[Federal Register Volume 66, Number 142 (Tuesday, July 24, 2001)]
[Notices]
[Pages 38433-38434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18549]
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DEPARTMENT OF JUSTICE
Notice of Memorandum
AGENCY: Department of Justice.
ACTION: Notice.
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SUMMARY: This Notice consist of a Memorandum from the Attorney General
to the Acting Commissioner of the Immigration and Naturalization
Service (INS) concerning detention of certain aliens held under final
orders of removal. The Memorandum directs the INS to take a number of
actions in response to the decision of the U.S. Supreme Court In
Zadvydas v. Davis, 533 U.S. __, 121 S.Ct. 2491 (June 28, 2001). It
directs the INS to present the Attorney General with regulations by
July 31, 2001 that set forth a precedence for such aliens to present a
claim that they should be released from detention because there is no
significant likelihood that they will be removed in the reasonably
foreseeable future. The regulations are also to address continued
detention for aliens presenting special circumstances of the sort
identified by the Court in Zadvydas, such as terrorists or other
especially dangerous individuals. Until those regulations are
published, the Memorandum directs the INS to: (1) Immediately renew
efforts to remove aliens in post-order detention, placing special
emphasis on aliens who have been detained the longest; (2)
expeditiously conclude its ongoing file review for all aliens who have
remained in post-order detention for 90 days or more, with priority
given to those cases in which the aliens have been detained longest; as
part of that review, the INS shall immediately begin accepting
requests, submitted in writing, by detained aliens who contend that
there is no significant likelihood of their removal in the reasonably
foreseeable future; (3) respond in writing, as expeditiously as
possible, to any such written submission, prioritizing the cases of
aliens who have been detained longest; and (4) make sure that no alien
who has previously been determined under existing procedures in 8 CFR
241.4 to pose a danger to the community will be released until his or
her case has been processed through the INS review and the INS has made
a determination, based on available information, that there is no
significant likelihood of the alien's removal in the reasonably
foreseeable future. The Memorandum also directs the INS to collect
certain relevant data, to confer with the Department of State
concerning improving repatriation procedures, and to refer for
prosecution cases involving violations of 8 U.S.C. 1253.
FOR FURTHER INFORMATION CONTACT: Stuart Levey, Associate Deputy
Attorney General, U.S. Department of Justice, Room 4615, 950
Pennsylvania Ave., NW., Washington, DC 20530, (202) 514-2000.
Stuart Levey,
Associate Deputy Attorney General.
Office of the Attorney General
Washington, DC 20530
July 19, 2001
Memorandum
To: Acting Commissioner, Immigration and Naturalization Service
From: John Ashcroft, the Attorney General
Subject: Post-Order custody review after Zadvydas v. Davis
The Supreme Court held in Zadvydas v. Davis, 533 U.S. __, 121 S.
Ct. 2491 (June 28, 2001), that Sec. 241(a)(6) of the Immigration and
Nationality Act (INA), read in light of due process protections for
aliens who have been admitted into the United States, generally
permits the detention of such an alien under a final order of
removal only for a period reasonably necessary to bring about that
alien's removal from the United States. The Supreme Court held that
detention of such an alien beyond the statutory removal period, for
up to six months after the removal order becomes final, is
``presumptively reasonable.'' After six months, if an alien can
provide ``good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future,'' the
government must rebut the alien's showing in order to continue the
alien in detention. Finally, the Supreme Court indicated that there
may be cases involving ``special circumstances,'' such as terrorists
or other especially dangerous individuals, in which continued
detention may be appropriate even if removal is unlikely in the
reasonably foreseeable future.
The Supreme's Court's ruling will inevitably result in anomalies
in which individuals who have committed violent crimes will be
released from detention simply because their country of origin
refuses to live up to its obligations under international law.
Nevertheless, the Department of Justice and the Immigration and
Naturalization Service (INS) are obligated to abide by the Supreme
Court's ruling and to apply it to the thousands of aliens who are
currently in detention after receiving final orders of removal.
Because we are thus faced with the possible imminent release of many
aliens who have previously been determined to pose a risk to the
community, I am issuing this memorandum to give direction to the INS
in handling the situation presented by the Supreme Court's ruling
and to ensure that we take all responsible steps to protect the
public.
The existing post-order detention standards, at 8 CFR
Sec. 241.4, provide for an ongoing administrative review of the
detention of each alien subject to a final order of removal,
allowing for the continued detention of aliens unless the INS
determines, among other factors, that their release would not pose a
danger to the community or a risk of flight. The Supreme Court's
decision did not question the INS's authority to detain an alien,
under the existing post-order detention standards, as long as
reasonable efforts to remove the alien are still underway and it is
reasonably foreseeable that the alien will be removed. In
particular, the decision does not require that an alien under a
final order of removal automatically be released after six months if
he or she has not yet been removed. Instead, the Supreme Court held
that ``an alien may be held in confinement until it has been
determined that there is no significant likelihood of removal in the
reasonably foreseeable future.''
The Supreme Court's decision will require the INS, in
consultation with the Department of State, to assess the likelihood
of the removal of thousands of aliens to many different countries.
The Supreme Court emphasized in its decision the need to ``take
appropriate account of the greater immigration-related expertise of
the Executive Branch, of the serious administrative needs and
concerns inherent in the necessarily extensive INS efforts to
enforce this complex statute, and the Nation's need `to speak with
one voice;' in immigration matters.'' The Court also stressed the
need for the courts to give expert Executive Branch ``decsionmaking
leeway,'' to give deference to ``Executive Branch primacy in foreign
policy matters,'' and to establish uniform administration of the
immigration laws.
The Supreme Court also made it clear that its ruling does not
apply to those aliens who are legally still at our borders or who
have been paroled into the country (such as the Mariel Cubans). The
Supreme Court has held that such aliens do not have due process
rights to enter or to be released into the United States, and
continued detention may be appropriate to accomplish the statutory
purpose of preventing the entry of a person who has, in the
contemplation of the law, been stopped at the border.
In accordance with the Supreme Court's admonitions, and pursuant
to my authority to interpret and administer the INA, see 8 U.S.C.
Sec. 1103(a), I have concluded that it is necessary to establish a
mechanism by which the responsible Executive Branch officials will
exercise their expert judgment to assess
[[Page 38434]]
the likelihood of the return of aliens, and will do so in a fair,
consistent, and orderly manner in a nationwide detention program
that involves thousands of aliens from virtually every country in
the world.
I. Accordingly, in order to carry out my responsibilities under
the Supreme Court's decision, I am directing the INS to draft and
present to me regulations on or before July 31, 2001, that set forth
a procedure for aliens subject to a final order of removal (other
than aliens who have not entered the United States or who have been
granted immigration parole into the United States) to present a
claim that they should be released from detention because there is
no significant likelihood that they will be removed in the
reasonably foreseeable future. Where the alien has presented and
substantiated such a claim, the INS will then make a determination,
in light of available information and circumstances, whether there
is no significant likelihood of removing that alien in the
reasonably foreseeable future. Until the INS makes that
determination, or if it determines there is still a significant
likelihood of removal, the INS will continue its efforts to remove
the alien, and the alien's detention will continue to be governed
under the existing post-order detention standards. However, if the
alien has already been detained for more than six months since the
removal order became final, and the INS determines that there is no
significant likelihood of removal in the reasonably foreseeable
future, the INS will either (1) release the alien, subject to
appropriate conditions to protect the public safety and to deter the
alien's flight; or (2) determine whether there are special
circumstances justifying continued detention in a specific case even
if there is no significant likelihood of removal in the reasonably
foreseeable future.
With respect to determinations as to the likelihood of removal,
those regulations should: (a) Require the alien to demonstrate his
or her ongoing efforts to comply with the removal order and to
cooperate in the removal effort (a statutory obligation under INA
Sec. 243(a)); (b) provide for the decisionmaking official to
consider the Service's historical record in achieving the removal of
aliens to the country or countries at issue; (c) provide an
opportunity to solicit input from the Department of State regarding
the prospects for removal of the alien; and (d) afford the alien an
opportunity to show that because of the particular circumstances of
his or her case, removal is, to a material extent, less likely than
for others being removed to the same country or countries and
therefore that there is no significant likelihood of removal in the
reasonably foreseeable future. The regulations should also make
clear that, as under current regulations, aliens who violate the
conditions of their release may be taken back into custody and are
subject to criminal prosecution.
I am also directing the INS to develop regulations to address
the situations that present special circumstances of the sort
identified by the Supreme Court in Zadvydas, such as terrorists or
other especially dangerous individuals. Those regulations should:
(a) Adequately define the categories of aliens who are eligible for
detention even if there is not a significant likelihood of removal
in the reasonably foreseeable future, and (b) provide
constitutionally sufficient procedural protections to those aliens.
The INS should develop those standards in consultation with the
Civil and Civil Rights Divisions, the Executive Office for
Immigration Review, and other federal agencies with relevant
expertise.
II. Until the regulations described in Part I above are
published, in order to implement a system of detention in compliance
with the Zadvydas decision while still providing the maximum
allowable protection to the American public, I further direct the
INS to implement the following interim procedures with respect to
aliens subject to a final order of removal (other than aliens who
have not entered the United States or who have been paroled into the
United States). Because of those concerns, any public procedure
delaying the immediate effectiveness of these interim procedures
would be contrary to the public interest.
1. The INS shall immediately renew efforts to remove all aliens
in post-order detention, placing special emphasis on aliens who have
been detained the longest.
2. The INS shall expeditiously conclude its ongoing file review
for all aliens who have remained in post-order detention for 90 days
or more, with priority given to those cases in which the aliens have
been detained longest. As part of that review, the INS shall
immediately begin accepting requests, submitted in writing, by
detained aliens who contend that there is no significant likelihood
of their removal in the reasonably foreseeable future. Those
requests shall be submitted and considered part of the existing
custody review procedures established by 8 CFR Sec. 241.4. Aliens
shall be given the opportunity to submit any information that they
believe supports this contention. Until further procedures are
specified, the INS shall treat any alien's petition for a writ of
habeas corpus challenging his post-order detention as such a request
for release under existing review procedures, and the request shall
be considered by the INS accordingly.
3. The INS shall respond in writing, as expeditiously as
possible, to any such written submission, prioritizing the cases of
aliens who have been detained the longest. In all cases, the INS
shall respond in 30 days or less. The INS's failure to respond in 30
days will not, however, automatically entitle the alien to release.
4. No alien who has previously been determined under existing
procedures in 8 CFR Sec. 241.4 to pose a danger to the community
will be released until his or her case has been processed through
the INS review and the INS has made a determination, based on
available information, that there is no significant likelihood of
the alien's removal in the reasonably foreseeable future. If the INS
decides that the alien has demonstrated that there is no significant
likelihood of removal in the reasonably foreseeable future but that
continued detention is justified on the basis of special
circumstances, it shall include a basic description of those special
circumstances in its written response. Any alien who is released
shall be subjected to appropriate orders of supervision that protect
the community and enhance the ability to repatriate the alien in the
future. As provided under the current regulations and recognized by
the Supreme Court in Zadvydas, those orders of supervision shall
specify that the alien may be re-detained if he or she violates the
conditions of release.
III. In order to implement the custody review system I have
described, the INS also is directed to:
1. Collect data on its experience removing aliens to each
country in the world. Those data should include, to the extent
possible, the number of aliens removed to each country, the number
of aliens from each country that the INS has not successfully
removed, the length of time needed to achieve removal to each
country, and, if known, the reasons why the removal of some classes
of aliens may have taken longer to accomplish than for other aliens
from that country, or could not be accomplished.
2. Confer with the Department of State about problems removing
aliens to particular countries and seek the assistance of the
Department of State as appropriate, including in assessing the
likelihood of repatriation of aliens to particular countries.
3. Refer for prosecution appropriate cases: (a) Under INA
Sec. 243(a) involving aliens who refuse to make timely application
for travel documents or who obstruct their removal; and (b) under
INA Sec. 243(b) involving aliens who violate their orders of
supervision.
The INS is also directed to publish this memorandum in the
Federal Register. The public notice shall provide an address for the
submission of requests from aliens, as provided in Part II of this
memorandum, contending that they should be released from custody
because there is no significant likelihood that they will be removed
in the reasonably foreseeable future.
[FR Doc. 01-18549 Filed 7-20-01; 3:06 pm]
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