INS ISSUES PROPOSAL FOR NEW DETENTION REVIEW REGULATIONS The INS recently released its proposal for new regulations governing the detention review process. Comments on the proposal will be accepted until July 31, 2000.
In 1996 Congress made numerous important changes to the detention process. Before 1996, a criminal alien could be detained for only six months after their removal order became final. After that six-month period, if the person had not been deported, they had to be released. This restriction was eliminated in the Illegal Immigration Reform and Immigrant Responsibility Act. Because of this change, many criminal aliens continue in detention well past the removal period, often because the US lacks repatriation agreements with their countries of nationality. There have been numerous federal court cases testing the authority of the INS to continue detention, and this rule is designed to provide uniformity in the INS’ approach to such detentions.
While there are currently procedures for review of continued detention, they have been set forth only in memo, and do not carry the same weight or force a regulation does. The procedures set forth in this proposed regulation will closely mirror the procedures currently governing the release of Mariel Cubans.
This rule will apply to inadmissible, noncriminal, and criminal aliens who have not been removed within the 90-day removal period after the removal order against them has become final.
Under the proposed regulation, the local INS District Director will make an initial custody review after the 90-day removal period has expired. The Director must review the file, but does not need to interview the alien. Such an interview is allowed if the Director finds it appropriate. The alien will be permitted to submit any relevant written evidence in support of their release. After conducting this review, the Director must notify the alien in writing of the custody determination. If the determination is to continue custody, the Director can make another custody determination within three months. During this three-month period, the alien may again submit evidence supporting their release. The Director may again decide to release the alien, or to continue detention.
If, after this three-month period, the alien has not been released or repatriated, the case is transferred to the Headquarters Post-Order Detention Unit. The HQPDU must review the case within 30 days. If it decides to continue detention, the alien must be given an opportunity to meet with the panel in person. The panel will then make a custody recommendation to the full HQPDU, which will then make a final custody decision. This decision is not subject to review. If the alien is not released, reviews of the continued detention must be conducted annually.
The decision of the panel is not binding on the HQPDU. It should be an important factor in helping it make its decision, but it can take into consideration any other evidence it finds relevant. Such factors will include changes in foreign and domestic affairs, public policy and humanitarian concerns, and the fiscal burden of continued detention.
During the annual custody reviews, the alien may the assisted by a person of their choosing. This person does not have to be an attorney. When notifying the alien of the pending custody review, the INS must provide a list of low-cost and free attorneys located near the place of custody.
This rule would end the current practice of appealing custody determinations to the Board of Immigration Appeals. It would also eliminate the need for the alien to request review of his custody by creating a program of periodic review.
If repatriation becomes possible, reviews no longer need to be conducted because the alien can be removed. Custody will continue in these cases until the removal is effected. < Back | Next > Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. | 
