Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 /Rules and Regulations 27441

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

and Executive Office for Immigration

Review

8 CFR Parts 3 and 236

[INS No. 1855–97; AG Order No. 2152–98]

RIN 1115–AE88

Procedures for the Detention and

Release of Criminal Aliens by the

Immigration and Naturalization Service

and for Custody Redeterminations by

the Executive Office for Immigration

Review

AGENCY: Immigration and Naturalization

Service, and Executive Office for

Immigration Review, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the

regulations of the Immigration and

Naturalization Service (Service) and the

Executive Office for Immigration

Review (EOIR), establishing a regulatory

framework for the detention of criminal

aliens pursuant to the Transition Period

Custody Rules (TPCR) set forth in the

Illegal Immigration Reform and

Immigrant Responsibility Act of 1996

(IIRIRA). This rule is necessary to

provide uniform guidance to Service

officers and immigration judges (IJs)

regarding application of the TPCR.

DATES: This rule is effective June 18,

1998.

FOR FURTHER INFORMATION CONTACT:

Brad Glassman, Office of the General

Counsel, Immigration and

Naturalization Service, 425 I Street NW.,

Room 6100, Washington, DC 20536,

telephone (202) 305–0846.

SUPPLEMENTARY INFORMATION:

Background

On October 9, 1996, the

Commissioner of the Immigration and

Naturalization Service (Service) notified

Congress that the Service lacks the

detention space and personnel

necessary to comply with the mandatory

detention provisions of section 440(c) of

the Antiterrorism and Effective Death

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

104–132, 110 Stat. 1214, and section

236(c) of the Immigration and

Nationality Act (INA or Act), as

amended by the Illegal Immigration

Reform and Immigrant Responsibility

Act of 1996 (IIRIRA), Pub. L. 104–208,

Div. C, section 303(a), 110 Stat. 3009. By

operation of law, see IIRIRA section

303(b)(2), the notification resulted in the

temporary replacement of these

mandatory detention provisions with

the Transition Period Custody Rules

(TPCR) set forth in IIRIRA section

303(b)(3). A second notification on

September 29, 1997, continued the

TPCR in effect for an additional year.

The TPCR provide for the detention,

inter alia, of specified classes of

criminal aliens, and allow some of these

aliens to be considered for release in the

exercise of the Attorney General’s

discretion.

The Department of Justice

(Department) published a proposed rule

to implement the TPCR on September

15, 1997, at 62 FR 48183, with written

comments due by October 15, 1997. The

proposed rule established three

categories of criminal aliens for

purposes of detention and release under

the TPCR. Aliens in the first category

were subject to mandatory detention.

Aliens in the second category were

subject to mandatory detention except

in the case of lawful permanent resident

aliens and certain other lawfully

admitted aliens who had remained free

of crimes, immigration violations, and

the like for a 10-year period. Aliens

excepted from the second category and

aliens in the third category could be

considered for release on a case-by-case

basis, in the exercise of discretion.

The proposed rule also established

procedures for the Service to obtain a

stay of an immigration judge’s custody

decision in conjunction with an appeal

of the custody decision to the Board of

Immigration Appeals (Board). In

providing explicit authority for the

Service to seek an emergency stay, the

rule codified a long-standing

administrative practice. The rule

departed from present practice,

however, in providing for an automatic

stay in certain criminal cases where the

Service appeals the redetermination of a

bond set at $10,000 or more (including

an outright denial of bond). The Department has received a

number of public comments

recommending modifications of the

proposed rule. Because several of the

comments overlap or endorse the

submissions of other commenters, the

following discussion will address the

comments by topic rather than by

response to each comment individually.

General Rules Versus Ad Hoc

Adjudication

Several commenters objected to the

establishment of categories of nonreleasable deportable and inadmissible

criminal aliens based on factors strongly

indicating a poor bail risk. The

commenters expressed a preference for

case-by-case custody determinations in

all situations, criticizing categorical

rules as burdensome with respect to the

Service’s detention resources, less

flexible and nuanced than case-by-case

consideration, invasive of immigration

judges’ bond redetermination authority,

contrary to the TPCR, and, in the case

of permanent resident aliens,

unconstitutional.

The Department has carefully

considered the views of the

commenters, and will retain the basic

structure of the proposed rule, with

certain modifications. This rule

implements an important component of

a congressional and executive policy to

ensure the swift and certain removal of

aliens who commit serious crimes in

this country. The success of this policy,

in the estimation of both Congress and

the Department, significantly affects the

well being of the United States and its

law-abiding citizen, residents, and

visitors.

Congress’ near-complete power over

immigration transcends the specific

grant of authority in Article 1, Section

8 of the Constitution, and derives from

the ‘‘inherent and inalienable right of

every sovereign and independent

nation’’ to determine which aliens it

will admit or expel. Fong Yue Ting v.

United States, 149 U.S. 698, 711 (1893);

see also, e.g,. Landon v. Plasencia, 459

U.S. 21, 32 (1982) (‘‘[T]he power to

admit or exclude aliens is a sovereign

prerogative,’’); Kleindienst v. Mandel,

408 U.S. 753, 766–67 (1972) (‘‘ ‘Policies

pertaining to the entry of aliens and

their right to remain here are peculiarly

concerned with the political conduct of

government.’ ’’ (quoting Galvan v. Press,

347 U.S. 522, 531 (1954)); Flemming v.

Nestor, 363 U.S. 603, 616 (1960)

(describing ‘‘power of Congress to fix

the conditions under which aliens are to

be permitted to enter and remain in this

country’’ as ‘‘plenary’’); Harisiades v.

Shaughnessy, 342 U.S. 580, 587–88

(1952) (Power to remove even

permanent resident aliens is ‘‘confirmed

by international law as a power inherent

in every sovereign state.’’); Mahler v.

Eby, 264 U.S. 32, 39 (1924) (describing

as ‘‘unquestioned’’ the power of

Congress ‘’to rid the country of persons

who have shown by their career that

their continued presence here would

not make for the safety or welfare of

society’’). More than a century ago, the

Supreme Court upheld detention

as part of the means necessary to give effect

to the provisions for the exclusion of

expulsion of aliens * * *. Proceedings to

exclude or expel would be in vain if those

accused could not be held in custody

pending the inquiry into their true character

and while arrangements were being made for

their deportation.

Wong Wing v. United States, 163 U.S.

228, 235 (1896); see also Carlson v.

Landon, 342 U.S. 524, 538 (1952)

(‘‘Detention is
27442 Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 /Rules and Regulations

necessarily a part of this deportation

procedure. Otherwise aliens arrested for

deportation would have opportunities to

hurt the United States during the

pendency of deportation proceedings.’’).

It is therefore ‘‘axiomatic’’ that an

alien’s interest in being at liberty during

the course of immigration proceedings

is ‘‘narrow’’ and ‘‘circumscribed by

considerations of the national interest.’’

Doherty v. Thornburgh, 943 F.2d 204,

208, 208, 209 (2d Cir. 1991), cert.

dismissed 503 U.S. 901 (1992),

The detention of removable criminal

aliens during proceedings serves two

essential purposes: Ensuring removal by

preventing the alien from fleeing, and

protecting the community from further

criminal acts or other dangers. The

stakes for the Government are

considerable in this context. The

apprehension of a criminal alien who

absconds during the removal process is

expensive, time-consuming, and, in

many cases, dangerous both to

Government personnel and to civilians.

Failure to recover such an alien for

removal means not only scores of hours

wasted by immigration judges, Service

attorneys, interpreters, immigration

officers, and clerical and support staff,

but also a fugitive alien criminal beyond

the control of lawful process and at

large in the community. Released aliens

who abscond calculate—correctly—

‘‘that the INS lacks the resources to

conduct a dragnet.’’ Ofosu v. McElroy,

98 F.3d 694, 702 (2d Cir. 1996). As

further discussed below, abscondment

by criminal aliens subject to removal

has become disturbingly frequent. Beginning with the Anti-Drug Abuse

Act of 1988 (ADAA), Pub. L. 100–690,

102 Stat. 4181, continuing with the

Immigration Act of 1990 (Immact), Pub.

L. 101–649, 104 Stat. 4978, and

culminating with the recent enactment

of AEDPA and IIRIRA, successive

legislation over the past decade has

mandated increasingly severe

immigration consequences for aliens

convicted of serious crimes, and has

imposed restrictive detention conditions

on such aliens during removal

proceedings. Congress’ concern with

criminal aliens who flee or commit

additional crimes is plainly evident in

the detention provisions of the ADAA

and Immact, as amended by the

Miscellaneous and Technical

Immigration and Naturalization

Amendments of 1991, Pub. L. 102–232,

105 Stat. 1733 See 8 U.S.C. section 1252

(a)(2) (1995) (mandating detention of

aliens convicted of an aggravated felony

except upon demonstration of lawful

entry and lack of threat to community

and flight risk); 8 U.S.C. section 1226(e)

(1995) (mandating detention of aliens

convicted of an aggravated felony who

seek admission to the United States

except when home country refuses to

repatriate and alien demonstrates lack of

threat to community). The legislative

history of former section 242(a)(2) and

IIRIRA section 303 also reflects these

concerns. See S. Rep. No. 48, 104th

Cong., 1st Sess., 1995 WL 170285 (Apr.

7, 1995); 141 Cong. Rec. S7803, 7823

(daily ed. June 7, 1995) (statement of

Senator Abraham); see also Davis v.

Weiss, 749 F. Supp. 47, 50 (D. Conn.

1990); Morrobel v. Thornburgh, 744 F.

Supp. 725, 728 (E.D. Va. 1990)

(Legislators reasonably deemed

mandatory detention necessary because

aggravated felons ‘‘are likely to abscond

before the completion of the deportation

proceedings.’’).

These concerns motivated some of the

basic procedural reforms embodied in

IIRIRA. See, e.g., INA section 236(a)(2)

(raising minimum bond during

proceedings from $500 to $1,500);

236(c) (mandating detention of

criminals during proceedings); section

236(e) (barring judicial review of

discretionary custody determinations);

241(a) (requiring detention of aliens

during 90-day ‘‘removal period’’ after

final order). Congress has specifically

addressed the detention of removable

criminal aliens by greatly increasing

Service detention resources over several

years, and by expressing in IIRIRA a

clear intention that aliens removable

from the United States on the basis of

a crime be detained, except in very

limited circumstances, see INA section

236(c)(1), (2) (permanent provisions

mandating detention during

proceedings of most aliens removable

on criminal grounds); section 241(a)(2)

(‘‘Under no circumstances during the

removal period shall the Attorney

General release an alien who has been

found’’ removable on criminal or

terrorist grounds.). Discretion remains

under the statute only by virtue of

transitional rules enacted to ease the

burden of mandatory detention on the

Service’s detention resources.

Indeed, section 236(c) of IIRIRA

would now bar the release during

proceedings of most aliens removable

on criminal grounds, were it not for the

Service’s notification to Congress

invoking the TPCR. Having invoked the

TPCR on the basis of insufficient

detention resources, the Department

remains responsible for exercising its

temporary discretion in conformity with

congressional intent. In the

Department’s judgment, a carefully

crafted regime incorporating both caseby-case discretion and, where

appropriate, clear, uniform rules for

detention by category, best achieves that

goal.

The Department has retained the

structure of the proposed rule, including

its mandatory detention categories,

despite the commenters’ concern that

the rule encroaches on the authority of

immigration judges and lacks the

flexibility of a universal case-by-case

approach. The final rule preserves a

wide area of discretion for Service and

EOIR decision makers, but defines

limited situations in which a criminal

alien’s conduct warrants a per se rule of

detention. Case-by-case discretion

remains overwhelmingly the general

rule. Per se rules are drawn narrowly,

and only where, in the carefully

considered judgment of the Attorney

General, the danger of an erroneous

release is sufficiently grave, and the

danger of unwarranted detention during

proceedings sufficiently minimal, as to

tip the balance in favor of such a rule.

See Fook Hong Mak v. INS, 435 F.2d

728, 730 (2d Cir. 1970) (Agency

appropriately exercises discretion where

it ‘‘determines certain conduct to be so

inimical to the statutory scheme that all

persons who have engaged in it shall be

ineligible for favorable consideration,

regardless of other factors that otherwise

might tend in their favor.’’).

The Department disagrees with

comments suggesting that the TPCR

require case-by-case adjudication for all

‘‘lawfully admitted’’ criminal aliens.

The TPCR, by their terms, grant

discretion to the Attorney General to

consider certain categories of criminal

aliens for release. It does not specify

that that discretion be exercised by

adjudication rather than by rulemaking.

‘‘It is a well-established principle of

administrative law that an agency to

whom Congress grants discretion may

elect between rulemaking and ad hoc

adjudication to carry out its mandate.’’

Yang v. INS, 70 F.3d 932, 936 (9th Cir.

1996) (citing American Hosp. Assoc. v.

NLRB, 499 U.S. 606, 611–13 (1991);

NLRB v. Bell Aerospace Co., 416 U.S.

267, 294 (1974)). Agencies may resolve

matters of general applicability through

the promulgation of rules ‘‘even if a

statutory scheme requires

individualized determination * * *

unless Congress has expressed an intent

to withhold that authority.’’ American

Hosp., 499 U.S. at 613; see also Fook

Hong Mak, 435 F.2d at 731 (‘‘(I)t is

fallacious to reason that because

Congress prevented the Attorney

General from exercising any discretion

in favor of those groups[] which

Congress had found to have abused the

privileges accorded them, it meant to

require him to exercise it in favor of

everyone else on a case-by-case basis

even if experience should convince him
Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 /Rules and Regulations 27443

of the existence of another group with

similar potentialities or actualities of

abuse.’’ (emphasis in original)).

Reviewing courts have upheld the

Department’s rulemaking in this area in

light of these principles of

administrative law. For example, in

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

Supreme Court upheld a rule

categorically precluding the release of

detained juveniles not able to have

either a legal guardian or one of several

listed relatives assume custody. The

Court held the rule to be a permissible

exercise of the Attorney General’s

discretion, because it rationally

advanced a legitimate governmental

objective. Id. at 306. Similarly, in Yang,

the Ninth Circuit upheld a rule

categorically denying asylum, as a

matter of discretion, to aliens ‘‘firmly

resettled’’ prior to arrival in the United

States. In Fook Hong Mak, the Second

Circuit upheld a regulation barring,

again in the exercise of the Attorney

General’s discretion, any alien transiting

the United States without a visa from

adjusting status under section 245 of the

Act. Cf. Anetekhai v. INS, 876 F.2d

1218, 1223 (5th Cir. 1989) (Congress

may require all aliens who marry

citizens after the institution of

deportation proceedings to reside

outside United States for 2 years

without opportunity to demonstrate

bona fides of marriage.)

‘‘There is not doubt that preventing

danger to the community is a legitimate

regulatory goal.’’ United States v.

Salerno, 481 U.S. 739, 747 (1987).

Preventing abscondment by removable

criminal aliens, and doing so in a way

that minimizes waste of the Service’s

scarce enforcement resources and

promotes consistent application of the

law, are also legitimate goals. This rule

exercises a well-established rulemaking

authority of the Attorney General, in an

area of ‘‘sovereign prerogative, largely

within the control of the executive and

the legislative, ‘‘ Landon v. Plasencia,

459 U.S. 21, 34 (1982).

General Rules Versus Ad Hoc

Adjudication for Permanent Resident

Aliens

Several commenters emphasized the

special status of permanent resident

aliens. That status entails certain rights

with regard to removal proceedings, see

Landon v. Plasencia, supra, but does not

prohibit Congress or the Attorney

General from establishing categories of

criminal or terrorist permanent resident

aliens whose crimes or conduct

evidence a danger to the community or

a flight risk sufficiently serious to

require detention.

Nevertheless, the Department has long

maintained, and continues to maintain,

a policy of special care with regard to

procedural protections for permanent

resident aliens. This rulemaking does

not depart from that tradition.

Permanent resident aliens retain the full

panoply of rights and privileges in

removal proceedings. The final rule

affords a full discretionary custody

determination to nearly all permanent

resident aliens during such proceedings,

and makes exceptions only in the

extreme circumstances specified in

§ 236.1(c)(5).

The circumstances covered by

§ 236.1(c)(5) of the proposed rule

uniformly present compelling indicia of

flight risk and danger to the community.

First, to be subject to the TPCR, an alien

must have a serious criminal conviction

constituting a basis for removal from the

United States. (Indeed, not all crimes

constituting grounds for removal trigger

the TPCR.) Second, in order to be

subject to mandatory detention, a

permanent resident alien must either (1)

have escaped or attempted to escape

from a prison or other lawful

government custody; (2) have fled at

high speed from an immigration

checkpoint; or (3) have been convicted

of one of the crimes specified in

§ 236.1(c)(5)(i)(A). The specified crimes

include murder, rape, sexual abuse of a

minor, trafficking in firearms,

explosives, or destructive devices,

certain other explosive materials

offenses, kidnaping, extortion, child

pornography, selling or buying of

children, slavery, treason, sabotage,

disclosing classified information, and

revealing the identity of undercover

agents.

Further, to address the concerns

raised by commenters concerning

procedural protections for permanent

residents, the Department has also

modified the final rule in three ways as

it applies to permanent residents. First,

the final rule requires that an alien,

including one admitted as a

nonimmigrant, receive a sentence (or

sentences in the aggregate) of at least 2

years, not including portions

suspended, in order to trigger the

requirements of § 236.1(c)(5). Permanent

residents with less than the required

sentence of 2 years will be eligible for

an individualized custody

determination; other lawfully admitted

aliens with less than the required

sentence will be considered under

§ 236.1(c)(4). Second, the final rule will

exempt from § 236.1(c)(5) permanent

residents who have remained free of

convictions, immigration violations, and

the like for an uninterrupted period of

15 years prior to the institution of

proceedings (not including any periods

of incarceration or detention).

Finally, the final rule has been revised

to provide an individualized custody

determination to former permanent

residents subject to the TPCR who have

lost that status through a final order of

deportation under former section 242 of

the Act, and have been in Service

custody pursuant to the final order for

six months. The district director’s

decision may be appealed to the Board

of Immigration Appeals under existing

procedures. It is expected that releases

in this category of final-order criminal

cases will be rare, but the authority has

been incorporated for use in compelling

circumstances. Similar authority exists

under section 241 of the Act for removal

cases commenced on or after April 1,

1997. These three modifications will

further ensure adequate procedural

safeguards for the custody of permanent

resident aliens (and aliens challenging

the loss of such status through the

prescribed jurisdictional channels).

It is only within the extremely narrow

range of offenses specified in the

proposed rule, further narrowed by the

aforementioned modifications, that the

final rule requires detention of

permanent resident aliens without

discretionary release consideration. The

constitutional concerns expressed by

the commenters focus, therefore, on this

very limited class of cases, and

generally rest on the claim that due

process prohibits Congress and the

Attorney General from mandating the

detention of any class of permanent

resident aliens, regardless of the

character of their criminal or terrorist

offenses. The Department disagrees with

this position.

The Supreme Court has affirmed

much broader administrative authority

over detention of convicted criminals

even in areas of law not informed by the

‘‘plenary power’’ doctrine. Individuals

convicted of a crime have necessarily

received all the process required by the

criminal justice system; they have been

convicted on the basis of either a

voluntary guilty plea or a finding of

guilt beyond a reasonable doubt, with

opportunity for appeal and collateral

habeas corpus challenge. In this context,

the Supreme Court has upheld a general

congressional delegation of sentencing

authority to an independent agency

within the Judicial Branch. Mistretta v.

United States, 488 U.S. 361 (1989). If it

is permissible for an agency to subject

a U.S. citizen, upon conviction, to a

mandatory sentence without

individualized discretionary

consideration, it would seem even more

clearly permissible for the Attorney

General to require custody of a narrow
27444 Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 /Rules and Regulations

class of convicted criminal aliens

without individualized discretionary

consideration during the ensuing

proceedings to effect their removal. Cf.

Jone v. United States, 463 U.S. 354,

364–65 (1983) (‘‘The fact that a person

has been found, beyond a reasonable

doubt, to have committed a criminal act

certainly indicates dangerousness.’’)

(Approving civil commitment, based on

insanity plea in criminal proceeding, for

50 days without individualized

hearing). Indeed, the power upheld in

Mistretta is far broader than that

asserted here, applying to U.S. citizens

and criminal defendants, both of whom

enjoy extensive constitutional rights and

procedural protections beyond those

afforded to criminal aliens in civil

removal proceedings. See Mathews v.

Diaz, 426 U.S. 67, 79–80 (1976) (‘‘In the

exercise of its broad power over

naturalization and immigration,

Congress regularly makes rules that

would be unacceptable if applied to

citizens.’’); INS v. Lopez-Mendoza, 468

U.S. 1032, 1039–40 (1984) (cataloguing

constitutional procedural protections

guaranteed to criminal defendants but

not to aliens in deportation

proceedings).

The doctrine of plenary power

bolsters this conclusion. ‘‘ ‘For reasons

long recognized as valid, the

responsibility for regulating the

relationship between the United States

and our alien visitors has been

committed to the political branches of

the Federal Government.’ ’’ Flores, 507

U.S. at 305 (quoting Mathews v. Diaz,

supra, at 81); accord United States v.

Valenzuela-Bernal, 458 U.S. 858, 864

(1982) (‘‘The power to regulate

immigration—an attribute of sovereignty

essential to the preservation of any

nation—has been entrusted by the

Constitution to the political branches of

the Federal Government.’’). ‘‘ ‘(O)ver no

conceivable subject is the legislative

power of Congress more complete.’ ’’

Flores, 426 U.S. at 305 (quoting Fiallo v.

Bell, 430 U.S. 787, 792, (1977); Oceanic

Steam Navig. Co. v. Stranahan, 214 U.S.

320, 339 (1909)).

Accordingly, an immigration law is

constitutional if it is based upon a

‘‘facially legitimate and bona fide

reason.’’ Fiallo, 430 U.S. at 794–95;

Kleindienst v. Mandel, 408 U.S. 753,

770 (1972); Garcia v. INS, 7 F.3d 1320,

1327 (7th Cir. 1993). ‘‘Once a facially

legitimate and bona fide reason is

found, courts will neither look behind

the exercise of discretion, nor test it by

balancing its justification against the

constitutional interest asserted by those

challenging the statute.’’ Campos v. INS,

961 F.2d 309, 316 (1st Cir. 1992) (citing

Fiallo, 430 U.S. at 794–95). Courts have

applied this deferential test to sustain

the constitutionality of one of the

TPCR’s predecessor mandatory

detention statutes as applied to

permanent residents, Davis, 749 F.

Supp. at 50; Morrobel, 744 F. Supp. at

728, and the Supreme Court has applied

a similar test in its most recent case

addressing mandatory detention, Flores,

507 U.S. at 306 (upholding juvenile

alien detention regulation as ‘‘rationally

advancing some legitimate

governmental purpose’’).

Congress’ plenary power over

immigration extends to all non-citizens,

including permanent resident aliens.

Aliens

[w]hen legally admitted * * * have come at

the Nation’s invitation, as visitors or

permanent residents, to share with us the

opportunities and satisfactions of our land

* * * . So long, however, as aliens fail to

obtain and maintain citizenship by

naturalization, they remain subject to the

plenary power of Congress to expel them

under the sovereign right to determine what

noncitizens shall be permitted to remain

within our borders.

Carlson, 392 U.S. at 534 (upholding

immigration detention of permanent

resident alien); accord Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206

(1953) (affirming detention of returning

permanent resident alien); Harisiades v.

Shaughnessy, 342 U.S. 580, 587–88

(1952) (‘‘That aliens remain vulnerable

to expulsion after long residence is a

practice that bristles with severities. But

it is a weapon of defense and reprisal

confirmed by international law as a

power inherent in every sovereign state.

Such is the traditional power of the

Nation over the alien [,] and we leave

the law on the subject as we find it.’’).

Carlson v. Landon, 342 U.S. 524

(1952)—‘‘the leading case involving a

test of the legality of detention under

immigration laws, ‘‘Duldulao v. INS, 90

F.3d 396, 400 (9th Cir. 1996)—squarely

addresses the detention of permanent

resident aliens. The Supreme Court in

Carlson upheld the Attorney General’s

detention of permanent residents under

the Internal Security Act based solely on

evidence of their Communist Party

membership and support, without

requiring any individualized inquiry

into whether such aliens had ever

engaged in specific acts of sabotage or

subversion. 342 U.S. at 541. In essence,

the Court allowed active membership in

the Communist Party and espousal of its

ideology to be used as proxies for an

alien’s dangerousness. The present rule,

by contrast, relies on actual egregious

crimes or conduct of convicted

criminals as proxies for danger to the

community and flight risk. Cf. Morrobel,

744 F. Supp. at 728 (‘‘If there was no

abuse of discretion in detaining alien

communist in Carlson, it can hardly be

improper for Congress, having

determined that aliens convicted of

aggravated felonies * * * are a danger

to society, to direct the Attorney General

to detain them pending deportation

proceedings.’’); Davis, 749 F. Supp. at

51 (analogizing mandatory detention of

aggravated felons to detention upheld in

Carlson).

The Supreme Court has recently

applied the principles of Carlson to a

regulations mandating immigration

detention of certain juveniles by

category. Flores v. Reno, 507 U.S. 292

(1993). Flores recognizes the power of

Congress and the Attorney General to

establish detention rules that single out

classes of aliens for differing treatment,

without providing for an individualized

determination as to whether each

member of the class warrants such

treatment. When Congress or the

Attorney General does so, the only

process due is a determination of

whether the alien in fact belongs to the

class at issue.

Hence, the Court in Flores held that

the Service could, without violating

procedural or substantive due process,

enforce a regulation generally barring

the release of juvenile alien detainees,

other than those able to have a legal

guardian or certain specified close

relatives take custody. The Court

rejected arguments that the Service had

impressibly employed a ‘‘blanket

presumption’’ that other custodians

were unsuitable, and that the Service

must conduct ‘‘fully individualized’’

hearings on their suitability in each

case. Id. at 308, 313–14 & n.9. The

Service was not required, the Supreme

Court stated, to ‘‘forswear use of

reasonable presumptions and generic

rules.’’ Id. at 313. The Service needed

only make such individual

determinations as were necessary for

accurate application of the regulation,

such as ‘‘is there reason to believe the

alien deportable?’’, ‘‘is the alien under

18 years of age?’’, and does the alien

have an available adult relative or legal

guardian?’’ Id. at 313–14.

Like the regulation upheld in Flores,

the final rule provides for an

individualized hearing on whether an

alien in custody actually falls within a

category of aliens subject to mandatory

detention. In determining or

redetermining custody conditions, the

district director or IJ necessarily asks

such individualized questions as ‘‘is

this person an alien?’’, ‘‘is there reason

to believe that this person was

convicted of a crime covered by the

TPCR?’’, and ‘‘is there reason to believe

that this person falls within a category
Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 /Rules and Regulations 27445

barred from release under applicable

law?’’ If the district director or IJ

resolves these individualized questions

affirmatively, and thus ascertains that

the alien belongs to a class of convicted

criminals barred from release, ‘‘(t)he

particularization and individuation

need go no further than this,’’ id. at 314.

Under Flores, the IJ or district director

may validly enforce the regulatory

policy of detaining those classes of

aliens whose release has been

determined by Congress or the Attorney

General to present unacceptable risks.

Cf. Davis, 749 F.Supp. at 52 (‘‘The most

effective procedures are those already

built into (one of the TPCR’s

predecessors), namely those procedures

which ensure that the alien is rightfully

an ‘aggravated felon’ under the (INA)

and is properly subject to mandatory

detention.’’).

Plenary power confers upon Congress

the undisputed authority to curtail a

criminal permanent resident alien’s

right to remain in the United States. See,

e.g., Carlson v. Landon, 342 U.S. at 534

(‘‘The basis for the deportation of

presently undesirable aliens resident in

the United States is not questioned and

requires no reexamination.’’). Congress

has exercised this power in AEDPA and

IIRIRA by barring permanent residents

convicted of an aggravated felony from

seeking discretionary relief from

removal. The elimination of relief

considerably increases flight risk, see,

e.g., Bertrand v. Sava, 684 F.2d 204, 217

n.16 (2d Cir. 1982) (‘‘The fact that the

petitioners are unlikely to succeed on

their immigration applications * * *

suggests that they pose * * * a risk (to

abscond) if (released).’’), and thus

increases the need for detention of

aliens barred in this manner from

remaining in the United States.

The congressional power to compel

removal includes the power to effect

removal by the necessary use of

detention. ‘‘An alien’s freedom from

detention is only a variation on the

alien’s claim of an interest in entering

the country.’’ Clark v. Smith, 967 F.2d

1329, 1332 (9th Cir. 1992); see also

Carlson v. Landon, 342 U.S. at 538;

Wong Wing, 163 U.S. at 235; Doherty,

943 F.2d at 212 (‘‘(F)rom the outset of

his detention, Doherty has possessed, in

effect, the key that unlocks his prison

cell * * *. Because deportation was less

attractive to him than his present course

and because he had availed himself of

the statutory mechanisms provided for

aliens facing deportation, Doherty is

subject to the countervailing measures

Congress has enacted to ensure the

protection of national interests.’’). If

Congress may bar specified criminal

aliens from making discretionary

applications to remain in the United

States, it may also bar such criminals

from making discretionary applications

for release during removal proceedings,

especially when detention is a necessary

adjunct of the removal process, Carlson

v. Landon, supra, and the elimination of

relief itself creates overwhelming

incentives to abscond, Bertrand v. Sava,

supra.

Despite the broad congressional and

executive authority recognized and

consistently reaffirmed over the past

century by the Supreme Court, several

district courts have held mandatory

detention statutes unconstitutional

under the Due Process Clause of the

Fifth Amendment. See, e.g., St. John v.

McElroy, 917 F. Supp. 243, 247

(S.D.N.Y. 1996). In the Department’s

view, these district courts have

misapprehended the law of immigration

detention, and have failed to defer to

Congress and the Executive in matters of

immigration as required by the Supreme

Court’s teachings.

Some of the district court cases err in

applying to immigration detention the

standard for pre-trial criminal bail

determinations articulated in United

States v. Salerno, 481 U.S. 739, 747–51

(1987). See Kellman v. District Director,

750 F. Supp. 625, 627 (S.D.N.Y. 1990);

Leader v. Blackman, 744 F. Supp. 500,

507 (S.D.N.Y. 1990). The Supreme

Court, however, has rejected the

extension of Salerno in a postconviction context. Hilton v. Braunskill,

481 U.S. 770, 779 (1987) (‘‘[A]

successful (state) habeas petitioner is in

a considerably less favorable position

than a pretrial arrestee, such as the

respondent in Salerno, to challenge his

continued detention pending appeal.

Unlike a pretrial arrestee, a state habeas

petitioner has been adjudged guilty

beyond a reasonable doubt * * *.’’).

Similarly, in Doherty, the Second

Circuit determined that ‘‘a different

focus (from criminal bail standards)

must govern the determination of

constitutionality of pre-deportation

detention.’’ Doherty, 943 F.2d at 210

(citing Dor. v. District Director, INS, 891

F.2d 997, 1003 (2d Cir. 1989)). In

reviewing the constitutionality of an 8-

year detention, Doherty inquired only

into the presence of any bad faith or

invidious purpose in the Service’s

decision-making process. 943 F.2d at

210–11.

St. John and the other district court

cases invalidating mandatory detention

rules as applied to permanent residents

generally decline to apply the ‘‘facially

legitimate, bona fied reason’’ standard,

and instead engage in a balancing of

individual and governmental interests.

The balancing test set forth in Mathews

v. Eldridge, 424 U.S. 319 (1976), does

not, however, apply in the context of

immigration detention. The Ninth

Circuit had applied the Mathews test in

this manner in Flores v. Meese, 942 F.2d

1352, 1364 (9th Cir. 1991). The Supreme

Court reversed, and applied a different

test, requiring only that the challenged

regulation ‘‘meet the (unexacting)

standard of rationally advancing some

legitimate governmental purpose.’’

Flores, 507 U.S. at 306.

Even if a balancing of interests were

permitted—under governing case law, it

is not—the paramount interest of the

United States in removing criminal

aliens and protecting its citizens form

crime would outweigh any liberty

interest that an alien removable from the

United States on criminal grounds could

claim. ‘‘[A]n alien’s right to be at liberty

during the course of deportation

proceedings is circumscribed by

considerations of the national interest,’’

and is consequently ‘‘narrow.’’ Doherty,

943 F.2d at 208, 209; see also Flores 507

U.S. at 305 (‘‘If we harbored any doubts

as to the constitutionality of

institutional custody over

unaccompanied juveniles, they would

surely be eliminated as to those

juveniles * * * who are aliens.’’).

Moreover, because the TPCR apply in

removal cases only during proceedings,

and because the Board of Immigration

Appeals expedites detained cases on its

docket, the length of an alien’s

detention under this rule is necessarily

finite. Criminal aliens with an

enforceable final order of removal must

be detained and removed within 90

days; if not removed within that period,

such aliens become eligible for

discretionary release consideration. See

INA section 241(a). Criminal aliens

ordered deported or removed whose

home countries will not accept

repatriation may be considered for

release at any time in the discretion of

the Service, and permanent residents

who lose that status through a final

order of deportation may generally be

considered for release after six months.

These provisions eliminate the

possibility of indefinite detention

without discretionary review, and thus

avoid violation of any protected liberty

interest.

In contrast to the ‘‘narrow’’ liberty

interest of aliens removable on criminal

grounds, ‘‘[t]he government’s interest in

efficient administration of the

immigration laws at the border * * * is

weighty. Further, it must weigh heavily

in the balance that control over matters

of immigration is a sovereign

prerogative, largely within the control of

the executive and the legislature.’’

Landon v. Plasencia, 459 U.S. 21, 34
27446 Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 /Rules and Regulations

(1982). The Government’s interest in

maintaining the procedures embodied

in the final rule is also ‘‘weighty.’’ The

detention requirements for permanent

residents single out aliens with

egregious indicia of flight risk and

danger to the community. The risk of

recidivism and flight upon release is

unquestionably great for these aliens;

the risk of erroneous detention is

correspondingly low. The provisions of

the final rule reflect a legislative and

executive judgment that, for the limited

classes of criminal permanent resident

aliens specified in the rule,

discretionary release poses unacceptable

risks.

Individualized consideration of

discretionary release for these groups

would also impose considerable

administrative burdens on the

Government. In many instances, bond

hearings become an arena of protracted

and costly collateral litigation in their

own right, beyond and apart from the

extensive administrative processes for

determining removability, and the

criminal justice process. Although the

primary purposes of the final rule are to

protect the public and to ensure the

departure of aliens removable on

criminal grounds, administrative costs

are a legitimate consideration in

determining the best means to achieve

these objectives. Even under the

balancing analysis prohibited by Flores,

therefore, these governmental interests

would easily outweigh the ‘‘narrow’’

interest of an alien removable on

criminal grounds in making

applications to remain at large during

proceedings to effect removal.

The elemental error of Kellman, St.

John, and the cases that follow them lies

in their rejection of the Supreme Court’s

constitutional deference to Congress and

the Executive in matters of immigration.

The Kellman court acknowledges a

‘‘significant degree’’ of deference owed

to Congress’ substantive decisions

regarding deportability, but asserts that

‘‘the same deference is not mandated

when examining the way in which that

deportation is accomplished.’’Kellman,

750 F. Supp. at 627. That assertion finds

neither support nor solicitude in the

jurisprudence of the Supreme Court.

See, e.g., Flores, supra; Carlson v.

Landon, supra. The respondents in

Flores attempted this sort of distinction,

urging the Supreme Court to require

individualized discretionary custody

determinations, despite the plenary

power doctrine, as a matter of

‘‘procedural due process.’’ 507 U.S. at

308. The Court’s response was

unequivocal: ‘‘This is just the

‘substantive due process’ argument

recast in ‘procedural due process’ terms,

and we reject it for the same reasons.’’

Id.

In the Department’s view, the final

rule takes the least restrictive approach

to the detention of permanent residents

consistent with the dictates of public

safety and the important public policy

of removing aliens who have committed

serious crimes in this country. The

Department is confident that the final

rule provides adequate procedural

protections for the custody of

permanent resident aliens, and is aware

of no other means of ensuring the

requisite level of protection for the

public. This rule draws upon the

Department’s experience over time in

administering the immigration laws,

incorporates its careful consideration of

the individual and public interests at

stake, and reflects its understanding of

the will of Congress. In addressing these

concerns, the rule provides needed

reform of current procedures for the

detention of aliens, including

permanent resident aliens, who have

become subject to removal as a result of

crimes committed in this country.

The Meaning of ‘‘Lawfully Admitted’’

For aliens in removal proceedings, the

proposed rule construed the TPCR’s

term ‘‘lawfully admitted’’ by reference

to the definition of ‘‘admitted’’ in

section 101(a)(13) of the Act.

Accordingly, the proposed rule treated

returning permanent resident

‘‘applicants for admission’’ as not

‘‘lawfully admitted’’ under the TPCR,

and hence not eligible to be considered

for release. Several commenters urged

that the Department reconsider this

interpretation to recognize an exception

for permanent residents. Permanent

residents, even those returning from

abroad, remain ‘‘lawfully admitted for

permanent residence’’ until termination

of that status by a final administrative

order. 8 CFR 1.1(p). One commenter

argued, therefore, as follows:

New INA § 101(a)(13) provides that under

certain limited circumstances a lawful

permanent resident can be deemed to be

‘‘seeking admission into the United States.’’

But this individual nevertheless remains a

lawful permanent resident who is ‘‘lawfully

admitted’’ for purposes of discretionary

release from detention under the TPCR. In

short, the phrase ‘‘lawfully admitted’’ does

not necessarily mean ‘‘is not presently

seeking admission.’’ Indeed, the language of

§ 101(a)(13)—the very provision the INS

relies on to justify its new interpretation (in

the proposed rule)—keeps these concepts

distinct.

The Department has carefully

considered this and other similar

comments, and will revise its

interpretation in the final rule much

along the lines recommended by the

commenters.

The final rule will consider an

‘‘arriving alien’’ in removal proceedings

to be ‘‘lawfully admitted’’ for purposes

of the TPCR if (and only if) the alien

remains in status as a permanent

resident, conditional permanent

resident, or temporary resident.

Accordingly, such aliens may be

considered for parole in the discretion

of the Service.

The TPCR’s term ‘‘lawfully admitted’’

will apply consistently in deportation

and removal proceedings. In general, an

alien who remains in status as a

permanent resident, conditional

permanent resident, or temporary

resident will be considered ‘‘lawfully

admitted’’ for purposes of the TPCR.

Other aliens will be considered

‘‘lawfully admitted’’ only if they last

entered lawfully (and are not currently

applicants for admission).

This interpretation of the term

‘‘lawfully admitted’’ is not intended to

extend beyond the limited context of the

TPCR. Moreover, under this final rule,

a ‘‘lawfully admitted’’ alien will in

many cases remain an ‘‘applicant for

admission.’’ For example, as the Board

recently held in Matter of Collado, Int.

Dec. 3333 (BIA 1997), an arriving

permanent resident alien who has

committed an offense described in

section 212(a)(2) of the Act remains an

‘‘applicant for admission’’ unless

previously granted relief under sections

212(h) or 240A(a) of the Act. The same

will be true of an arriving permanent

resident alien who falls within the other

exceptions specified in section

101(a)(13)(C) (i)–(vi) of the Act.

Although ‘‘lawfully admitted’’ for

purposes of the TPCR during

proceedings, such an alien remains an

‘‘applicant for admission’’ and an

‘‘arriving alien,’’ charged under section

212 of the Act, and subject solely to the

parole authority of the Service.

Bond Jurisdiction of Immigration

Judges

One commenter asserted that the

TPCR require the Attorney General to

grant immigration judges bond authority

over arriving aliens in removal

proceedings and over aliens in

exclusion proceedings. As explained in

the notice of proposed rulemaking, the

TPCR do not, in the Department’s view,

apply in exclusion proceedings, because

they replace detention provisions

applicable in removal and deportation

proceedings, but do not replace the

analogous provision applicable in

exclusion proceedings. As regards

arriving aliens in removal proceedings,

the TPCR simply confer discretion upon
Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 /Rules and Regulations 27447

the Attorney General, leaving it to the

Department to determine which

subordinate officials will exercise

custody authority. The Department has

determined that parole authority will

remain exclusively with the Service, as

in the past. See generally Shaughnessy

v. United States ex rel. Mezei, 345 U.S.

206 (1953) (affirming Service’s decision

to detain returning permanent resident

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

(1955) (rejecting claim that custody

decision by Service officer violates Due

Process where Service initiates and

prosecutes proceeding).

Automatic Stay of Certain Criminal

Custody Redeterminations To Preserve

Status Quo for Appeal

The proposed rule included a

provision allowing the Service to

request an emergency stay of an

immigration judge’s order redetermining

custody conditions when the Service

appeals the custody decision to the

Board of Immigration Appeals. The rule

also provided for an automatic stay of

the immigration judge’s custody

redetermination where the alien is

subject to the TPCR, section 440(c) of

AEDPA, or section 236(c) of the Act,

and the district director has set a bond

of $10,000 or more (including outright

denial of bond). Both of these provisions

were included as permanent revisions,

without regard to the expiration of the

TPCR.

Several commenters objected to the

automatic stay provision, arguing that it

encroaches on the authority of

immigration judges, incorporates a

criterion (initial bond amount) not

adequately indicative of bail risk, and

encourages district directors to set high

bonds to fortify their custody decisions

against reversal. The Department has

carefully considered these comments,

and will retain the automatic stay

provision in the final rule without

modification.

Even accepting that initial bond

amounts are an imperfect measure of

bail risk, the automatic stay does not

trigger in all cases meeting the $10,000

threshold. Rather, the $10,000 threshold

and the requirement of a serious

criminal offense provide the basis for a

considered determination by the Service

to seek an automatic stay in aid of a

custody appeal. Custody appeals are

themselves unusual, undertaken only in

compelling cases, and subject to review

by responsible senior officials within

the Service. It is expected that such

appeals will remain exceptional, and

that Service district directors will

continue to set custody conditions

according to their best assessment of the

bail risk presented in each case.

The interests served by the automatic

stay are considerable, even if the

provision only occasionally comes into

play. A custody decision that allows for

immediate release is effectively final if,

as the Service appeal would necessarily

assert, the alien turns out to be a serious

flight risk or a danger to the community.

In such a case, the appeal provides little

benefit to the agencies exerting efforts to

effect removal, and less still to the

community receiving the dangerous or

absconding alien criminal back into its

midst. The automatic stay provides a

safeguard to the public, preserving the

status quo briefly while the Service

seeks expedited appellate review of the

immigration judge’s custody decision.

The Board of Immigration Appeals

retains full authority to accept or reject

the Service’s contentions on appeal.

Treatment of Criminal Aliens Not

Eligible for Relief from Removal

Several commenters objected to the

provision in § 236.1(c)(5)(iv) of the

proposed rule requiring detention of

criminal aliens under the TPCR who do

not wish to pursue relief from removal,

or who lack eligibility for such relief.

The provision reflects the consideration

that such an alien has little incentive to

appear for proceedings, and hence

almost always poses a serious bail risk.

Nevertheless, the Department has

reconsidered the inclusion of this

provision in § 236.1(c)(5), and will

include it instead in § 236.1(c)(4) of the

final rule. Hence, permanent residents

and aliens with old convictions and no

subsequent indicia of bail risk will be

eligible to be considered for release even

where they lack or decline to pursue

options for relief from removal. The

Department would expect, however,

only the most sparing use of this

discretionary authority.

Two commenters objected that bond

proceedings during the early stages of

the removal process provide a poor

forum to assess eligibility for relief. The

Department understands this concern,

and does not anticipate a conclusive

showing of eligibility by the alien at this

stage of proceedings. Rather, the rule

reflects the practical reality that

occasions do arise when plainly no

relief exists or the alien does not wish

to pursue relief. In those situations,

discretionary release of a criminal alien

is generally inappropriate.

Meaning of ‘‘when the alien is

released’’

One commenter asserted that the

TPCR apply only to criminal aliens

released directly from incarceration into

Service custody. The Department has

considered this comment, and rejects it

for the reasons stated by the Board of

Immigration Appeals in Matter of Noble,

Int. Dec. 3301 (BIA 1997).

Limited Appearances in Bond

Proceedings

One commenter requested that the

final rule incorporate new provisions

authorizing limited attorney

appearances in bond proceedings, i.e.,

without obligation to represent the alien

in removal proceedings. The subject

matter of this comment concerns the

terms of attorney representation and

exceeds the substantive scope of this

rulemaking. The Department remains

open, however, to working with

interested individuals and organizations

to refine and improve its regulations in

this and other areas within its authority.

Technical and Conforming

Amendments

The final rule corrects 8 CFR 3.6(a) to

eliminate an outdated internal crossreference, and corrects § 3.6(a) and

§ 236.1(d)(4) to conform with the final

rule’s provisions for stays of custody

redeterminations by immigration judges.

The final rule also clarifies the proposed

§ 236.1(c)(4) by changing the placement

of language excepting permanent

resident aliens from the detention

requirements of that paragraph.

Effect on Detention Resources

The Department has taken into

consideration the effect of the final rule

on Service detention resources, and

expects a management impact.

Regulatory Flexibility Act

The Attorney General, in accordance

with the Regulatory Flexibility Act (5

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

regulation and, by approving it, certifies

that this rule will not have a significant

economic impact on a substantial

number of small entities because it

affects individual aliens, not small

entities.

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any 1 year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 804 of the Small
27448 Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 /Rules and Regulations

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 to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review.

Accordingly, this regulation has been

submitted to the Office of Management

and Budget for review.

Executive Order 12612

The regulation adopted herein will

not have substantial direct effects on the

States, on the relationship between the

National Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient federalism implications

to warrant the preparation of a

Federalism Assessment.

Executive Order 12988 Civil Justice

Reform

This rule meets the applicable

standards set forth in sections 3(a) and

3(b)(2) of Executive Order 12988.

List of Subjects

8 CFR Part 3

Administrative practice and

procedure, Immigration, Organization

and functions (Government agencies).

8 CFR Part 236

Administrative practice and

procedure, Aliens, Immigration.

Accordingly, chapter I of title 8 of the

Code of Federal Regulations is amended

as follows:

PART 3—EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

1. The authority citation for part 3 is

revised to read as follows:

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

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

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

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

208, Div. C.

§ 3.6 [Amended]

2. In § 3.6, paragraph (a) is amended

by revising the reference to ‘‘242.2(d) of

this chapter’’ to read ‘‘236.1 of this

chapter, § 3.19(i),’’.

3. In § 3.19, paragraph (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 Div. C of Pub. L.

104–208 remain in effect, an

immigration judge may not redetermine

conditions of custody imposed by the

Service with respect to the following

classes of aliens:

(A) Aliens in exclusion proceedings;

(B) Arriving aliens in removal

proceedings, including persons paroled

after arrival pursuant to section

212(d)(5) of the Act;

(C) Aliens described in section

237(a)(4) of the Act;

(D) Aliens subject to section

303(b)(3)(A) of Pub. L. 104–208 who are

not ‘‘lawfully admitted’’ (as defined in

§ 236.1(c)(2) 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

seeking a redetermination of custody

conditions by the Service in accordance

with part 235 or 236 of this chapter. In

addition, with respect to paragraphs

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

nothing in this paragraph shall be

construed as prohibiting an alien from

seeking a determination by an

immigration judge that the alien is not

properly included within any of those

paragraphs.

(2)(i) Upon expiration of the

Transition Period Custody Rules set

forth in section 303(b)(3) of Div. C. of

Pub. L. 104–208, an immigration judge

may not redetermine conditions of

custody imposed by the Service with

respect to the following classes of

aliens:

(A) Aliens in exclusion proceedings;

(B) Arriving aliens in removal

proceedings, including aliens paroled

after arrival pursuant to section

212(d)(5) of the Act;

(C) Aliens described in section

237(a)(4) of the Act;

(D) Aliens in removal proceedings

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

in effect after expiration of the

Transition Period Custody Rules); and

(E) Aliens in deportation proceedings

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

in effect prior to April 1, 1997, and as

amended by section 440(c) of Pub. L.

104–132).

(ii) Nothing in this paragraph shall be

construed as prohibiting an alien from

seeking a redetermination of custody

conditions by the Service in accordance

with part 235 or 236 of this chapter. In

addition, with respect to paragraphs

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

nothing in this paragraph shall be

construed as prohibiting an alien from

seeking a determination by an

immigration judge that the alien is not

properly included within any of those

paragraphs.

(3) Except as otherwise provided in

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

subject to section 303(b)(3)(A) of Div. C

of Pub. L. 104–208 may apply to the

Immigration Court, in a manner

consistent with paragraphs (c)(1)

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

redetermination of custody conditions

set by the Service. Such an alien must

first demonstrate, by clear and

convincing evidence, that release would

not pose a danger to other persons or to

property. If an alien meets this burden,

the alien must further demonstrate, by

clear and convincing evidence, that the

alien is likely to appear for any

scheduled proceeding or interview.

(4) Unremovable aliens. A

determination of a district director (or

other official designated by the

Commissioner) regarding the exercise of

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

of Div. C. of Pub. L. 104–208

(concerning release of aliens who

cannot be removed because the

designated country of removal will not

accept their return) is final, and shall

not be subject to redetermination by an

immigration judge.

(i) Stay of custody order pending

Service appeal: (1) General emergency

stay authority. The Board of

Immigration Appeals (Board) has the

authority to stay the order of an

immigration judge redetermining the

conditions of custody of an alien when

the Service appeals the custody

decision. The Service is entitled to seek

an emergency stay for the Board in

connection with such an appeal at any

time.

(2) Automatic stay in certain cases. If

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

the Act (as in effect prior to April 1,

1997, and as amended by section 440(c)

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

of Div. C of Pub. L. 104–208, or section

236(c)(1) of the Act (as designated on

April 1, 1997), and the district director

has denied the alien’s request for release

or has set a bond of $10,000 or more,

any order of the immigration judge

authorizing release (on bond or

otherwise) shall be stayed upon the

Service’s filing of a Notice of Service

Intent to Appeal Custody

Redetermination (Form EOIR–43) with

the Immigration Court on the day the

order is issued, and shall remain in
Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 /Rules and Regulations 27449

abeyance pending decision of the appeal

by the Board of Immigration Appeals.

The stay shall lapse upon failure of the

Service to file a timely notice of appeal

in accordance with § 3.38.

PART 236—APPREHENSION AND

DETENTION OF INADMISSIBLE AND

DEPORTABLE ALIENS; REMOVAL OF

ALIENS ORDERED REMOVED

3. The authority citation for part 236

is revised to read as follows:

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

1226, 1227, 1362; sec. 303(b) of Div. C of Pub.

L. No. 104–208; 8 CFR part 2.

4. Section 236.1 is amended by:

a. Revising paragraphs (c)(1) and

(d)(4);

b. Redesignating paragraphs (c)(2)

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

through (c)(11) respectively and by

revising newly redesignated paragraph

(c)(11); and by

(c) Adding new paragraphs (c)(2)

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

§ 236.1 Apprehension, custody, and

detention.

* * * * *

(c) * * *

(1) In general. (i) After the expiration

of the Transition Period Custody Rules

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

Div. C of Pub. L. 104–208, no alien

described in section 236(c)(1) of the Act

may be released from custody during

removal proceedings except pursuant to

section 236(c)(2) of the Act.

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

this section shall govern custody

determinations for aliens subject to the

TPCR while they remain in effect. For

purposes of this section, an alien

‘‘subject to the TPCR’’ is an alien

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

C of Pub. L. 104–208 who is in

deportation proceedings, subject to a

final order of deportation, or in removal

proceedings. The TPCR do not apply to

aliens in exclusion proceedings under

former section 236 of the Act, aliens in

expedited removal proceedings under

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

subject to a final order of removal.

(2) Aliens not lawfully admitted.

Subject to paragraph (c)(6)(i) of this

section, but notwithstanding any other

provision within this section, an alien

subject to the TPCR who is not lawfully

admitted is not eligible to be considered

for release from custody.

(i) An alien who remains in status as

an alien lawfully admitted for

permanent residence, conditionally

admitted for permanent residence, or

lawfully admitted for temporary

residence is ‘‘lawfully admitted’’ for

purposes of this section.

(ii) An alien in removal proceedings,

in deportation proceedings, or subject to

a final order of deportation, and not

described in paragraph (c)(2)(i) of this

section, is not ‘‘lawfully admitted’’ for

purposes of this section unless the alien

last entered the United States lawfully

and is not presently an applicant for

admission to the United States.

(3) Criminal aliens eligible to be

considered for release. Except as

provided in this section, or otherwise

provided by law, an alien subject to the

TPCR may be considered for release

from custody if lawfully admitted. Such

an alien must first demonstrate, by clear

and convincing evidence, that release

would not pose a danger to the safety of

other persons or of property. If an alien

meets this burden, the alien must

further demonstrate, by clear and

convincing evidence, that the alien is

likely to appear for any scheduled

proceeding (including any appearance

required by the Service or EOIR) in

order to be considered for release in the

exercise of discretion.

(4) Criminal aliens ineligible to be

considered for release except in certain

special circumstances. An alien, other

than an alien lawfully admitted for

permanent residence, subject to section

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

L. 104–208 is ineligible to be considered

for release if the alien:

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

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

1997), or has been convicted of a crime

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

or (F) of the Act (as in effect on April

1, 1997);

(ii) Has been convicted of a crime

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

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

crime or crimes involving moral

turpitude related to property, and

sentenced therefor (including in the

aggregate) to at least 3 years’

imprisonment;

(iii) Has failed to appear for an

immigration proceeding without

reasonable cause or has been subject to

a bench warrant or similar legal process

(unless quashed, withdrawn, or

cancelled as improvidently issued);

(iv) Has been convicted of a crime

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

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

(v) Has been convicted in a criminal

proceeding of a violation of section 273,

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

admitted the factual elements of such a

violation;

(vi) Has overstayed a period granted

for voluntary departure;

(vii) Has failed to surrender or report

for removal pursuant to an order of

exclusion, deportation, or removal;

(viii) Does not wish to pursue, or is

statutorily ineligible for, any form of

relief from exclusion, deportation, or

removal under this chapter or the Act;

or

(ix) Is described in paragraphs

(c)(5)(i)(A), (B), or (C) of this section but

has not been sentenced, including in the

aggregate but not including any portions

suspended, to at least 2 years’

imprisonment, unless the alien was

lawfully admitted and has not, since the

commencement of proceedings and

within the 10 years prior thereto, been

convicted of a crime, failed to comply

with an order to surrender or a period

of voluntary departure, or been subject

to a bench warrant or similar legal

process (unless quashed, withdrawn, or

cancelled as improvidently issued). An

alien eligible to be considered for

release under this paragraph must meet

the burdens described in paragraph

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

released from custody in the exercise of

discretion.

(5) Criminal aliens ineligible to be

considered for release. (i) A criminal

alien subject to section 303(b)(3)(A)(ii)

or (iii) of Div. C of Pub. L. 104–208 is

ineligible to be considered for release if

the alien has been sentenced, including

in the aggregate but not including any

portions suspended, to at least 2 years’

imprisonment, and the alien

(A) Is described in section

237(a)(2)(D)(i) or (ii) of the Act (as in

effect on April 1, 1997), or has been

convicted of a crime described in

section 101(a)(43)(A), (C), (E)(i), (H), (I),

(K)(iii), or (L) of the Act (as in effect on

April 1, 1997);

(B) Is described in section

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

(C) Has escaped or attempted to

escape from the lawful custody of a

local, State, or Federal prison, agency,

or officer within the United States.

(ii) Notwithstanding paragraph

(c)(5)(i) of this section, a permanent

resident alien who has not, since the

commencement of proceedings and

within the 15 years prior thereto, been

convicted of a crime, failed to comply

with an order to surrender or a period

of voluntary departure, or been subject

to a bench warrant or similar legal

process (unless quashed, withdrawn, or

cancelled as improvidently issued), may

be considered for release under

paragraph (c)(3) of this section.

(6) Unremovable aliens and certain

long-term detainees. (i) If the district

director determines that an alien subject

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

C of Pub. L. 104–208 cannot be removed

from the United States because the

designated country of removal or

deportation will not accept the alien’s
27450 Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 /Rules and Regulations

return, the district director may, in the

exercise of discretion, consider release

of the alien from custody upon such

terms and conditions as the district

director may prescribe, without regard

to paragraphs (c)(2), (c)(4), and (c)(5) of

this section.

(ii) The district director may also,

notwithstanding paragraph (c)(5) of this

section, consider release from custody,

upon such terms and conditions as the

district director may prescribe, of any

alien described in paragraph (c)(2)(ii) of

this section who has been in the

Service’s custody for six months

pursuant to a final order of deportation

terminating the alien’s status as a lawful

permanent resident.

(iii) The district director may release

an alien from custody under this

paragraph only in accordance with the

standards set forth in paragraph (c)(3) of

this section and any other applicable

provisions of law.

(iv) The district director’s custody

decision under this paragraph shall not

be subject to redetermination by an

immigration judge, but, in the case of a

custody decision under paragraph

(c)(6)(ii) of this section, may be

appealed to the Board of Immigration

Appeals pursuant to paragraph (d)(3)(iii)

of this section.

(7) Construction. A reference in this

section to a provision in section 241 of

the Act as in effect prior to April 1,

1997, shall be deemed to include a

reference to the corresponding provision

in section 237 of the Act as in effect on

April 1, 1997. A reference in this section

to a ‘‘crime’’ shall be considered to

include a reference to a conspiracy or

attempt to commit such a crime. In

calculating the 10-year period specified

in paragraph (c)(4) of this section and

the 15-year period specified in

paragraph (c)(5) of this section, no

period during which the alien was

detained or incarcerated shall count

toward the total. References in

paragraph (c)(6)(i) of this section to the

‘‘district director’’ shall be deemed to

include a reference to any official

designated by the Commissioner to

exercise custody authority over aliens

covered by that paragraph. Nothing in

this part shall be construed as

prohibiting an alien from seeking

reconsideration of the Service’s

determination that the alien is within a

category barred from release under this

part.

* * * * *

(11) An immigration judge may not

exercise the authority provided in this

section, and the review process

described in paragraph (d) of this

section shall not apply, with respect to

any alien beyond the custody

jurisdiction of the immigration judge as

provided in § 3.19(h) of this chapter.

(d) * * *

(4) Effect of filing an appeal. The

filing of an appeal from a determination

of an immigration judge or district

director under this paragraph shall not

operate to delay compliance with the

order (except as provided in § 3.19(i)),

nor stay the administrative proceedings

or removal.

* * * * *

Dated: May 12, 1998.

Janet Reno,

Attorney General.

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

BILLING CODE 4410–10–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 98–ANE–30–AD; Amendment

39–10527; AD 98–10–15]

RIN 2120–AA64

Airworthiness Directives; AlliedSignal

Inc. Model TFE731–40R-200G Turbofan

Engines

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Final rule; request for

comments.

SUMMARY: This amendment adopts a

new airworthiness directive (AD) that is

applicable to AlliedSignal Inc. Model

TFE731–40R–200G turbofan engines.

This action requires replacing the fuel

line between the main fuel pump and

the motive flow pump with a

serviceable assembly and adding a

supporting bracket and clamp. This

amendment is prompted by a report of

a cracked fuel line between the main

fuel pump and the motive flow pump

causing the spraying of fuel on and

around electrical components. The

actions specified in this AD are

intended to prevent fuel spraying on

and around electrical components due

to a cracked fuel line, which could

result in an engine fire.

DATES: Effective May 19, 1998.

The incorporation by reference of

certain publications listed in the

regulations is approved by the Director

of the Federal Register as of May 19,

1998.

Comments for inclusion in the Rules

Docket must be received on or before

July 20, 1998.

ADDRESSES: Submit comments in

triplicate to the Federal Aviation

Administration (FAA), New England

Region, Office of the Regional Counsel,

Attention: Rules Docket No. 98–ANE–

30–AD, 12 New England Executive Park,

Burlington, MA 01803–5299. Comments

may also be sent via the Internet using

the following address: ‘‘9-adengineprop@faa.dot.gov’’. Comments

sent via the Internet must contain the

docket number in the subject line.

The service information referenced in

this AD may be obtained from

AlliedSignal Aerospace Services Attn:

Data Distribution, M/S 64–3/2101–201,

P.O. Box 29003, Phoenix, AZ 85038–

9003; telephone (602) 365–2493, fax

(602) 365–5577. This information may

be examined at the FAA, New England

Region, Office of the Regional Counsel,

12 New England Executive Park,

Burlington, MA; or at the Office of the

Federal Register, 800 North Capitol

Street, NW., suite 700, Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Joseph Costa, Aerospace Engineer, Los

Angeles Aircraft Certification Office,

FAA, Transport Airplane Directorate,

3960 Paramount Blvd., Lakewood, CA

90712–4137; telephone (562) 627–5246,

fax (562) 627–5210.

SUPPLEMENTARY INFORMATION: The

Federal Aviation Administration (FAA)

has received a report of a cracked fuel

line between the main fuel pump and

the motive flow pump causing the

spraying of fuel on and around electrical

components on an AlliedSignal Inc.

Model TFE731–40R–200G turbofan

engine. While taxiing after flight, the

ground crew noted a fuel leak from the

right hand engine of an Israel Aircraft

Industries, LTD. (IAI) Astra SPX aircraft.

The fuel line, part number (P/N)

3061191–1, between the main fuel

pump and the motive flow pump, was

found cracked at the weld of the elbow

fitting. The right-hand engine had

accumulated 8 operating hours. The

investigation revealed that during

manufacturing of the fuel line between

the main fuel pump and the motive flow

pump, inadequate weld penetration was

created by an orbital weld operation.

The lack of penetration was not

identified by the post-weld X-ray

inspection. The fracture of the fuel line

was due to high cycle fatigue which

initiated at the localized area of

incomplete weld penetration. This

condition, if not corrected, could result

in fuel spraying on and around

electrical components due to a cracked

fuel line, which could result in an

engine fire.

The FAA has reviewed and approved

the technical contents of AlliedSignal

Inc. Alert Service Bulletin (ASB) No.

TFE731–A73–5111, dated April 16,