JUSTICE DEPARTMENT IMPLEMENTS
ZADVYDAS V. DAVIS SUPREME COURT DECISION

WASHINGTON, D.C. – The Department of Justice today announced that it will publish, pursuant to the recent Supreme Court decision in Zadvydas v. Davis, an interim rule in the Federal Register to amend the U.S. Immigration and Naturalization Service's (INS') procedures governing the review process of aliens who are subject to a final order of removal, deportation, or exclusion.

The United States Supreme Court ruled that the U.S. government may detain aliens only as long as there is a significant likelihood of removal in the reasonably foreseeable future.

The new rule was created to accomodate criteria set forth in the Zadvydas ruling. The interim rule, which is effective today and is subject to a 60-day public comment period, adds new provisions to INS' procedures for determining: (1) whether aliens with final orders of removal are likely to be removed within a reasonable amount of time; and (2) whether they should remain in INS custody or be released into the United States pending their removal.

The rule also allows the INS to continue detention of aliens who are not reasonably likely to be removed in the reasonably foreseeable future under special circumstances, consistent with the Supreme Court ruling.

The special circumstances identified in the regulations involve 1) aliens who have highly contagious diseases that pose a danger to the public; 2) aliens who pose foreign policy concerns; 3) aliens who pose national security and terrorism concerns; and 4) individuals who are specially dangerous due to a mental condition or personality disorder.

If the INS determines under the new procedures that there is no significant likelihood of an alien's removal in the reasonably foreseeable future, and the case does not involve special circumstances, then the INS will be required to release the alien under appropriate conditions of supervision intended to protect the public safety and to ensure the continued ability to remove the alien should that become possible in the future.

The rule also adds a new procedural provision to implement the statutory directive for extension or suspension of the removal period if an individual does not make timely application in good faith for travel or other documents necessary to his or her departure or tries to prevent his or her removal.

This rule directs INS to provide a specific notice to the alien, during the statutory removal period, if the alien has acted in a manner to invoke the statutory extension of that period. The removal period will continue to be extended until the alien complies with the statutory requirements.

The new procedures regarding likelihood of removal apply to the following:

• Aliens who have been admitted to the United States (including aliens admitted as refugees under section 207 of the Act), and who are later ordered removed.
• Other deportable aliens who are determined to be a danger to the community or flight risk.
• Inadmissible aliens who are present in the United States without inspection, admission or parole.

Mariel Cubans and aliens ordered removed under an order of exclusion do not fall within the class of aliens covered by the Zadvydas decision. Those cases are governed by separate portions of the Immigration and Nationality Act.

The Department of Justice may also seek to invoke its statutory authority to require the Secretary of State to discontinue granting visas to citizens, subjects, nationals and residents of countries that fail to accept the return of its nationals who had been ordered removed from the United States. The Attorney General invoked this authority for Guyana on September 7, 2001.

The rule in its entirety can be viewed online at www.access.gpo.gov.

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