INS Custody Review Regulations 2001

This regulation amends the custody review process governing the
detention of person 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 (2001). This regulation adds new provisions to govern determinations by the Immigration and Naturalization Service as to whether there is a significant likelihood that the person will be deported in the reasonably foreseeable future, and whether there are special circumstances justifying the continued detention of certain persons.

[Federal Register: November 14, 2001 (Volume 66, Number 220)]

[Rules and Regulations]

[Page 56967-56982]

From the Federal Register Online via GPO:

[DOCID:fr14no01-1]

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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

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[[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.

———————————————————————–

Client Reviews

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

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