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June 29, 2000

INS Publishes Proposed Rule for Post-Order Detention

Procedures Create Centralized Review Process for Aliens Detained More Than 90 Days

WASHINGTON — The Immigration and Naturalization Service (INS) today announced the publication of a proposed rule that will create a permanent system to ensure fair, independent and consistent review of cases involving "post-order detainees"—criminal and other aliens who remain in detention in the United States after INS has obtained a final order to remove them.

The proposed rule is intended to balance the need to protect the American public from potentially dangerous criminal aliens, who remain here contrary to law, with the humanitarian problems created by another country’s delay or refusal to accept repatriation of its nationals, resulting in possible detention past the statutory 90-day removal period required by law. Under federal law, INS must detain aliens during their removal proceedings who have been convicted of certain crimes. In addition, it must detain any criminal alien with a removal order for a period of 90 days, known as the removal period.

The proposed rule creates a centralized review process at INS headquarters that will assume authority over custody decisions for post-order detainees whose cases are referred to headquarters by the District Director. This referral occurs either at the expiration of the 90-day removal period or three months after that date if the alien has not been released or repatriated in the interim. The rule follows interim procedures the INS adopted last August. 

"This new process builds on the successful procedures we have developed over the past year at INS to ensure fair and consistent reviews," Commissioner Meissner said. "The agency is committed to fairness, consistency and timeliness. The new procedures meet these commitments while keeping community safety a top priority. In addition, they will provide individuals in post-order custody and their families key information on when their cases will be reviewed, as well as the procedures for those reviews."

 Once District Directors refer cases to headquarters, a new unit, known as the Headquarters Post-Order Detention Unit (HQPDU) will make all future custody determinations. An initial custody review, which occurs upon referral of the District Director, and all subsequent annual reviews will include an interview by a two-person panel selected from professional INS staff. At specified three-month intervals between the annual reviews, detainees may submit information demonstrating a material change in circumstances in support of their release.

These procedures apply to aliens in INS custody under an order of removal, deportation or exclusion whose removal cannot be effected within the 90-day statutory removal period. Mariel Cubans continue to be governed by separate regulation.

 The rule will be effective upon publication in the Federal Register on June 30. The public has 30 days to comment on the proposed rule after publication. 

Under the proposed rule (at a glance): 

INS District Directors will continue to make a review of each detainee’s case file prior to the expiration of the 90-day removal period. A decision to detain will clearly delineate the factors presented by the alien in support of his or her release, and the reasons for the District Director’s decision.

If aliens are not repatriated or released after the 90-day review, District Directors may refer the case to headquarters for further review or they may retain the case for an additional three months pending removal.

If the District Director has retained jurisdiction over the case for the additional three months after the expiration of the removal period, but the alien has not been repatriated or released during that time, detention authority shifts to INS headquarters where a newly created Headquarters Post-Order Detention Unit (HQPDU) will schedule the alien for an initial custody review including an interview. Henceforth, HQPDU will make all future custody determinations on an annual basis.

At specified three-month intervals between the annual reviews, detainees may submit information demonstrating a material change in circumstances in support of their release.

The annual procedures will include an interview conducted by a panel of two professional INS officers who will also review the file and any of the alien’s submissions. Those officers will then make a custody recommendation to the HQPDU, which will render a decision in the case.

Whether made by District Directors or HQPDU, release decisions will include consideration of criminal and immigration violations, detention history, violence while incarcerated, evidence of rehabilitation and ties to the community. The detainee must demonstrate to the satisfaction of the Attorney General or designee that he or she does not pose a threat to the community and is likely to comply with the removal order.

Aliens will receive written notice of custody reviews, whether from the District Director or HQPDU. The notice advises the aliens that they may present information supporting a release and they may be assisted by an attorney or other person at no expense to the government. The alien will receive a separate notice of the opportunity for an annual interview and a written decision with an explanation of its basis.