INS Issues Interim Rule on Detention under Final Removal Orders

IMMIGRATION LAW & POLICY

Arrest and Detention

INS ISSUES INTERIM RULE ON DETENTION UNDER FINAL REMOVAL ORDERS
Immigrants' Rights Update, Vol. 15, No. 8, Dec. 20, 2001

In light of the U.S. Supreme Court's finding that the Immigration and Naturalization Service may not indefinitely detain individuals who are ordered removed but cannot be repatriated, the U.S. Dept. of Justice published an interim regulation governing the custody review process following the removal period. The interim rule took effect on Nov. 14, 2001. Comments on the interim rule are due on or before Jan. 14, 2002.

After an individual is ordered removed, the INS has 90 days to remove him or her. However, repatriation is difficult to accomplish for some individuals, such as those without nationalities or persons born in countries that do not have repatriation treaties with the U.S. (such as Cuba or Vietnam). Prior to the Supreme Court's ruling in Zadvydas v. Davis, 121 S.Ct. 2491 (2001), the INS had been holding such persons under the "post-removal detention statute," sometimes indefinitely. In Zadvydas, the Court ruled that such persons may be detained only for "periods reasonably necessary to bring about [their] removal from the U.S."

The interim rule creates two new sections, 8 C.F.R. sections 241.13 and 241.14, and amends several other sections. Section 241.13 establishes special review procedures allowing the release of detained individuals who are subject to final orders of removal but for whom no "significant likelihood" of removal "in the reasonably foreseeable future" exists. Section 241.14 provides a procedure for the INS to use for individuals the agency determines are especially dangerous.

The new rule amends section 241.4, which allows for the continued detention of individuals beyond the 90-day removal period. Section 241.4(g) also includes a new subsection stating that the removal period for an individual subject to a final order begins on the latest of the following dates:

the date the order becomes administratively final;
the date on which the removal can be executed and the individual may be removed, if the removal order is subject to judicial review and the court has ordered a stay of the individual's removal; or
the date the individual is released from detention, if the individual was detained for reasons unconnected to removability.

The interim rule also amends section 241.4(g) to extend the removal period if an individual fails to apply for travel or other necessary departure documents in a timely way or in any way acts to prevent his or her removal. In such situations, the INS must provide the individual with a Notice of Failure to Comply before the expiration of the removal period. The rule adds that the INS's failure to provide the notice does not excuse the individual's conduct and will not keep the removal period from being extended. Once the individual has complied with the requirements, the INS has a reasonable period of time to act on the individual's removal.

During the custody review process, if the individual submits or the record contains information providing a substantial reason to believe that his or her removal is not significantly likely in the reasonably foreseeable future, the Headquarters Post-order Detention Unit (HQPDU) must initiate the review procedures under new section 241.13. The HQPDU is a unit designated to have review authority over custody decisions. The HQPDU may consider any information developed during the custody review process.

Individuals Covered by the Rule. Lawful permanent residents who have been admitted to the U.S., including refugees admitted under Immigration and Nationality Act section 207, are covered. Also covered by the rule are other deportable immigrants who present a danger or flight risk, and inadmissible immigrants who are present in the U.S. without inspection. The interim rule does not apply to arriving aliens, Mariel Cubans, and other parolees. (Mariel Cubans are covered under 8 C.F.R. section 212.12.) In addition, the interim rule does not apply to individuals under a final order of removal who are still within the statutory removal period or individuals ordered removed by the Alien Terrorist Removal Court.

Procedure for Release. At any time after the removal order becomes final, an individual may submit a written request for release to the HQPDU asserting that there is no significant likelihood that he or she will be removed to the country of removal or to a third country in the reasonably foreseeable future. The individual may add supporting documents to the request, including information demonstrating his or her attempts to secure travel documents. The HQPDU must respond to the individual, and send a copy of the response to counsel of record, within ten business day of receiving the request.

The interim rule provides that the HQPDU must first determine if the individual has made reasonable efforts to comply with the removal order or has obstructed the removal process in any way. If the latter is the case, the HQPDU must so advise the individual in writing and provide a copy to his or her counsel. The HQPDU must inform the individual of the efforts he or she needs to make in order to assist in securing travel documents and of the consequences of failure to cooperate. The INS is not obligated to consider the request further until the individual responds to the HQPDU and establishes his or her compliance with statutory requirements.

Next, the HQPDU is to forward a copy of the individual's release request to the Dept. of State for information and assistance. The State Dept. may provide information about country conditions or other facts relevant to whether a travel document may be obtained from the country at issue. The State Dept. may also assess the accuracy of the individual's contention that he or she cannot be returned to a particular country. When the INS relies on the information provided by the State Dept., that information becomes part of the record. The INS must allow the individual to respond to the INS's evidence. The HQPDU may also interview the individual, telephonically or in person, and if necessary will provide an interpreter.

The HQPDU must consider all of the facts of the case, including (but not limited to)

the history of the INS's efforts to remove individuals to the country in question or to third countries (including the INS's efforts to remove the individual);
the individual's assistance with those efforts;
the reasonably foreseeable results of those efforts;
the views of the State Dept. regarding the prospects for removal of individuals to the country or countries in question; and
the receiving country's willingness to accept the individual.

The rule provides that where the INS is continuing its efforts to remove the individual, there is no period of time, presumptive or otherwise, within which the individuals' removal must be accomplished. However, the prospects for the timeliness of removal must be reasonable under the circumstances.

The HQPDU must issue a written decision based on the administrative record, including any documentation provided by the individual regarding the likelihood of removal, and must provide the decision to the individual and his or her counsel.

If the HQPDU determines that there is no significant likelihood that the individual will be removed in the reasonably foreseeable future, the HQPDU must inform the individual. Unless there are special circumstances justifying continued detention, the INS must make, subject to appropriate conditions, prompt arrangements for the individual's release. Before establishing conditions for release or referring the individual for further proceedings, the INS may require a medical or psychiatric team to examine the individual. If the individual refuses to submit to such an examination, the INS is not obligated to release him or her.

Conversely, if the HQPDU determines at the conclusion of the review that there is significant likelihood that the individual will be removed in the reasonably foreseeable future, the HQPDU must deny the individual's request for release. There are no administrative means to appeal the HQPDU decision denying a request from the individual.

Conditions of Release. According to the interim rule, the INS may impose certain conditions on the individual whom it releases. Those conditions are enumerated in INA section 241(a)(3) and 8 C.F.R. section 241.5 and include such requirements as periodic appearances before the INS and other "reasonable" restrictions. Released individuals may be granted work authorization. A released individual who violates any of the conditions of release may be returned to custody and is subject to penalties under INA section 243(b). The HQPDU may refer certain cases to the U.S. attorney for criminal prosecution. In addition, the individual may be detained for an additional six months.

The interim rule also provides that the INS may revoke an individual's release and return the individual to custody if, due to changed circumstances, the agency determines that there is a significant likelihood the individual may be removed in the reasonably foreseeable future. If the individual is not released from custody following an informal interview, the provisions of 8 C.F.R. section 241.4 govern the individual's continued detention pending removal.

If the INS revokes the individual's release, it must notify the individual of the reasons for revocation and promptly interview the individual. The INS must also give the individual the chance to respond to the reasons for revocation. The individual may submit any evidence or information that he or she believes demonstrates no significant likelihood exists of his or her removal in the reasonably foreseeable future. The individual may also submit evidence showing that he or she did not violate the order of supervision. The revocation custody review must include an evaluation of any contested facts relevant to the revocation and a finding of whether the facts as determined warrant revocation and further denial of release.

If the INS denies an individual's request for release, the individual may submit a request for review of the detention six months after the last denial. The HQPDU must consider additional evidence provided by the individual or available to the INS as well as evidence submitted in the prior proceedings. However, the HQPDU must render an entirely new decision on the likelihood of the individual's removal in the reasonably foreseeable future.

The interim rule also adds a new section providing for the continued detention of removable individuals in special circumstances, notwithstanding the fact that no significant likelihood exists of their being removed in the reasonably foreseeable future. Such circumstances are described below.

Individuals with Highly Contagious Diseases. If after a medical examination the INS determines that an individual has a highly contagious disease that presents a threat to public safety, it may initiate efforts with public health, state, or local government officials to arrange for the individual's continued medical care or treatment. In such cases, the INS may not continue detention except upon the express recommendation of the relevant public health authority. The INS must make reasonable attempts to provide every available form of treatment while the individual remains in INS custody.

If the INS, in consultation with the public health service and the individual, identifies an appropriate medical facility that will provide treatment, then the individual may be released if he or she agrees to continue that treatment until no threat to public safety is posed on account of the disease.

Individuals Detained Due to Serious Adverse Foreign Policy Consequences of Release. The INS must continue to detain individuals when the attorney general or deputy attorney general certify in writing that

regardless of the grounds upon which the individual has been found inadmissible or removable, the individual is a person whose release the secretary of State has reason to believe would have potentially serious foreign policy consequences for the U.S.; and
no conditions of release can reasonably be expected to avoid such consequences.

The attorney general or deputy attorney general's certification that an individual should not be released due to adverse foreign policy considerations should be made only after the INS consults with and receives a recommendation from the secretary of State. Although the certification may continue to be reviewed on a semi-annual basis, it is not subject to further administrative review.

Individuals Detained Due to Security or Terrorism Concerns. The INS must continue to detain a removable individual if written determinations have been made finding

the individual is regarded as a terrorist under INA section 212(a)(3)(A) or (B) or the individual has or is likely to engage in activity that endangers national security;
the individual's release presents a significant threat to national security or a significant risk of terrorism; and
no conditions of release can reasonably be expected to avoid the threat to national security or the risk of terrorism.

The INS must notify the individual of its intent to maintain him or her in detention and of his or her right to submit a written statement and additional information for consideration by the INS commissioner. The INS must continue to detain the individual pending the attorney general's decision. Without compromising national security and classified information, the INS must also provide a description of the factual basis for the individual's continued detention. The individual must also be provided with a reasonable opportunity to examine evidence against him or her and to present information on his or her own behalf.

If the individual's final order of removal was based on inadmissibility grounds other than terrorist grounds, the INS must, if possible, interview the individual in person and take a sworn question and answer statement from him or her. If necessary, the INS must provide an interpreter. The individual may be represented at no expense to the government.

In recommending to the attorney general that custody must be maintained due to security or terrorism concerns, the commissioner must consider all relevant information, including but not limited to

recommendations of INS officials, including the director of the HQPDU, the Federal Bureau of Investigation, and other federal law enforcement or national security agencies;
any statements and information submitted by the individual;
the extent to which the individual's previous conduct indicates a likelihood that his or her release would present a significant threat to national security or of terrorism; and
other special circumstances indicating that release from detention would present a significant threat of terrorism or to national security.

The commissioner must send the recommendation to the attorney general in writing. If the continued detention is based on a significant risk of terrorism, the recommendation must state in as much detail as practicable the factual basis for the determination. Based on the INS's record and the commissioner's and FBI's recommendations, the attorney general may certify that an individual should continue to be detained on account of security or terrorism grounds. The detention decision is subject to ongoing review on a semi-annual basis but is not subject to further administrative review.

Individuals determined to be especially dangerous. The INS must continue to detain an individual if his or her release would pose a special danger to the public because

the individual has previously committed one or more crimes of violence as defined in 18 U.S.C. 16;
the individual is likely to engage in acts of violence in the future, due to a mental condition or personality disorder and behaviors associated with those conditions; and
no conditions of release can reasonably be expected to ensure the safety of the public.

An individual deemed especially dangerous may contest the determination at a hearing before an immigration judge. Assignment of jurisdiction for a hearing begins with the issuance of a notice of referral to an immigration judge (Form I-863). The INS must provide such individuals with a written notice that it is initiating proceedings and advise them of their rights in the hearing. Individuals must be provided with a list of free legal service providers, an interpreter if necessary, and the chance to examine witnesses and present evidence on their own behalf. They must also be given the chance to cross examine witnesses presented by the INS, including the author of any medical or mental health report.

The IJ must first hold a preliminary, or "reasonable cause," hearing to determine whether the evidence supporting the INS's determination is sufficient to proceed with a merits hearing. The INS bears the burden of establishing, by a show of material evidence, that reasonable cause exists. The reasonable cause hearing must commence no later than ten business days after the filing of the I-863. The individual is not required to offer any evidence on his or her behalf.

The IJ must render a summary decision within five days after the closing of the record unless an extension is mutually agreed upon, the chief IJ determines that exceptional circumstances make it impractical to render the decision, or the individual requests additional time. If the IJ determines that the INS has not met its burden, the proceedings must be ordered dismissed. If such an order is issued, the INS may, within two business days of the IJ's order, file an appeal with the Board of Immigration Appeals. Should the INS reserve its right to appeal, the IJ's order is stayed until the expiration of the time limit for filing an appeal. On the filing of an appeal, the IJ's order remains in abeyance until a final decision is reached. Should the IJ determine that the INS met its burden, the individual and the agency must be so advised, and a merits hearing to review the INS's determination must be scheduled.

Once the INS files an appeal of the IJ's decision, the BIA must rule on it by single Board member review, based on the record of proceedings before the IJ. BIA review must be expedited, as far as practicable, and given the highest priority among the appeals concerning detained individuals. A ruling on the appeal must be made within 20 business days of the filing of the notice. This deadline may be extended by agreement of both parties or by a determination from the chairman of the BIA that exceptional circumstances make it impractical to render the decision on a highly expedited basis. The deadline may also be extended because of delay caused by the individual. If the BIA determines that the INS has met its burden, the BIA must remand the case to the IJ for a merits hearing. If the BIA determines that the INS has not met its burden, the review proceedings will be dismissed.

The Merits Hearing. Once reasonable cause to conduct a merits hearing has been established, the IJ must promptly schedule it and expedite the proceedings as far as practicable. The INS will have the burden of proving by clear and convincing evidence that the individual should remain in custody because the individual's release would pose a special danger to the public. The individual may, but is not required to, offer evidence on his or her own behalf.

In making any determination in a merits hearing, the IJ must consider the following nonexclusive list of factors:

the individual's prior criminal history, particularly the nature and seriousness of any prior crimes involving violence or threats of violence;
the individual's previous history of recidivism, if any, upon release from INS or criminal custody;
the substantiality of the INS's evidence regarding the individual's current mental condition or personality disorder;
the likelihood that the individual will engage in acts of violence in the future; and
the nature and seriousness of the danger to the public posed by the individual's release.

After closing the record, the IJ will render a decision as soon as practicable. If the IJ determines that the INS has met its burden, an order providing for continued detention of the individual will be entered. Conversely, should the IJ determine that the INS did not meet its burden, the IJ will order the review proceedings dismissed. Either party may appeal an adverse decision to the BIA. Once the IJ orders proceedings dismissed, the INS will have only five business days to file a notice of appeal with the BIA.

As with the procedure in the reasonable cause hearing, if the INS reserves its right to appeal a dismissal, the IJ's orders are stayed until the expiration of the time to appeal. When the INS files a notice of appeal, the IJ's order remains in abeyance pending a final decision on the appeal. The stay will expire if the INS fails to file a timely notice of appeal. The BIA must conduct an expedited review and the decision reached by such a review is final.

After a final administrative decision by the IJ or the BIA dismissing the review proceedings, the INS must promptly release the individual under conditions of supervision. However, the conditions of supervision will not be subject to review by the IJ or the BIA.

If the IJ or the BIA ordered continued detention for the individual, the INS must ensure that ongoing periodic review of his or her continued detention takes place. The individual may also request a review of his or her custody based on changed circumstances. Such a request must be made in writing and directed to the HQPDU. A request for custody review may be made no earlier than six months after the last decision of the IJ or the BIA.

Material Change in Circumstances. The individual bears the initial burden of establishing that a material change in circumstances shows that his or her release would no longer pose a special danger to the public. Should the INS determine that the individual is not likely to commit future acts of violence or that the agency will be able to impose conditions of release adequate to ensure the public's safety, the INS must release the individual from custody. If the INS determines that continued detention is needed in order to protect the public, the agency must provide a written notice to the individual stating the basis for its determination, including a copy of the evidence it relied upon.

Should the individual's release request be denied, the individual may file a motion with the immigration court that had jurisdiction over the merits hearing to set aside the determination reached in the prior review proceedings (i.e., the initial merits hearing, or the BIA's review of that hearing's finding). The IJ must consider any evidence submitted by the individual or relied upon by the INS and provide the agency an opportunity to respond to the motion.

If the IJ determines that the individual has provided good reason to believe that, due to a material change in circumstances, the individual no longer poses a special danger to the public, the IJ must set aside the determination reached in the proceeding that last considered the question and schedule a new merits hearing. The IJ must deny the motion if the individual fails to meet his or her burden.

66 Fed. Reg. 56,967-82 (Nov. 14, 2001).