INS Publishes Rules for Detainees Who Have Been Ordered Removed but Cannot Be Repatriated

IMMIGRATION LAW & POLICY

Arrest and Detention

INS PUBLISHES RULES FOR DETAINEES WHO HAVE BEEN ORDERED REMOVED BUT CANNOT BE REPATRIATED
Immigrants' Rights Update, Vol. 15, No. 1, Feb. 28, 2001

The Immigration and Naturalization Service has issued new regulations that lay out uniform procedures for determining if or when detainees may be released from INS custody if they have been ordered removed from the United States but cannot be sent back to their countries of origin because their countries will not accept them.

Section 241(a)(1) of the Immigration and Nationality Act requires the INS to remove individuals from the U.S. within 90 days of the date they are issued final orders of removal. However, several countries, such as Vietnam, Cambodia, Laos, and Cuba, have no repatriation agreements with the U.S. Thus, until a recent ruling handed down by the Ninth Circuit Court of Appeals, individuals from such countries who had final orders of removal simply languished in prisons or INS detention centers.

Courts of appeal have reached conflicting rulings on the indefinite detention of such persons. The Fifth and the Tenth Circuits have upheld the U.S. attorney general's authority to keep such persons in detention after the 90-day "removal period." See Duy Dac Ho v. Joseph Greene, 204 F.3d 1045 (10th Cir. 2000), Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999), cert. granted, 121 S.Ct. 297 (2000). In contrast, the Ninth Circuit has held that the detention of such persons may not be extended more than a "reasonable" time beyond the 90-day period provided for by the statute. See Ma v. Reno, 208 F.3d 815, 822 (9th Cir. 2000), cert. granted, 121 S.Ct. 297 (2000). The U.S. Supreme Court recently granted certiorari in the Zadvydas and Ma cases.

The INS's new regulations regarding release determinations for persons detained indefinitely, which were issued on Dec. 21, 2000, supercede the guidance provided in an Aug. 6, 1999, memo issued by Michael Pearson, INS executive associate commissioner, Office of Field Operations. In addition to providing a regulatory framework for making release determinations, the new rules differ from the Pearson memo in at least two significant ways: first, the rules eliminate review by the Board of Immigration Appeals; and second, whereas the Pearson memo provided that detainees' custody status would be reviewed every 6 months, the new rules extend the period between reviews to 12 months.

Who is subject to the new rules. The new rules apply to individuals who are ordered removed, and whose countries are unwilling to accept them, and who are:

inadmissible under INA section 212, including individuals who are excludable and have committed one or more aggravated felonies;
nonimmigrants who failed to maintain their nonimmigrant status or violated the conditions of their entry;
individuals who have committed certain crimes under INA section 237(a)(2), including persons with offenses considered crimes of moral turpitude or individuals considered security risks under INA section 237(a)(4); and
individuals who are granted withholding or deferral of removal who are subject to detention, individuals whose deferral of removal is being terminated under 8 C.F.R. section 208.17(d), and individuals who have applied for but not yet been granted motions to reopen their cases.

Detained Mariel Cubans who are awaiting exclusion or removal hearings are not subject to these rules. Determinations concerning their release are governed by procedures in 8 C.F.R. section 212.12.

The custody review process. The initial determination of whether a detainee will be kept in custody beyond the statutory 90-day removal period is made by the INS district director who has jurisdiction over the detainee. Before the removal period expires, the district director must review the detainee's records, including any written information submitted by or on behalf of the detainee. (Any such information must be submitted in English.) The district director must notify the detainee in writing whether the detainee either is to be released from custody or will remain in custody pending removal or further review of his or her custody status. The detainee must be notified 30 days in advance of the district director's review of the detainee's records so that he or she can submit any written information that may support his or her release. The detainee may be represented by a person of his or her own choosing, so long as the representative does not present a security risk. If the detainee or representative requests additional time to gather information, the detainee waives the requirement that the review occur prior to the expiration of the removal period.

The district director's evaluation of custody status may also include an in-person or telephonic interview with the detainee. After considering all relevant information, the district director may decide whether or not to release the detainee.

If the district director denies release, he or she may retain responsibility for making determinations on the detainee's continued custody for up to three months after the 90-day removal period expires. If the INS does not remove the detainee from the U.S. within the three-month period following the expiration of the 90-day removal period, the district director may release the detainee or refer the case to the Headquarters Post-Order Detention Unit (HQPDU). The INS must provide the detainee with approximately 30 days' notice of this further review, which must be conducted by the expiration of the removal period or as soon as practicable.

The HQPDU is a newly designated unit with review authority over custody decisions. The INS executive associate commissioner appoints the director of the HQPDU, and this director designates a panel or panels to make recommendations to the executive associate commissioner. A review panel consists of two persons selected from the professional staff of the INS. All recommendations by the two-member review panel must be unanimous. If the two members split their votes on any particular detainee's case, the panel must adjourn until a third member is added. This third member must be either the HQPDU director or the director's designee. The three-member review panel's recommendation must be by majority vote.

For each detainee whose case is being reviewed, the HQPDU director or a review panel must review the detainee's records. Upon completing this review, the HQPDU director or the panel may issue a written recommendation that the detainee be released, which must include the reasons for the recommendation.

If the HQPDU director does not accept a panel's recommendation to release the detainee or if the detainee is not recommended for release, a review panel must personally interview the detainee. At this interview, the detainee may be represented or assisted by a person of his or her choosing. Upon completing the interview and its deliberations, the review panel must issue a written recommendation on whether to release the detainee or to keep him or her in custody, and must include a brief statement of factors deemed material to the recommendation. The executive associate commissioner is to then consider the recommendation, along with any written information, and then decide whether or not to release the detainee.

If the end result of this process is a decision not to release the detainee, a subsequent review must commence within one year of the executive associate commissioner's decision. Every three months, the detainee may submit a written request to the HQPDU asking to be released. In making the request, the detainee must try to show that there has been a material change in his or her circumstances since the previous annual review.

Factors for consideration of release. Persons detained indefinitely because their countries of origin will not accept them back have the burden of showing that their release will not pose a danger to the community or to the safety of other persons or property or a significant risk that they will flee before they can be removed from the U.S.

In considering whether to release a detainee, the INS district director or executive associate commissioner must consider the following factors:

The nature and number of disciplinary infractions the detainee has committed or incident reports the detainee received when incarcerated or while in the custody of the INS.
The detainee's criminal conduct and criminal convictions, including the nature and severity of the detainee's convictions, sentences imposed and time actually served, probation and criminal parole history, evidence of recidivism and other criminal history.
Any available psychiatric and psychological reports pertaining to the detainee's mental health.
Evidence of rehabilitation, including institutional progress relating to participation in work, educational, and vocational programs.
Favorable factors, including ties to the U.S. (e.g., whether the detainee has close relatives who legally reside in the U.S.).
"Prior immigration violations and history."
The likelihood that the detainee is a significant flight risk or may abscond to avoid removal from the U.S., including any history of escapes, failures to appear for immigration or other proceedings, absence without leave from any halfway house or sponsorship program, etc.
Any other information that is probative of whether the detainee is likely to (a) adjust to life in a community, (b) engage in future acts of violence, (c) engage in future criminal activity, (d) pose a danger to the safety of him or herself or to other persons or property, or (e) violate the conditions of his or her release from immigration custody pending removal from the U.S.

Criteria for release. Before making any recommendation or decision to release a detainee, a majority of the review panel members, or, in the case of a record review, the director of the HQPDU, must conclude that:

travel documents for the detainee are not available or, in the opinion of the INS, immediate removal, while proper, is otherwise not practicable or not in the public interest;
the detainee is presently a nonviolent person;
the detainee is likely to remain nonviolent if released;
the detainee is not likely to pose a threat to the community following release;
the detainee is not likely to violate the conditions of release; and
the detainee does not pose a significant flight risk if released.

At any point during the process, if the INS establishes that travel documents can be obtained for the detainee, the detainee will not be released unless immediate removal is not practicable or in the public interest. Moreover, the INS will not conduct a custody review once the agency notifies the detainee that it is ready to execute an order of removal. Finally, release will be denied if the detainee fails or refuses to cooperate in the process of obtaining a travel document.

Conditions of release. The INS district director or executive associate commissioner may impose conditions on a detainee's release from custody. One condition they may impose is that the detainee must reside with a close relative, such as a parent, spouse, child, or sibling, who is a U.S. citizen or lawful permanent resident and who agrees to sponsor the detainee. Or the detainee's release may be conditioned on the detainee's placement or participation in an approved halfway house or other community mental health project. If either of these conditions are imposed, the detainee may not be released until sponsorship, housing, or other placement has been found.

The INS may also issue work authorization to the detainee, at the agency's discretion.

Transitional individuals. Detainees whose last review was subject to the executive associate commissioner's memoranda of either Feb. 3, 1999, Apr. 30, 1999, Aug. 6, 1999, or Dec. 22, 1999, and whose written records have already been reviewed must receive a further review from the HQPDU within six months of the previous review. If the detainee's last review included an interview, the HQPDU will conduct a further review one year from the last review. These reviews will be conducted pursuant to the HQPDU procedures outlined above.

Cases involving the indefinite detention of immigrants with final removal orders that are pending before the Board of Immigration Appeals on Dec. 21, 2000, must be completed by the BIA. In cases where the BIA affirms the INS district director's decision to maintain the detainee in custody, the next custody review must be conducted one year after the BIA's decision.

Revocation. Any formerly detained individual who has been released under an order of supervision or any other condition of release who violates the condition may be returned to custody as well as be subjected to a $1000 fine or imprisonment. The individual must be notified of why his or her release has been revoked. Such individuals must be afforded an initial informal interview promptly after their return to INS custody so that they may respond to the reasons for revocation stated in the notification.

The INS has the authority to revoke the release of any person who has a final order of removal and return the person to its custody. Any release may be revoked in the exercise of discretion when the revoking officials deem that:

the purposes of release have been served;
the released individual has violated any condition of release;
revoking the release is appropriate to enforce a removal order; or
the conduct of the individual, or any other circumstance, indicates that release is no longer appropriate.

65 Fed. Reg. 80,281-98 (Dec. 21, 2000).