Service, 425 I Street NW., Room 4034, Washington, DC 20536. To ensure
proper handling, please reference INS No. 2156-01 on your
correspondence. The public may also submit comments electronically to
the Service at insregs@usdoj.gov. When submitting comments
electronically, please make sure that you include INS No. 2156-01 in
the subject field. Comments are available for public inspection at the
above address by calling (202) 514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Joan S. Lieberman, Office of the
General Counsel, Immigration and Naturalization Service, 425 I Street
NW., Room 6100, Washington, DC 20536, telephone (202) 514-2895 (not a
toll-free call). For matters relating to the Executive Office for
Immigration Review: Chuck Adkins-Blanch, General Counsel, Executive
Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls
Church, VA 22041, telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION:
I. Background
Section 241(a) of the Immigration and Nationality Act (the Act), 8
U.S.C. 1231(a), authorizes the Attorney General to detain aliens who
are subject to final orders of removal, in order to effectuate their
removal from the United States. Section 241(a)(1) of the Act provides a
general rule that such aliens shall be removed within the 90-day
``removal period,'' commencing on the date the removal order becomes
administratively final, the date that the Service is able to execute
the removal order after completion of any judicial review (if the court
orders a stay of removal), or the date the alien is released from
criminal incarceration, whichever is later. Detention of aliens during
the pendency of removal proceedings is governed by Section 236 of the
Act, 8 U.S.C. 1226, including the mandatory detention provisions
contained in Section 236(c).
Section 241(a)(2) of the Act governs detention of aliens during the
statutory removal period; it generally mandates detention of criminal
and terrorist aliens during that period. Section 241(a)(1)(C) of the
Act also provides that the removal period ``shall be extended,'' and an
alien subject to a final order of removal may remain in detention
during such extended period, if the alien fails or refuses to make
timely application for travel or other necessary documents for the
alien's departure, or if the alien conspires or acts to prevent the
alien's removal. The provisions of section 241(a)(2) of the Act
continue to apply until expiration of the removal period, as extended,
including provisions that mandate detention of certain criminal and
terrorist aliens.
After expiration of the removal period, section 241(a)(6) of the
Act grants authority to the Attorney General to continue the detention
of:
Any inadmissible alien;
Any alien who is deportable under subsections (a)(1)(C),
(a)(2), or (a)(4) of section 237 of the Act, 8 U.S.C. 1227; and
Any alien whom the Attorney General determines is a danger
to the community or is unlikely to comply with the removal order.
The Department's existing standards for detention or release of
aliens who are the subject of a final order of removal are set forth in
8 CFR 241.4. That section provides automatic administrative custody
review procedures for aliens who are the subject of an administratively
final order of removal, deportation, or exclusion. Those procedures
provide for multi-level reviews scheduled at regular intervals.
District directors have initial responsibility for custody decisions.
Detention authority then shifts to the INS Headquarters Post-order
Detention Unit (HQPDU) pursuant to standards set forth in the
regulation regarding the ability to effect the alien's removal from the
United States. The review process provides detained aliens with
numerous opportunities to present evidence in support of release. In
this rule, the discussion of the provisions of Sec. 241.4 concerns
detention of aliens subject to a final order of removal, after
expiration of the removal period.
What Is the Scope of the Supreme Court's Decision?
In Zadvydas v. Davis, 533 U.S. ____, 121 S. Ct. 2491 (2001), the
Supreme Court held that section 241(a)(6) of the Act generally permits
the detention of aliens who have been admitted to the United States and
who are under a final order of removal, only for a period reasonably
necessary to bring about
[[Page 56968]]
their removal from the United States. The Court held that detention of
such aliens beyond the statutory removal period, for up to six months
after entry of a final removal order, is ``presumptively reasonable.''
121 S. Ct. at 2504-05. After six months, if an alien can provide ``good
reason to believe that there is no significant likelihood of removal in
the reasonably foreseeable future,'' the government must rebut the
alien's showing in order to continue the alien in detention.
In cases where there is a significant likelihood that the alien
will be removed in the reasonably foreseeable future, the Supreme
Court's decision did not question the Service's authority to detain an
lien under section 241(a)(6) of the Act beyond the six-month period,
pursuant to the existing detention standards in 8 CFR 241.4. The
decision does not require that an alien under a final order of removal
be automatically released after six months if he has not yet been
removed. Instead, the Court stated: ``To the contrary, an alien may be
held in confinement until it has been determined that there is no
significant likelihood of removal in the reasonably foreseeable
future.'' Id., at 2505. What counts as the ``reasonably foreseeable
future'' in this context must take account of the length of the alien's
prior post-removal prior detention. Id.
In addition, the Supreme Court acknowledged that there may be cases
involving ``special circumstances,'' such as those involving terrorists
or specially dangerous individuals, in which continued detention may be
appropriate even if removal is unlikely in the reasonably foreseeable
future. Id. at 2499.
The Supreme Court's ruling does not govern those aliens who are
legally still at our borders, as arriving aliens under section 235 of
the Act, 8 U.S.C. 1225, including those who have been paroled into the
country pursuant to section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5)
(such as the Mariel Cubans, who are treated as still seeking
admission). ``The distinction between an alien who has effected an
entry into the United States and one who has never entered runs
throughout immigration law. * * * It is well established that certain
constitutional protections available to persons inside the United
States are unavailable to aliens outside of our geographic borders.''
121 S. Ct. at 2500. Of particular relevance here, such aliens do not
have due process rights to enter or to be released into the United
States, and their continued detention may be appropriate to accomplish
the statutory purpose of preventing the entry of a person who has, in
contemplation of the law, been stopped at the border. Furthermore, the
provisions in section 235 of the Act, governing arriving aliens, and
section 212(d)(5) of the Act, governing the exercise of the parole
authority, along with the inherent authority of the sovereign to
control its borders, furnish additional authority for the detention and
redetention of arriving aliens, including aliens granted immigration
parole.
II. Implementation of the New Review Process
The Supreme Court's decision will require the Service, drawing, as
appropriate, on the expertise of the Department of State, to assess the
likelihood of the removal of thousands of aliens to many different
countries. The Court emphasized in its decision the need to ``take
appropriate account of the greater immigration-related expertise of the
Executive Branch, of the serious administrative needs and concerns
inherent in the necessarily extensive Service efforts to enforce this
complex statute, and the Nation's need `to speak with one voice' in
immigration matters.'' 121 S. Ct. at 2504. The Court also stressed the
need for courts to give expert Executive Branch ``decision making
leeway,'' for deference to ``Executive Branch primacy in foreign policy
matters,'' and for uniform administration. Id. at 2504-05.
This rule institutes procedures by which the Executive Branch will
make the necessary judgments regarding the likelihood of removal, in a
regular and consistent manner, based on a review of its experience with
the country in question, the evidence submitted by the particular
alien, and other relevant evidence.
The Executive Branch has the knowledge and expertise essential to
perform successful its responsibilities to enforce the return of
criminal and other removable aliens to the country to which removal was
ordered or to a third country where possible. Generally, the United
States requests and receives travel documents from most nations without
a formalized written agreement. The Service routinely works in close
consultation with consular officers of foreign countries on
repatriation issues. Formal repatriation agreements are uncommon.
Efforts to secure travel documents and normalize immigration
relations with other governments are not static in nature. Efforts to
achieve comprehensive solutions and joint cooperation with all nations
are on-going, and seeking removal in individual cases is a continuous
process as well. Even where experience has demonstrated that obtaining
travel documents from certain countries is difficult, the Executive
Branch continues with diplomatic and other efforts to forge normalized
immigration relations with other governments and to pursue removal
efforts in individuals cases in the meantime.
Indeed, while the Service's experience has varied significantly
from country to country, it has been successful in removing aliens,
even criminal aliens, to all countries.
Additionally, the alien and his or her family may be able to secure
travel documents or removal to a third country in cases where the
Service has been unable to effect removal. The removal process is a
shared responsibility among the alien, the Executive Branch and the
country of return. In several respects, as discussed in more detail
below, the existing provisions of the Act codify the obligation of the
alien to cooperate with the removal effort an to comply with requests
from the Service to obtain travel documents or to take other necessary
steps to effect the alien's removal from the United States.
What Changes Does This Rule Make?
In light of the Supreme Court's decision in Zadvydas, this rule
revises the Department's regulations by adding a new 8 CFR 241.13,
governing certain aspects of the custody determination of a detained
alien after the expiration of the removal period. Specifically, the
rule provides a process for the Service to make a determination as to
whether there is a significant likelihood that the alien will be
removed in the reasonably foreseeable future.
Except as provided in this new Sec. 241.13, the existing detention
standards in Sec. 241.4 will continue to govern the detention or
release of aliens who are subject to a final orders of removal. Thus,
aliens who are determined not to be a danger to the community or a
flight risk may be released under Sec. 241.4 regardless of whether
there is a significant likelihood of removal.
If the Service determines under the procedures of Sec. 241.13 that
there is no significant likelihood of removal in the reasonably
foreseeable future, then the Service generally will be required to
release the alien, under appropriate conditions of supervision intended
to protect the public safety and to ensure the Service's continued
ability to remove the alien should that become possible in the future.
In the alternative, in appropriate cases, the Service may choose to
invoke the provisions of Sec. 241.14, as added by this rule, in order
to justify continued detention of a
[[Page 56969]]
particular alien because of special circumstances, of the sort
discussed in the Supreme Court's decision in Zadvydas, even though the
alien's removal is not significantly likely in the reasonably
foreseeable future. In either case, while the Service is evaluating
whether or not there is a significant likelihood of removal in the
reasonably foreseeable future under Sec. 241.13, or while the Service
is pursuing procedures for continued detention of an alien under
Sec. 241.14 on account of special circumstances, the Service will be
able to continue an alien in detention pending the conclusion of those
proceedings as provided for in this rule.
This rule also makes conforming amendments to the existing
detention standards in Sec. 241.4 to make appropriate reference to the
new procedures for determining whether there is a significant
likelihood of removing an alien in the reasonably foreseeable future.
This rule does not alter either the substantive standards under
Sec. 241.4 for the Service to determine whether to release or detain
aliens because of risk of flight or danger to the community, or the
procedures for the Service to conduct such custody reviews (first by
the district director and then by the Service's HQPDU). Thus, aliens
who are determined not to be a danger to the community or a flight risk
may be released under Sec. 241.4 regardless of whether there is a
significant likelihood of removal.
The custody review provisions of Sec. 241.4 will continue to apply
to aliens who are subject to final orders of removal, including aliens
who have requested a review under Sec. 241.13. However, after the
Service has made a determination in a particular case that removal is
not significantly likely, the alien's detention will be governed by
Sec. 241.13 rather than by Sec. 241.4. If the Service subsequently
determines, because of a change in circumstances, that the Service is
now likely to be able to remove the alien in the reasonably foreseeable
future, then the provisions of Sec. 241.4 will once again provide the
governing standards for the continued detention of the alien. The
detention standards of Sec. 241.4 will also apply to aliens who are
continued in detention under Sec. 241.4 because of special
circumstances.
This rule also amends Sec. 241.4 to add a new procedural provision
to implement the statutory directive for extension of the removal
period if the alien ``fails or refuses to make timely application in
good faith for travel or other documents necessary to the alien's
departure or conspires or acts to prevent the alien's removal subject
to an order of removal,'' as provided in section 241(a)(1)(C) of the
Act, 8 U.S.C. 1231(a)(1)(C). This rule directs the Service to provide a
specific notice to the alien, during the 90-day removal period, if the
alien has acted in a way to invoke the statutory extension of the
removal period. Until the alien acts to comply with the statutory
requirements, the removal period will continue to be extended, as
provided by section 241(a)(1)(C) of the Act. As long as the alien
remains in the removal period, including any extension attributable to
the alien's conduct, then the detention provisions of section 241(a)(2)
of the Act will continue to apply, including provisions that mandate
detention of certain criminal and terrorist aliens. Section 241(a)(6)
of the Act applies only to the continued detention of a removable alien
after the removal period has expired.
Who Is Covered by the New Procedures in Sec. 241.13 Regarding
Likelihood of Removal?
New Sec. 241.13 applies to the following individuals in INS
detention who are under a final order of removal:
Aliens who have been admitted to the United States
(including aliens admitted as refugees under section 207 of the Act, 8
U.S.C. 1157), and who are later ordered removed under sections 237
(a)(1)(C), (a)(2), or (a)(4) of the Act; and
Other deportable aliens who are determined to be a danger
to the community or a flight risk; and
Inadmissible aliens who are present in the United States
without inspection.
As discussed below, the Supreme Court's decision in Zadvydas does
not apply to arriving aliens who are inadmissible, including aliens who
have been granted immigration parole into the United States. However,
the Department of Justice has determined that the provisions of
Sec. 241.13 shall apply to one category of inadmissible aliens: those
who are present in the United States without inspection, admission, or
parole. Before enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208,
Div. C, 110 Stat. 3546 (Sept. 30, 1996), these aliens were considered
to have ``entered'' the United States. Since the removal provisions of
IIRIRA took effect on April 1, 1997, these aliens are no longer
considered to have ``entered without inspection,'' but to be applicants
for admission who are present without inspection, as provided in
section 235(a)(1) of the Act, 8 U.S.C. 1225(a)(1).
Conversely, Sec. 241.13 does not apply to arriving aliens, and
those who have not entered the United States, including those who have
been granted immigration parole into the country, such as the Mariel
Cubans. In Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206
(1953), the Supreme Court upheld the Attorney General's authority to
hold an excludable alien in custody indefinitely, pursuant to section
236(e) of the Act, 8 U.S.C. 1226(e), as it existed prior to enactment
of IIRIRA. In Zadvydas, the Court acknowledged its opinion in Mezei,
but distinguished aliens who have entered the United States from such
inadmissible aliens who are presumed, in the contemplation of the law,
to be ``at the border,'' rather than ``in'' the United States. 121 S.
Ct. at 2500. As the Court noted, ``The distinction between an alien who
has effected an entry into the United States and one who has never
entered runs throughout immigration law.'' Id. Thus, this interim rule
reflects what the Court characterized as a ``well-established''
distinction between the rights of those seeking admission and those who
have been admitted. Section 241.13 does not apply to Mariel Cubans or
parolees. Mariel Cubans will continue to be covered by 8 CFR 212.12,
and the provisions of 8 CFR 241.4 govern all other cases where the
alien is the subject of an administratively final order of removal.
Section 241.13 does not apply to aliens under a final order of
removal while they are still within the statutory removal period. The
statutory basis for detention of removable aliens during the removal
period, under section 241(a)(2) of the Act, is broader than the
authority to detain such aliens under section 241(a)(6) of the Act
after the removal period has expired, but it is also strictly time-
limited. The Supreme Court's decision in Zadvydas was only concerned
with the interpretation of section 241(a)(6) of the Act, in light of
its concerns that the law should not be read to permit ``indefinite,
perhaps permanent, detention.'' 121 S. Ct. at 2502. Those concerns are
inapposite to the detention of aliens during the removal period, since
that authority, by its terms, expires at the end of the removal period,
which is generally 90 days. Section 241(a)(1)(C) of the Act does
expressly provide for an extension of the removal period in those cases
where the alien ``fails or refuses to make timely application in good
faith for travel or other documents necessary to the alien's departure
or conspires or acts to prevent the alien's removal subject to an order
of removal.'' But any extension
[[Page 56970]]
of the removal period in such circumstances is entirely attributable to
the alien's own conduct. The extension of the removal period will come
to an end when the alien complies with his or her statutory
obligations.
When Can an Eligible Alien Submit a Request for Release From Custody on
the Ground That There Is No Significant Likelihood of His or Her
Removal in the Reasonably Foreseeable Future?
As discussed above, the obligation of the Service to respond to
issues concerning the likelihood of removal does not arise as long as
the alien is still within the removal period. However, Sec. 241.13 will
permit an alien subject to a final order of removal to present, at any
time after the removal order becomes final, the contention that there
is no significant likelihood of removal in the reasonably foreseeable
future. The Service may postpone its consideration of such requests
until after expiration of the removal period.
In any event, the Service is not obligated to release an alien
until after the Service has had the opportunity, during the
``presumptively reasonable'' 6-month period, to endeavor to remove the
alien and to make its determination as to whether or not there is a
significant likelihood of removal in the reasonably foreseeable future.
See Zadvydas, 121 S. Ct. at 2503 (faulting the decision of the Ninth
Circuit in one of the cases under review because ``its conclusion may
have rested solely upon the `absence' of an `extant or pending'
repatriation agreement without giving due weight to the likelihood of
successful future negotiations.'').
Thus, the Service is entitled to make an assessment of the
likelihood of removal in each case, including the prospects for a
change in circumstances, even if (for example) there is not extant or
pending repatriation agreement at the time the alien makes the request
for a decision by the Service under Sec. 241.13. The Service works
continuously with other countries to accomplish repatriation. The
Service will also evaluate the alien's efforts to fulfill his or her
statutory obligation to seek to comply with the removal order.
The six-month presumptively reasonable period of detention to
effect the alien's removal commences when the removal period begins as
set forth in section 241(a)(1) of the Act, unless that removal period
is extended. If the removal period is extended because of the alien's
failure to comply with the order of removal or to cooperate in securing
travel documents, as provided in section 241(a)(1)(C) of the Act, the
Service shall have a reasonable period of time after the expiration of
the removal period, as extended, to effect the alien's removal.
What are the Procedures for the Alien to Request Release on the Ground
That There is no Significant Likelihood of Removal in the Reasonably
Foreseeable Future?
Section 241.13 provides the procedures for the Service to evaluate
an alien's challenge to the reasonableness of his or her continued
detention, as provided in Zadvydas. The alien must provide ``good
reason to believe that there is no significant likelihood of removal in
the reasonably foreseeable future,'' 121 S. Ct. at 2505, and may submit
any information that may be relevant to support that contention.
As a threshold matter, this rule requires that an alien requesting
a determination under Sec. 241.13 demonstrate his or her efforts to
comply with the removal order and to cooperate with the Service's
efforts to effect his or her removal. As provided in Sec. 241.13(e)(2),
if the HQPDU determines that the alien has not established the
requisite efforts to comply with the removal order and to cooperate
with the Service's removal efforts, then the alien shall be given a
written notice stating those findings and indicating the specific
actions that the alien will be required to take to come into
compliance. Until the alien responds to the Service's findings
regarding the lack of compliance or cooperation with the removal
effort, the Service will not have complete information as to the likely
prospects for obtaining a travel document or for taking other
appropriate steps to remove that alien. Accordingly, the rule provides
that, until the alien has responded to the Service's notice, the HQPDU
does not have an obligation to continue its consideration of the
alien's request for release under this section. Once the alien
responds, then the HQPDU will take the information provided by the
alien into consideration.
In appropriate cases, the rule provides for the HQPDU to advice the
Department of State of the alien's contention that his or her removal
is not reasonably foreseeable, and to request the assistance and
guidance of that Department in evaluating the likelihood of the alien's
removal under the circumstances. The referral to the Department of
State will not be automatic, because the Service ordinarily will
already have considerable information concerning the repatriation of
aliens to each country, and related diplomatic circumstances. However,
this rule allows for such a feral in those cases where the HQPDU
determines that input from the Department of State is needed under the
circumstances. Since the nature and status of diplomatic relationships
are likely to be relevant to the prospects for removing aliens to
various countries, it is important for the Service to take the
opportunity, in appropriate cases, to solicit involvement by the
Department of State before the HQPDU must decide whether the alien's
removal is reasonably foreseeable.
Although this rule does not set a specific time limit for
consultation with the State Department, or for the Service's final
decision on the likelihood of removal in the reasonably foreseeable
future, the HQPDU will have to be mindful of the overall purposes of
the detention laws, as interpreted by the Supreme Court. The time for
the Service to determine the likelihood of removal must also be
reasonable under the circumstances, in light of the interests at stake.
the HQPDU review process should not, itself, give rise to the same
kinds of concerns about ``indefinite, perhaps permanent'' detention
that troubled the Supreme Court. See Zadvydas, at 2503 (``for detention
to remain reasonable, as the period of prior post-removal confinement
grows, what counts as the `reasonably foreseeable future' would have to
shrink.'')
The rule provides an opportunity for the alien to comment on the
available (unclassified) evidence presented by the Service, including
any information provided by the Department of State on which the
Service intends to rely. The alien may submit with his or her response
any evidence or other information that, the alien believes, shows that
removal is no longer significantly likely in the reasonably foreseeable
future. This may include evidence of why, even if the Service has been
able to effect the removal of other aliens to that country or to a
third country, the particular alien's own situation is materially
different such that he or she is unlikely to be removed.
After receiving all of the evidence, the HQPDU shall consider all
the facts of the case, including, but not limited to, those
considerations specified in Sec. 241.13(f) of this rule. The history of
the Service's efforts to remove aliens to the particular country is of
considerable relevance in the determination of the likelihood of
removal in the reasonably foreseeable future. If the Service can
demonstrate, for example, that it has been successful in returning most
aliens to a particular country but the process may often require longer
periods (beyond six months), that information is
[[Page 56971]]
highly relevant in making the determination as to whether there is a
significant likelihood of removing the alien to that country in the
reasonably foreseeable future.
If, after considering the alien's submission, the HQPDU determines
that ``there is no significant likelihood of removal in the reasonably
foreseeable future,'' 121 S. Ct. at 2505, the HQPDU shall include in
the alien's file a written explanation for this decision. The HQPDU
shall then arrange for the alien's release from custody under
appropriate conditions of release, unless the Service determines that
the case should be referred for consideration of further detention
under Sec. 241.14, as added by this rule, on account of special
circumstances.
Where the determination under Sec. 241.13 is to deny the alien's
request for release because there is a significant likelihood of
removal in the reasonably foreseeable future, the alien's detention
will continue to be governed by Sec. 241.4, including the provisions
for periodic review of the continued detention of aliens under those
standards.
According to Zadvydas, the Service's decision to retain the alien
in custody remains lawful as long as there is a significant likelihood
of removal in the reasonably foreseeable future. Thus, even after an
initial decision denying release under Sec. 241.13, this rule will
allow aliens who remain in detention to make a new request for release
under Sec. 241.13 after a period of six months since the last
determination by HQPDU under Sec. 241.13, or at any time upon a showing
of materially changed circumstances.
The review process under Sec. 241.13, as required by the Supreme
Court's decision in Zadvydas, will result in the release of some
removable aliens even though they would otherwise not have been subject
to release under the detention standards in Sec. 241.4 on account of a
danger to public safety or flight risk. The Department is keenly aware
of the need to minimize those concerns whenever possible, through the
imposition of appropriate conditions of release for those aliens who
can no longer be detained. Accordingly, Sec. 241.13(g) makes all of the
conditions of release enumerated in section 241(a)(3) of the Act and 8
CFR 241.5(a) mandatory, and specifically provides for the imposition of
additional particular conditions of supervision in order to protect the
public safety and to ensure the Service's continued ability to remove
the alien should circumstances change in the future.
The Supreme Court's decision made clear that, even if an alien must
be released under an order of supervision where there is no significant
likelihood of removal in the reasonably foreseeable future, such aliens
may also be returned to custody if they violate conditions of release.
As the Court noted in its analysis:
[I]f removal is not reasonably foreseeable, the court should
hold continued detention unreasonable and no longer authorized by
statute. In that case, of course, the alien's release may and should
be conditioned on any of the various forms of supervised release
that are appropriate to the circumstances, and the alien may no
doubt be returned to custody upon a violation of those conditions.
Zadvydas, 121 S. Ct. at 2504. See also id. 2502 (``The choice is
not between imprisonment and the alien `living at large.' It is between
imprisonment and supervision under release conditions that cannot be
violated.'') (emphasis added).
Accordingly, Sec. 241.13(i) provides that the Service may take back
into custody any alien released under Sec. 241.13, if the alien
violates any conditions included in the order of supervision. Section
241.13(i) includes provisions modeled on Sec. 241.4(1) to govern
determinations to take an alien back into custody. If the alien's
release is revoked on account of violations of the conditions of
release, this rule specifically provides for referrals of those cases
to the U.S. Attorneys for prosecution in appropriation situations,
under section 243(b) of the Act, 8 U.S.C. 1253(b). In addition, this
rule provides that the alien would once again be subject to detention
for a six-month period, a time that the Court has already determined to
be presumptively reasonable in the context of the detention of aliens
pending removal. After the expiration of the six-month period, the
alien would again be able to request release under the provisions of
Sec. 241.13. At that time, the Service would again conduct a review
under the procedures of Sec. 241.13. In appropriate cases, taking into
account the alien's conduct after his or her prior release under
Sec. 241.13 and the reasons for revoking release, the Service may
decide to initiate proceedings under Sec. 241.14 for continued
detention of the alien because of special circumstances.
On the other hand, if the alien is returned to custody because the
Service determines that there is now a significant likelihood that the
alien may be removed in the reasonably foreseeable future, the alien's
continued detention will once again be governed by the regular
procedures under Sec. 241.4 rather than Sec. 241.13.
What Substantive Changes Does This Rule Make to 8 CFR 241.4?
This rule amends 8 CFR 241.4(b), as amended by final rule on
December 21, 2000, at 65 CFR 80281, to provide that the detention
standards of Sec. 241.4 no longer apply to a detained alien after the
Service has made the determination under Sec. 241.13 that there is no
significant likelihood of removal in the reasonably foreseeable future.
As long as that determination by the Service remains in effect, the
detention or release of the alien is governed by the standards of
Sec. 241.13 (or Sec. 241.14 if applicable). However, in any case where,
based on a change of circumstances, the Service later makes a
determination that there is a significant likelihood that the Service
subsequently will be able to remove the alien to the country to which
the alien was ordered deported, or to a third country, in the
reasonably foreseeable future, the custody provisions of Sec. 241.4
will again apply. In that event, the Service may return the alien to
detention in connection with the removal, and any issues relating to
the detention or release of the alien pending his or her removal will
once again be governed by the standards of Sec. 241.4.
Although Secs. 241.4 and 241.13 are related, this rule keeps the
standards and procedures for post-removal period custody reviews under
Sec. 241.4 unchanged except as necessary to take account of the new
review procedures under Sec. 241.13. Under Sec. 241.4(i)(7), as added
by this rule, at the time the HQPDU conducts its review of whether a
detained alien should continue to be detained under the established
post-removal period detention standards in Sec. 241.4, the HQPDU shall
also consider whether there is a substantial reason to believe that the
removal of an alien who is now covered under the provisions of
Sec. 241.13, may not be significantly likely in the reasonably
foreseeable future. If so, the HQPDU shall initiate the review
procedures under Sec. 241.13, whether or not the alien has make a
specific request for such a review. However, the detention standards
and procedures of Sec. 241.4 will continue to apply to such an alien
unless the Services has made a determination, after competition of the
review process under Sec. 241.13, that there is no significant
likelihood of removal in the reasonably foreseeable future.
With these limited changes to take account of the establishment of
a separated review procedure under Sec. 241.13, this rule does not make
substantive changes to the existing post-removal period detention
standards. It is
[[Page 56972]]
important to note that this rule does not alter the existing criteria
for release in Sec. 241.4(e), the factors for consideration in
Sec. 241.4(f), the procedures governing the review and determination of
custody issues by the district directors and the HQPDU in
Sec. 241.4(d), (h) or (i), the conditions of release in Sec. 241.(j),
or the timing of reviews in general as provided in Sec. 241.4(k). For
aliens who continue in detention under the standards of Sec. 241.4 (for
example, inadmissible aliens who are not covered by the procedures of
Sec. 241.13, or deportable aliens for whom there is a significant
likelihood of removal), the provisions in Sec. 241.4 for periodic
review of the alien's detention will continue to apply. The periodic
reviews under Sec. 241.4 will also apply to aliens who are continued in
detention because of special circumstances, pursuant to Sec. 241.14.
However, this rule does include procedural instructions to the
Service to take account of the statutory provisions relating to the
running of the removal period. The removal period is the time during
which the Service and the alien seek to effect the final order of
removal. The period described by the statute does not commence until
the point at which the alien's removal can be effected--in a case that
is stayed pending judicial review, the date when, pursuant to the
court's orders, any stay of removal has expired. Accordingly, the
regulations specify the circumstances to determine the commencement of
the removal period under the statute, based on the earliest
availability of a final, executable order of removal.
The revisions to Sec. 241.4(g) specifically take account of the
existing statutory provision in section 241(a)(1)(C) of the Act, which
provides for extension of the length of the removal period beyond 90
days, if the alien fails or refuses to make timely application in good
faith for documents necessary to effect the alien's departure or
conspires or acts to prevent his or her removal subject to an order of
removal, deportation or exclusion. There are also applicable criminal
sanctions in section 243(a) of the Act. These are not new obligations--
they are clearly established in the existing law--and this rule does
not create any novel obligations for aliens who refuse to comply.
Accordingly, this rule directs the Service to provide a Notice of
Failure to Comply to the alien in order to make clear the statutory
obligations, the grounds for determining that the alien has met those
requirements, and the specific actions that the alien will need to take
to comply. A Notice of Failure to Comply has the effect of extending
the removal period as provided by law. Since the inability to obtain
travel documents is the first criterion for release under
Sec. 241.4(e), this rule provides that the Service shall also advise
the alien that the Service shall not be obligated to complete its
pending scheduled custody reviews under Sec. 241.4 until the alien has
responded to the Notice of Failure to Comply and has demonstrated his
or her compliance with the statutory requirements. Once the alien's
statutory obligations are met, the Service will have a reasonable
period to effect the alien's removal. (The Service's failure to provide
a Notice of Failure to Comply during the 90-day removal period,
however, does not have the effect of excusing the alien's conduct.)
Why is the Department Issuing Sec. 241.14 Regarding Special
Circumstances?
The Department is issuing Sec. 241.14 to provide procedures for
determining whether particular removable aliens may be continued in
detention even if their removal is not significantly likely in the
reasonably foreseeable future, in light of the Supreme Court's decision
in Zadvydas. Under section 241(a)(6) of the Act and the post-removal
period review procedures in Sec. 241.4, the Service has been continuing
to detain aliens subject to a final order of removal beyond the
statutory removal period where the Service determines the alien to be
either a risk to the community or a risk of flight. Zadvydas, however,
interpreted section 241(a)(6) of the Act, in general, to provide that
the Service cannot continue to detain criminal aliens who pose a risk
to the community once there is not a significant likelihood of removal
in the reasonably foreseeable future.
However, the Court did acknowledge that there may be special
circumstances where continued detention of particular aliens may be
appropriate to avoid special risks to the public. The Court also
indicated that detention due to dangerousness may be appropriate in
certain limited situations where there are particular reasons to
consider an alien to be specially dangerous. 121 S. Ct. at 2499 (``[W]e
have upheld preventive detention based on dangerousness only when
limited to specially dangerous individuals * * *''.). These special
circumstances justifying continued detention may also be based on
national security or terrorism grounds. 121 S. Ct. at 2502 (``Neither
do we consider terrorism or other special circumstances where special
arguments might be made for forms of preventive detention and for
heightened deference to the judgments of the political branches with
respect to matters of national security'').
Section 241(a)(6) of the Act explicitly allows the Service to
continue to detain aliens whom the Service determines to be a risk to
the community. This rule is being issued to provide procedures to
determine whether individual aliens can continue to be detained even
when their removal is not reasonably foreseeable in accordance with the
Court's decision in Zadvydas. The regulation is narrowly drawn to allow
continued detention only in certain specific situations where the risk
to the public is particularly strong, and where no conditions of
release can avoid the danger to the public.
This rule has been written to allow continued detention when there
is not a significant likelihood of removal in the reasonably
foreseeable future, only in limited situations involving: (1) Highly
contagious diseases posing a danger to the public; (2) foreign policy
concerns; (3) national security and terrorism concerns; and (4)
individuals who are specially dangerous due to a mental condition or
personality disorder.
The rule provides that, after the Service has determined in
accordance with Sec. 241.13 that a particular alien's removal is not
significantly likely in the reasonably foreseeable future, the Service
may consider whether that alien's release presents such a danger to the
public that the alien should remain detained due to those special
circumstances.
What is the Procedure for a Determination That Continued Detention is
Justified by Special Circumstances?
The procedures for determining whether continued detention is
justified on the basis of special circumstances depend upon which
justification in Sec. 241.14 is invoked.
Aliens With Highly Contagious Diseases Posing a Danger to the Public
Under Sec. 241.14(b)(1), the Service may continue to detain an
alien with a highly contagious disease posing a danger to the public,
upon the advice of the Public Health Service. The alien will remain in
custody only until the Service, in consultation with the Public Health
Service and appropriate state or local health officials, is able to
make arrangements for appropriate medical treatment after the alien is
released.
This provision only applies to highly contagious diseases, such as
active tuberculosis, smallpox or yellow fever, where the Public Health
Service has affirmatively advised the Service that
[[Page 56973]]
releasing that alien would pose a danger to the public. Although the
law and applicable regulations contain a much broader definition of
contagious diseases for use in other immigration contexts (see section
212(a)(1)(A) of the Act; 42 CFR 34.2), only the narrow definition of
highly contagious diseases posing a danger to the public will be
considered for purposes of special circumstances under this rule.
Aliens Whose Release Would Cause Serious Adverse Foreign Policy
Consequences
Section 241.14(c) allows the Service to continue to detain certain
aliens whose release would have serious adverse foreign policy
consequences. A determination not to release an alien because of
serious adverse foreign policy consequences can only be made upon the
recommendation of the Secretary of State.
The Department has determined not to refer a decision to continue
to detain someone under this justification for review by an immigration
judge, and to rely upon the State Department's expertise in foreign
policy matters to determine those rare instances when continued
detention is appropriate. A decision to detain an alien on this ground
would be based on the expertise of the Secretary of State in foreign
relations and would not involve factual determinations of the sort that
would necessitate a hearing before an immigration judge.
In this context, due process is satisfied by an administrative
determination by the Attorney General or Deputy Attorney General, upon
recommendation by the Secretary of State. Courts have long recognized
that deference should be given to the Executive Branch regarding issues
implicating foreign policy and our relations with other nations.
Judicial deference to the Executive Branch is especially appropriate in
the immigration context, where officials ``exercise especially
sensitive political functions that implicate questions of foreign
relations.'' See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). In
Zadvydas, 121 S. Ct. at 2502, the Court acknowledged that the judiciary
should give deference to ``Executive Branch primacy in foreign policy
matters.''
These issues are addressed in more detail in the following section
as well, in conjunction with the discussion of cases involving a
significant national security or terrorism risk.
Aliens Whose Release Would Pose Significant National Security or
Terrorism Risks
Under Sec. 241.14(d), the Service shall continue to detain an alien
whose release would pose a significant threat to the national security
or a significant risk of terrorism.
The rule provides that the Commissioner must make the decision to
invoke the detention procedures on account of security or terrorism
grounds, and provides for several levels of review at the highest
levels of the Department of Justice in each case.
At the start of the proceedings, the alien will be advised that the
Service intends to keep the alien in custody and, to the greatest
extent possible consistent with the protection of national security and
classified information, will be provided a written description of the
factual basis for the alien's continued detention. The alien will have
the opportunity to submit a written statement and relevant evidence for
consideration before a certification is made. The Commissioner shall
consider all evidence relating to the case, including evidence that the
alien has previously committed national security or terrorism-related
offenses, has engaged in terrorist activity, or otherwise poses a
danger to the national security in the United States or abroad; prior
convictions in a federal, state or foreign court of relevance to the
risk of release; and any other special circumstances relating to the
alien's situation indicating that his or her release would pose a
significant threat to the national security or a significant risk of
terrorism.
In any case where the basis of the alien's final order of removal
was some ground not relating to terrorism or national security, and
immigration officer will conduct an interview in person at which the
alien may be represented by counsel and present any relevant evidence
on his or her behalf. This situation will arise, for example, if an
alien was ordered removed because he or she overstayed a student or
tourist visa but the government has information indicating that the
alien's release would pose a significant threat to the national
security or a significant risk of terrorism.
Based on the Commissioner's recommendation, and the recommendation
of the Director of the Federal Bureau of Investigation, the Attorney
General personally shall determine whether to certify that the alien
should not be released from custody because of a significant threat to
the national security or a significant risk of terrorism. The rule
provides that, before making such a certification, the Attorney General
shall order any further hearings or review proceedings as may be
appropriate under the circumstances.
A decision to continue detention of a removable alien because of
national security or terrorism concerns requires a predictive judgment.
It is an attempt to predict an alien's possible future behavior and to
assess whether, under compulsion of circumstances or for other reasons,
he might act in a way that creates a real and legitimate national
security threat or an imminent threat to public safety. The decision
may be based upon past or present conduct, but it also may be based on
a wide variety of other circumstances. Cf. Department of the Navy v.
Egan, 484 U.S. 518, 528-29 (1988) (applying this rationale in security
clearance case). Thus, the ``attempt to define not only the
individual's future actions, but those of outside and unknown
influences renders the [decision] * * * an inexact science at best.''
See Adams v. Laird, 420 F.2d 230, 239 (D.C. Cir. 1969), cert. denied,
397 U.S. 1039 (1970).
In these circumstances, it is the Attorney General who is best
situated to assess the due process interests of any particular alien
with respect to the matters at issue, to weigh those interests against
the national security and public safety concerns presented in the case,
to assess the nature and quality of the information that triggered
those concerns, and to provide procedures that honor those competing
interests. This section creates a process whereby that Executive
authority and expertise can be exercised.
The Department has decided to include these provisions for
continued detention because cases may arise where the Attorney General
believes that it would be irresponsible to release from detention an
alien subject to a final order of removal because the release of the
alien would result in serious damage to the national security or pose
an imminent threat of terrorism. Similarly, there may arise a case
where the Attorney General believes, based on a recommendation by the
Secretary of State, that it would be irresponsible to release an alien
because of serious adverse foreign policy consequences.
Because of the unique relationship that the Attorney General
maintains with the intelligence community, particularly the Federal
Bureau of Investigation, and based on the broad delegation of
discretionary authority granted the Attorney General by Congress in the
Act, as well as the Attorney General's unique responsibilities in the
Executive Branch,
[[Page 56974]]
this section places in the Attorney General the personal responsibility
to make the final certification, in those cases where he determines
that continued detention beyond the presumptively reasonably six-month
period is warranted because of significant national security or
terrorism concerns.
Similarly, as provided in Sec. 241.14(c), the State Department is
the appropriate agency to assess the foreign policy implications of the
release of a particular alien. The judiciary is not well positioned to
shoulder primary responsibility for determining the likelihood and
importance of such diplomatic repercussions. See INS v. Abudu, 485 U.S.
94, 110 (1988).
Where national security, foreign relations, and immigration matters
converge, as they do in these cases, the decision to detain a certain
alien will require the perspective only a high Aguirre-Aguirre, 526
U.S. 415, 425 (1999) (``judicial deference to the Executive Branch is
especially appropriate in the immigration context where officials
exercise especially sensitive political functions that implicate
questions of foreign relations''); Galvan v. Press, 347 U.S. 522, 531
(1954) (``Policies pertaining to * * * right [of aliens] to remain here
are peculiarly concerned with the political conduct of government.'');
Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 491
(1999) (declaring that courts are unable to assess the adequacy of the
Executive's reasons for ``deeming nationals of a particular country a
special threat''); People's Mojahedin Organization of Iran v.
Department of State, 182 F.3d 17, 23 (D.C. Cir. 1999) (Executive Branch
finding that foreign terrorist organization threatened national
security is nonjustifiable because ``[t]hese are political judgments,
decisions of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility and have long been held to belong to the
domain of political power not subject to judicial intrusion or
inquiry''), cert. denied, 529 U.S. 1104 (2000).
Specially Dangerous Aliens
Under Sec. 241.14(f) the Service may seek to detain specially
dangerous aliens. Subject to review before an immigration judge, the
Service shall continue to detain in alien if the alien's release would
create a special danger to the public due to the three factors
identified in Sec. 241.14(f)(1):
The alien must have been convicted of a crime of violence
as defined as 18 U.S.C. 16. This will include relevant state
convictions where the offense meets the definitions of a ``crime of
violence'' under 18 U.S.C. 16.
Due to a mental condition or personality disorder and
behavior associated with that condition or disorder, the alien is
likely to engage in acts of violence in the future.
No conditions of release can reasonably be expected to
ensure the safety of the public.
The Department recognizes that freedom from bodily restraint has
always been at the core of the liberty protected by the Due Process
Clause from arbitrary government action. See, e.g., Youngberg v. Romeo,
457 U.S. 307, 316 (1982). However, the Supreme Court has held that the
``Government's regulatory interest in community safety can, in
appropriate circumstances, outweigh an individual's liberty interest.''
United States v. Salerno, 481 U.S. 739, 748 (1987); see also Foucha v.
Louisiana, 504 U.S. 71, 80 (1992). Many states ``have in certain narrow
circumstances provided for the forcible civil detainment of people who
are unable to control their behavior and thereby pose a danger to the
public health and safety.'' Kansas v. Hendricks, 521 U.S. 346, 357
(1997). The Supreme Court has ``consistently upheld such involuntary
commitment statutes provided the confinement takes place pursuant to
proper procedures and evidentiary standards.'' Id.
Accordingly, the Department has decided that it is necessary to
provide specific procedural protections to aliens who may be considered
for detention under this standard. See Zadvydas, 121 S. Ct. at 2499
(discussing continued detention of ``specially dangerous individuals''
subject to strong procedural protections). Such cases will be referred
for a hearing under appropriate standards, where an immigration judge
will conduct a full hearing, limited to reviewing the Service's
determination regarding dangerousness, and where the Service has the
burden of proof by clear and convincing evidence.
This rule contemplates that evidence of the alien's dangerousness
must be accompanied by additional evidence relating to whether the
alien's mental condition or personality disorder, and associated
physical behavior, indicates that the alien is likely to engage in acts
of violence in the future. Where preventive detention can be of
indefinite duration, the Court ``has demanded that the dangerousness
rationale be accompanied by some other special circumstances such as
mental illness, that helps to create the danger.'' Id.
The rule requires that the Service rely upon a report by a
physician employed or designated by the Public Health Service, after a
full psychiatric evaluation of the alien, before initiating the review
procedures to establish that the alien is specially dangerous. The
Service cannot determine the issue of dangerousness without the
recommendation of the physician who is a neutral and professional
decision maker. Cf. Parham v. J.R., 442 U.S. 584, 607 (1979) (due
process is satisfied where the neutral decision maker is a medical
professional making a medical judgment); see also Youngberg v. Romeo,
457 U.S. 397, 323 (1982) (due process only requires the courts to make
certain that professional judgment was exercised; a decision, if made
by a professional, presumptively valid.)
The provisions of this rule authorizing continuing detention apply
only where the alien poses a special danger to others under the
standards of the rule, not for those cases where an alien is mentally
incompetent but poses no danger to others. In the latter case, where
the Service determines that it cannot responsibly release, without
continued care or treatment, an alien who is incapable of caring for
himself or herself on account of mental illness or mental incompetence,
the Service will not continue to detain the alien indefinitely under
the authority of section 241(a)(6) of the Act. Instead, the Service
will initiate appropriate efforts with the alien's family members, the
Public Health Service, or proper State or local government officials to
secure proper arrangements for the alien's continued care or treatment,
as a condition of the alien's release. Accordingly, Sec. 241.14(f) does
not apply to such aliens.
The rule provides that review proceedings will take place before an
immigration judge in two phases. After the case is referred for a
hearing, the immigration judge will promptly schedule a reasonable
cause proceeding. The purpose of the reasonable cause hearing is to
provide a quick evaluation by a neutral decision maker as to whether
there is a sufficient basis to proceed with the review proceedings.
The reasonable cause hearing is intended to be only a preliminary
review of the case, and will likely be based on the evidence initially
provided by the Service when it instituted the review proceedings. This
hearing is not intended to duplicate the full hearing on the merits of
the alien's circumstances, but only to determine whether there is
reasonable cause to proceed. The merits hearing is necessary in order
to provide
[[Page 56975]]
due process, but it will also necessarily require additional time for
preparation and resolution, and the Service must continue to detain the
alien pending the completion of those proceedings.
If the immigration judge determines that the Service has failed to
meet its burden of establishing reasonable cause, the immigration judge
may dismiss the review proceeding without a full hearing on the merits.
In that case, the Service will be able to make an expedited appeal to
the Board. Under the rule, a single Board Member will review the record
under the Board's rules and determine whether the Service has
established reasonable cause to continue the review proceedings.
Once it is determined that there is reasonable cause for further
proceedings, the immigration judge will promptly schedule a merits
hearing. At all phases of the review process, the alien will have a
number of important rights, including the right to be represented by
counsel at no cost to the government, the right to examine the evidence
presented by the Service, and the right to cross-examine any witnesses
that the Service presents. At the merits hearing, the alien will enjoy
the additional right to cross-examine the medical doctor who authored
any medical report that formed the basis for the Service's
determination that the alien is specially dangerous.
In Sec. 241.14(i)(2), the rule provides a non-exclusive list of
factors the immigration judge will consider in making a determination
at the conclusion of a merits hearing. If the immigration judge
concludes that the Service has met its burden by clear and convincing
evidence, the immigration judge will enter an order for the continued
detention of the alien. If the immigration judge concludes that the
Service has not met its burden, the review proceedings will be
dismissed.
Either party may appeal the immigration judge's decision after the
merits
|