This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

48183

Vol. 62, No. 178

Monday, September 15, 1997

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

and Executive Office for Immigration

Review

8 CFR Parts 3 and 236

[INS No. 1855–97; AG ORDER No. 2114–

97]

RIN 1115–AE88

Procedures for the Detention and

Release of Criminal Aliens by the

Immigration and Naturalization Service

and for Custody Redeterminations by

the Executive Office for Immigration

Review

AGENCY: Immigration and Naturalization

Service, and Executive Office for

Immigration Review, Justice.

ACTION: Proposed rule.

SUMMARY: This rule proposes to amend

the regulations of the Immigration and

Naturalization Service (Service) and the

Executive Office for Immigration

Review (EOIR) by establishing a

regulatory framework for the detention

of criminal aliens pursuant to the

Transition Period Custody Rules (TPCR)

set forth in the Illegal Immigration

Reform and Immigrant Responsibility

Act of 1996 (IIRIRA). This rule is

necessary to provide uniform guidance

to Service officers and immigration

judges regarding application of the

TPCR.

DATES: Written comments must be

submitted on or before October 15,

1997.

ADDRESSES: Please submit written

comments, including an original and

two copies, to the Director, Policy

Directives and Instructions Branch,

Immigration and Naturalization Service,

425 ‘‘I’’ Street NW., Room 5307,

Washington, DC 20536. To ensure

proper handling, please reference INS

number 1855–97 on all correspondence.

Comments are available for public

inspection at the above address by

calling (202) 514–3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

Brad Glassman, Office of the General

Counsel, Immigration and

Naturalization Service, 425 ‘‘I’’ Street

NW., Room 6100, Washington DC

20536, telephone (202) 305–0846.

SUPPLEMENTARY INFORMATION:

Background

On October 9, 1996, the

Commissioner of the Immigration and

Naturalization Service notified Congress

that the Service lacks the detention

space and personnel necessary to

comply with the mandatory detention

provisions of section 440(c) of the

Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L.

No. 104–132, 110 Stat. 1214, and section

236(c) of the Immigration and

Nationality Act (Act), as amended by

the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996

(IIRIRA), Pub. L. No. 104–208, section

303(a), 110 Stat. 3009. By operation of

law, see IIRIRA section 303(b)(2), the

notification results in the temporary

replacement of these mandatory

detention provisions with the Transition

Period Custody Rules set forth in IIRIRA

section 303(b)(3). The TPCR provide for

the detention, inter alia, of specified

classes of criminal aliens, and allow

some of these aliens to be considered for

release in the exercise of the Attorney

General’s discretion. This proposed rule

establishes uniform rules and standards

to implement the release provisions of

the TPCR for criminal aliens.

The TPCR apply, inter alia, to

specifically enumerated classes of

criminal aliens in deportation

proceedings (i.e., where the alien is

deportable and proceedings commenced

before April 1, 1997), and in removal

proceedings (i.e., where the alien is

either deportable or inadmissible, and

proceedings commenced on or after

April 1, 1997). The TPCR do not apply

in exclusion proceedings (i.e., where the

alien is inadmissible and proceedings

commenced before April 1, 1997)

because the TPCR replace mandatory

detention provisions applicable to

deportation and removal proceedings,

see IIRIRA section 303(b)(2), but do not

replace the analogous provision

applicable to exclusion proceedings,

section 236(e) of the INA (as designated

prior to April 1, 1997).

The TPCR apply differently with

respect to aliens in removal proceedings

than they do with respect to aliens in

deportation proceedings. The TPCR

replace revised section 236(c) of the

Immigration and Nationality Act (Act),

which governs the detention of

specified classes of aliens during

removal proceedings. The TPCR do not,

however, replace the revised section 241

of the Act, which governs detention

after a final order of removal. As a

result, the TPCR apply only during

removal proceedings; the revised

section 241 of the Act governs detention

after a final order of removal.

By contrast, the TPCR apply both

during deportation proceedings and

after a final order of deportation

(tracking the coverage of section 440(c)

of AEDPA). It is expected, however,that

few, if any, criminal aliens with a final

order of deportation will be released in

the exercise of discretion, because it

will be exceptionally difficult for such

an alien to demonstrate the absence of

a flight risk by clear and convincing

evidence as required to be considered

for release in the exercise of discretion.

In a report issued in March 1996, the

Office of the Inspector General of the

United States Department of Justice

found that 89 percent of non-detained

aliens with final orders of deportation

failed to surrender for deportation when

ordered to do so by the Service (Report

#I–96–03). Finally, as in the past, no

custody determination or

redetermination need by undertaken by

the Service if actual deportation or

removal is imminent.

The TPCR apply to the following

classes of aliens in deportation

proceedings (or subject to a final order

of deportation): aliens convicted of

aggravated felonies, under the definition

of ‘‘aggravated felony’’ as amended by

IIRIRA; aliens deportable for having

committed any offense covered in

section 241(a)(2)(A)(ii) (multiple crimes

involving moral turpitude), (A)(iii)

(aggravated felonies), (B) (certain

controlled substance offenses), (C)

(certain firearms offenses), or (D)

(certain other crimes) of the Act, as

designated prior to April 1, 1997. In

removal proceedings, the TPCR will

apply to these same categories of aliens,

and also to aliens inadmissible under

section 212(a)(2) or 212(a)(3)(B) of the

Act. Again, the TPCR do not apply to

aliens in exclusion proceedings.

Aliens not subject to the TPCR will

fall within the general detention
48184 Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Proposed Rules

authority applicable to aliens in

deportation, exclusion, or removal

proceedings. Section 242(a)(1) of the Act

(as designated prior to April 1, 1997)

continues to govern the detention of

deportable aliens not falling within the

coverage of the TPCR. Sections 212(d)(5)

(as amended by Pub. L. 104–208) and

235(b) (as designated prior to April 1,

1997) of the Act continue to govern the

detention and parole of non-aggravated

felons in exclusion proceedings.

(Section 236(e) of the Act, as designated

prior to April 1, 1997, continues to

govern the detention of aggravated

felons in exclusion proceedings.)

Sections 235(b)(2) and 236(a) of the Act

govern the detention of aliens in

removal proceedings who are not

subject to the TPCR. The TPCR do not

affect the detention of aliens placed into

expedited removal proceedings under

section 235(b)(1) of the Act (as in effect

on April 1, 1997).

Only two classes of criminal aliens

subject to the TPCR may be considered

for release from custody. The first class

of releasable criminal aliens consists of

those who have been ‘‘lawfully

admitted.’’ The second class consists of

those who cannot be removed from the

United States because the designated

country of deportation or removal will

not accept their return.

As to the first class, the term

‘‘lawfully admitted’’ will have a slightly

different meaning in removal

proceedings than in deportation

proceedings. Without exception, any

alien in deportation proceedings or

subject to a final order of deportation

whose last entry into the United States

was lawful is ‘‘lawfully admitted’’ for

purposes of the TPCR. An alien in

deportation proceedings or subject to a

final order of deportation whose last

entry was unlawful will not be

considered ‘‘lawfully admitted’’ for

purposes of the TPCR (except that an

alien in deportation proceedings who

remains in status as a permanent

resident, conditional permanent

resident, or temporary resident shall be

considered ‘‘lawfully admitted’’ despite

an unlawful last entry). In contrast,

‘‘lawful admission’’ for aliens in

removal proceedings will be determined

according to the definition of

‘‘admission’’ in section 101(a)(13) of the

Act (as amended by Pub. L. No. 104–

208). Pursuant to the statutory

definition, an alien who last entered the

United States upon inspection and

authorization by an immigration officer

will be considered ‘‘lawfully admitted.’’

As to the second class of criminals

who may be considered for release

under the TPCR, i.e., those whose

designated country of deportation or

removal will not accept their return,

release authority will rest with the

Service district director (or other

appropriate INS officer), the official best

situated to review and assess

unremovability. The Service has

developed successful procedures for

review and, where appropriate, release

of aliens within this small subclass of

detainees. The Service’s determination

of unremovability will be final, and

custody determinations pursuant to

section 303(b)(3)(B)(ii) of IIRIRA will

not be subject to redetermination by

EOIR.

The statute provides that, in order to

be considered for release in the exercise

of discretion, criminal aliens subject to

the TPCR who fall within either of the

two releasable classes must demonstrate

that they will not pose a danger to the

safety of other persons or of property,

and will likely appear for any scheduled

proceeding, including immigration

hearings or other appearances required

by the Service or EOIR. Following

precedent decisions of the Board of

Immigration Appeals (Board)

interpreting similar language, the

inquiry into danger to persons and

property is separate from and precedes

the inquiry into flight risk. If the alien

cannot demonstrate the absence of

danger to persons or property, the

inquiry ends. Only upon such a

showing may the alien further

demonstrate the absence of flight risk in

order to be considered fro release in the

exercise of discretion.

The proposed rule establishes

uniform rules and standards for the

exercise of the discretion conferred by

the statute upon the Attorney General.

The overarching concern reflected in the

proposed rule is that aliens posing a

danger to persons or property remain in

custody until removed from the United

States. A second concern arises from the

high percentage of aliens released from

Service custody who abscond from

lawful processes and become fugitives.

In general, Congress has expressed in

IIRIRA a clear intention that criminal

aliens be detained, subject only to very

limited exceptions.

The proposed rule accommodates

these concerns by creating three classes

of criminal aliens subject to the TPCR.

The first class consists of criminals

judged by the Attorney General to

present, by reason of their prior

conviction or conduct, a danger to the

community or a flight risk so great as to

warrant a per se rule of non-release.

Aliens in this class include, for

example, those who have been

convicted of murder, rape, or sexual

abuse of a minor, and those who have

escaped or attempted to escape from the

lawful custody of a prison, government

agency, or officer.

The second class consists of criminal

aliens whose prior convictions or

conduct are sufficiently serious to

present a strong detention interest.

Aliens in this class would include, for

example, those who have been

convicted of controlled substance

trafficking or lawful firearm possession,

or who have failed to appear for a

criminal trial or for removal. In such

cases, detention will generally be

required, but two classes of lawfully

admitted aliens will be afforded an

opportunity to present countervailing

evidence and be considered for release:

(1) aliens lawfully admitted for

permanent residence; and (2) lawfully

admitted aliens who have remained free

of convictions, immigration violations,

and the like for an uninterrupted period

of ten years prior to the institution of

proceedings (not including any periods

of incarceration or detention). However,

lawfully admitted aliens from both

classes who are eligible to present

countervailing evidence must still

establish by clear and convincing

evidence that they pose no danger to the

safety of persons or of property and that

they are likely to appear for any

scheduled proceeding. As discussed

above, the meaning of ‘‘lawfully

admitted’’ will differ for aliens in

deportation proceedings and for those in

removal proceedings.

The third class consists of criminal

aliens who have been convicted of

lesser serious offenses, such as crimes of

theft with an aggregate sentence of less

than three years, and simple possession

of a controlled substance. In such cases,

lawfully admitted aliens will be subject

to the TPCR’s baseline criteria alone,

and may be considered for release upon

demonstrating, by clear and convincing

evidence, a lack of dangerousness and

an absence flight risk. Aliens in the

third class may still be found to present

extremely serious indicia of flight risk

or danger to the safety of persons or of

property, and it is expected that even in

this class only unusually compelling

cases will warrant release in the

exercise of discretion. Again, the

meaning of ‘‘lawfully admitted’’ will

differ for aliens in deportation

proceedings and for those in removal

proceedings.

The proposed rule sets forth the

governing standards both for the Service

and for EOIR. With some exceptions, the

provisions are parallel, and, as in the

past, the procedural regulations in

§ 3.19 operate pursuant to the

substantive regulations (her, in part 236)

implementing the detention and release

authority conferred in the statute. The
Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Proposed Rules 48185

immigration judges will generally

continue to exercise custody

redetermination jurisdiction over

deportable aliens and aliens who enter

without inspection (subject to the

exceptions and within the limits

established in the TPCR and in this

proposed rule). Aliens arriving at portsof-entry and other ‘‘arriving aliens’’

(including aliens paroled pursuant to

section 212(d)(5) of the Act) will remain

subject solely to the parole authority of

the Service.

The proposed rule also contains

provisions for a stay of an immigration

judge’s order redetermining custody

conditions when the Service appeals the

custody decision to the Board. The rule

provides for an automatic stay where

the alien is subject to the TPCR, section

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

the Act (as amended by AEDPA), and

the district director has set a bond of

$10,000 or more (or has denied bond

outright). The stay remains in effect

until the Board renders a decision on

the merits of the custody appeal.

In all other cases, the rule allows the

Service to file an appeal of the custody

decision with the Board, and an

emergency stay request in connection

with the appeal. The Board will than

have discretion to grant or deny the stay

request. These provisions provide an

added measure of assurance that

persons believed to present a danger to

the community or a risk of flight are not

released.

30-Day Comment Period

This rule is being proposed with a 30-

day notice and comment period due to

the urgent need for regulatory guidance

to Service officers and immigration

judges regarding application of the

TPCR.

Regulatory Flexibility Act

The Attorney General, in accordance

with the Regulatory Flexibility Act (5

U.S.C. 605(b)), has reviewed this

regulation and, by approving it, certifies

that this rule will not have a significant

economic impact on a substantial

number of small entities because it

affects individual aliens, not small

entities.

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any one year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement Act of

1996. This rule will not result in an

annual effect on the economy of $100

million or more; a major increase in

costs or prices; or significant adverse

effects on competition, employment,

investment, productivity, innovation, or

on the ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

Executive Order 12866

This rule is considered by the

Department of Justice, Immigration and

Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review.

Accordingly, this regulation has been

submitted to the Office of Management

and Budget for review.

Executive Order 12612

The regulation adopted herein will

not have substantial direct effects on the

States, on the relationship between the

National Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient federalism implication to

warrant the preparation of a Federalism

Assessment.

Executive Order 12988

This proposed rule meets the

applicable standards set forth in

sections 3(a) and 3(b)(2) of Executive

Order 12988.

List of Subjects

8 CFR Part 3

Administrative practice and

procedure, Immigration, Organization

and functions (Government agencies).

8 CFR Part 236

Administratvie practice and

procedure, Aliens, Immigration.

Accordingly, chapter I of title 8 of the

Code of Federal Regulations is proposed

to be amended as follows:

PART 3—EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

1. The authority citation for part 3 is

revised to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103,

1226, 1362; 28 U.S.C. 509, 510, 1746; sec. 2

Reorg. Plan No. 2 of 1950, 3 CFR, 1949–1953

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

208.

2. In § 3.19, paragraphs (h) and (i) are

added to read as follows:

§ 3.19 Custody/Bond.

* * * * *

(h)(1)(i) While the Transition Period

Custody Rules (TPCR) set forth in

section 303(b)(3) of Public Law 104–208

remain in effect, an immigration judge

may not redetermine conditions of

custody imposed by the Service with

respect to the following classes of

aliens:

(A) Aliens in exclusion proceedings;

(B) Arriving aliens in removal

proceedings, including persons paroled

after arrival pursuant to section

212(d)(5) of the Act;

(C) Aliens described in section

237(a)(4) of the Act;

(D) Aliens subject to section

303(b)(3)(A) of Public Law 104–208 who

are not ‘‘lawfully admitted’’ (as defined

in § 236.1(c)(3) of this chapter); or

(E) Aliens designated in § 236.1(c) of

this chapter as ineligible to be

considered for release.

(ii) Nothing in this paragraph shall be

construed as prohibiting an alien from

seeding a redetermination of custody

conditions by the Service in accordance

with part 235 or 236 of this chapter. In

addition, with respect to paragraphs

(h)(1)(i) (C), (D), and (E) of this section,

nothing in this paragraph shall be

construed as prohibiting an alien from

seeking a determination by an

immigration judge that the alien is not

properly included within those

paragraphs.

(2)(i) Upon expiration of the

Transition Period Custody Rules set

forth in section 303(b)(3) of Public Law

104–208, an immigration judge may not

redetermine conditions of custody

imposed by the Service with respect to

the following classes of aliens:

(A) Aliens in exclusion proceedings;

(B) Arriving aliens in removal

proceedings, including aliens paroled

after arrival pursuant to section

212(d)(5) of the Act;

(C) Aliens described in section

237(a)(4) of the Act;

(D) Aliens in removal proceedings

subject to section 236(c)(1) of the Act (as

in effect after expiration of the

Transition Period Custody Rules); and

(E) Aliens in deportation proceedings

subject to section 242(a)(2) of the Act (as

in effect prior to April 1, 1997, and as

amended by section 440(c) of Public

Law 104–132.

(ii) Nothing in this paragraph shall be

construed as prohibiting an alien from
48186 Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Proposed Rules

seeking a redetermination of custody

conditions by the Service in accordance

with part 235 or 236 of this chapter. In

addition, with respect to paragraphs

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

nothing in this paragraph shall be

construed as prohibiting an alien from

seeking a determination by an

immigration judge that the alien is not

properly included within those

paragraphs

(3) Except as otherwise provided in

paragraph (h)(1) of this section, an alien

subject to section 303(b)(3)(A) of Public

Law 104–208 may apply to the

Immigration Court, in a manner

consistent with paragraphs (c)(1)

through (c)(3) of this section, for a

redetermination of custody conditions

set by the Service. Such an alien must

first demonstrate, by clear and

convincing evidence, that release would

not pose a danger to other persons or to

property. If an alien meets this burden,

the alien must further demonstrate, by

clear and convincing evidence, that the

alien is likely to appear for any

scheduled proceeding or interview.

(4) Unremovable aliens. A

determination of a district director (or

other official designated by the

Commissioner) regarding the exercise of

authority under section 303(b)(3)(B)(ii)

of Public Law 104–208 (concerning

release of aliens who cannot be removed

because the designated country of

removal will not accept their return) is

final, and shall not be subject to

redetermination by an immigration

judge.

(i) Stay of custody order pending

Service appeal. (1) General emergency

stay authority. The Board of

Immigration Appeals (Board) has the

authority to stay the order of an

immigration judge redetermining the

conditions of custody of an alien when

the Service appeals the custody

decision. The Service is entitled to seek

an emergency stay form the Board in

connection with such an appeal at any

time.

(2) Automatic stay in certain cases. If

an alien is subject to section 242(a)(2) of

the Act (as in effect prior to April 1,

1997, and as amended by section 440(c)

of Public Law 104–132), section

303(b)(3)(A) of Public Law 104–208, or

section 236(c)(1) of the Act (as

designated on April 1, 1997), and the

district director has denied the alien’s

request for release or has set a bond of

$10,000 or more, any order of the

immigration judge authorizing release

(on bond or otherwise) shall be stayed

upon the Service’s filing of Form EOIR–

43 with the Immigration Court on the

day the order is issued, and shall remain

in abeyance pending decision of the

appeal by the Board of Immigration

Appeals. The stay shall lapse upon

failure of the Service to file a timely

notice of appeal in accordance with

§ 3.38.

PART 236—APPREHENSION AND

DETENTION OF INADMISSIBLE AND

DEPORTABLE ALIENS; REMOVAL OF

ALIENS ORDERED REMOVED

3. The authority citation for part 236

is revised to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1224, 1225,

1226, 1227, 1362; sec. 303(b) of Pub. L. No.

104–208; 8 CFR part 2.

4. Section 236.1 is amended by:

a. Revising paragraph (c)(1);

b. Redesignating paragraphs (c)(2)

through (c)(5), as paragraphs (c)(8)

through (c)(11) respectively; and by

c. Adding new paragraphs (c)(2)

through (c)(7), to read as follows:

§ 236.1 Apprehension, custody, and

detention.

* * * * *

(c) * * *

(1) (i) After the expiration of the

Transition Period Custody Rules (TPCR)

set forth in section 303(b)(3) of Public

Law 104–208, no alien described in

section 236(c)(1) of the Act may be

released from custody during removal

proceedings except pursuant to section

236(c)(2) of the Act.

(ii) Paragraphs (c)(2) through (c)(8) of

this section shall govern custody

determinations for aliens subject to the

TPCR while they remain in effect. For

purposes of this section, an alien

‘‘subject to the TPCR’’ is an alien

described in section 303(b)(3)(A) of

Public Law 104–208 who is in

deportation proceedings, subject to a

final order of deportation, or in removal

proceedings. The TPCR do not apply to

aliens in exclusion proceedings under

former section 236 of the Act, aliens in

expedited removal proceedings under

section 235(b)(1) of the Act, or aliens

subject to a final order of removal.

(2) Aliens not lawfully admitted.

Subject to paragraph (c)(6) of this

section, but notwithstanding any other

provision within this section, an alien

subject to the TPCR who is not lawfully

admitted is not eligible to be considered

for release from custody.

(i) An alien in deportation

proceedings or subject to a final order of

deportation is ‘‘lawfully admitted’’ for

purposes of this section if the alien’s

last entry into the United States was

lawful. An alien in deportation

proceedings or subject to a final order of

deportation whose last entry was

unlawful will not be considered

‘‘lawfully admitted’’ for purposes of this

section, unless the alien remains in

status as an alien lawfully admitted for

permanent residence, conditionally

admitted for permanent residence, or

lawfully admitted for temporary

residence.

(ii) An alien in removal proceedings

is ‘‘lawfully admitted’’ for purposes of

this section if the alien has been

‘’admitted’’ within the terms of section

101(a)(13) of the act (as in effect on

April 1, 1997).

(3) Criminal aliens eligible to be

considered for release. Except as

provided in this section, or otherwise

provided by law, an alien subject to the

TPCR may be considered for release

from custody if lawfully admitted. Such

an alien must first demonstrate, by clear

and convincing evidence, that release

would not pose a danger to the safety of

other persons or of property. If an alien

meets this burden, the alien must

further demonstrate, by clear and

convincing evidence, that the alien is

likely to appear for any scheduled

proceeding (including any appearance

required by the Service or EOIR) in

order to be considered for release in the

exercise of discretion.

(4) Criminal aliens ineligible to be

considered for release except in certain

special circumstances. An alien subject

to section 303(b)(3)(A) (ii) or (iii) of Pub.

L. No. 104–208 is ineligible to be

considered for release if the alien:

(i) Is described in section 241(a)(2)(C)

of the Act (as in effect prior to April 1,

1997), or has been convicted of a crime

described in section 101(a)(43) (B),

(E)(ii), or (F) of the Act (as in effect on

April 1, 1997);

(ii) Has been convicted of a crime

described in section 101(a)(43)(G) of the

Act (as in effect on April 1, 1997) or a

crime or crimes involving moral

turpitude related to property, and

sentenced therefor (including in the

aggregate) to at least 3 year’s

imprisonment;

(iii) Has failed to appear for an

immigration proceeding without

reasonable cause or has been subject to

a bench warrant or similar legal process

(unless quashed, withdrawn, or

canceled as improvidently issued);

(iv) Has been convicted of a crime

described in section 101(a)(43) (Q) or (T)

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

(v) Has been convicted in a criminal

proceeding of a violation of section 273,

274, 274C, 276, or 277 of the Act, or has

admitted the factual elements of such a

violation;

(vi) Has overstayed a period granted

for voluntary departure; or

(vii) Has failed to surrender or report

for removal pursuant to an order of

exclusion, deportation, or removal,
Federal Register / Vol. 62, No. 178 / Monday, September 15, 1997 / Proposed Rules 48187

unless the alien was lawfully admitted

and either remains in status as a

permanent resident or has not, since the

commencement of proceedings or

within the 10 years prior thereto, been

convicted of a crime, failed to comply

with an order to surrender or a period

of voluntary departure, or been subject

to a bench warrant or similar legal

process (unless quashed, withdrawn, or

canceled as improvidently issued). An

alien eligible to be considered for

release under this paragraph must meet

the burdens described in paragraph

(c)(3) of this section in order to be

released from custody in the exercise of

discretion.

(5) Criminal aliens ineligible to be

considered for release. A criminal alien

subject to section 303(b)(3)(A) (ii) or (iii)

of Pub. L. No. 104–208 is ineligible to

be considered for release if the alien:

(i) Is described in section 237(a)(2)(D)

(i) or (ii) (as in effect on April 1, 1997),

or has been convicted of a crime

described in section 101(a)(43) (A), (C),

(E)(i), (H), (I), (K)(iii), or (L) of the Act

(as in effect on April 1, 1997);

(ii) Is described in section

237(a)(2)(A)(iv) of the Act;

(iii) Has escaped or attempted to

escape from the lawful custody of a

local, state, or Federal prison, agency, or

officer within the United States; or

(iv) Does not wish to pursue, or is

statutorily ineligible for, any form of

relief from exclusion, deportation, or

removal under this chapter or the Act.

(6) If the district director determines

that an Alien subject to section

303(b)(3)(A) (ii) or (iii) of Pub. L. 104–

208 cannot be removed from the United

States because the designated country of

removal of deportation will not accept

the alien’s return, the district director

may, in the exercise of discretion,

release the alien from custody upon

such terms and conditions as the district

director may prescribe, without regard

to paragraphs (c)(2) through (c)(5) of this

section. Under no circumstances,

however, shall the district director

release from custody an alien whose

release would pose a danger to persons

or to property, or who is unlikely to

appear for any scheduled proceeding

(including any appearance required by

the Service or EOIR). The district

director’s custody decision shall not be

subject to redetermination by an

immigration judge.

(7) Construction. A reference in this

section to a provision in section 241 of

the Act as in effect prior to April 1,

1997, shall be deemed to include a

reference to the corresponding provision

in section 237 of the Act as in effect on

April 1, 1997. A reference in this section

to a ‘‘crime’’ shall be considered to

include a reference to a conspiracy or

attempt to commit such a crime. In

calculating the 10-year period specified

in paragraph (c)(4) of this section, no

period during which the alien was

detained or incarcerated shall count

toward the total. Nothing in this part

shall be construed as prohibiting an

alien from seeking reconsideration of

the Service’s determination that the

alien is within a category barred from

release under this part.

* * * * *

Dated: September 5, 1997.

Janet Reno,

Attorney General.

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

BILLING CODE 4410–10–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 97–NM–198–AD]

RIN 2120–AA64

Airworthiness Directives; Dassault

Model Falcon 2000 Series Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: This document proposes the

adoption of a new airworthiness

directive (AD) that is applicable to

certain Dassault Model Falcon 2000

series airplanes. This proposal would

require a revision to the Limitations

section of the FAA-approved Airplane

Flight Manual (AFM) to limit the

allowed loads in the baggage

compartment aft of the center baggage

net. The proposed AD also would

require replacement of the center

baggage net in the baggage compartment

with a net having reinforced straps,

which would terminate the requirement

for the AFM revision. This proposal is

prompted by a report indicating that the

center baggage net cannot sustain design

loads in the event of an accident. The

actions specified by the proposed AD

are intended to prevent injury to

passengers, as a result of inadequate

breaking strength of the baggage net, in

the event of an accident.

DATES: Comments must be received by

October 10, 1997.

ADDRESSES: Submit comments in

triplicate to the Federal Aviation

Administration (FAA), Transport

Airplane Directorate, ANM–103,

Attention: Rules Docket No. 97–NM–

198–AD, 1601 Lind Avenue SW,

Renton, Washington 98055–4056.

Comments may be inspected at this

location between 9:00 a.m. and 3:00

p.m., Monday through Friday, except

Federal holidays.

The service information referenced in

the proposed rule may be obtained from

Dassault Falcon Jet Corporation,

Teterboro Airport, P.O. Box 2000, South

Hackensack, New Jersey 07606. This

information may be examined at the

FAA, Transport Airplane Directorate,

1601 Lind Avenue SW, Renton,

Washington.

FOR FURTHER INFORMATION CONTACT: Tom

Groves, Aerospace Engineer,

Standardization Branch, ANM–113,

FAA, Transport Airplane Directorate,

1601 Lind Avenue, SW., Renton,

Washington 98055–4056; telephone

(425) 227–1503; fax (425) 227–1149.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to

participate in the making of the

proposed rule by submitting such

written data, views, or arguments as

they may desire. Communications shall

identify the Rules Docket number and

be submitted in triplicate to the address

specified above. All communications

received on or before the closing date

for comments, specified above, will be

considered before taking action on the

proposed rule. The proposals contained

in this notice may be changed in light

of the comments received.

Comments are specifically invited on

the overall regulatory, economic,

environmental, and energy aspects of

the proposed rule. All comments

submitted will be available, both before

and after the closing date for comments,

in the Rules Docket for examination by

interested persons. A report

summarizing each FAA-public contact

concerned with the substance of this

proposal will be filed in the Rules

Docket.

Commenters wishing the FAA to

acknowledge receipt of their comments

submitted in response to this notice

must submit a self-addressed, stamped

postcard on which the following

statement is made: ‘‘Comments to

Docket No. 97–NM–198–AD.’’ The

postcard will be date stamped and

returned to the commenter.

Availability of NPRMs

Any person may obtain a copy of this

NPRM by submitting a request to the

FAA, Transport Airplane Directorate,

ANM–103, Attention: Rules Docket No.

97–NM–198–AD, 1601 Lind Avenue

SW, Renton, Washington 98055–4056.