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INS RELEASES MEMO ON DETENTION AND RELEASE OF CRIMINAL ALIENS
Last March, the INS General Counsel issued a memo on when the Service will detain those subject to a final removal order.  This memo has just been released to the public. 
The memo first addressed the detention of non-criminal aliens.  Once a deportation order becomes final, the INS has a 90-day “removal period” during which it must seek to deport the alien.  During this period, the INS may detain the alien, but is not required to.  Likewise, if the alien delays removal, such as by filing an appeal, the INS may, but is not required to detain the alien.  If the INS has not deported the alien within the 90-day period, the alien must be released unless the INS determines that the he is a flight risk or a threat to the community.  
Criminal aliens are treated as an exception to the above-stated procedure.  Criminal aliens, unlike non-criminals, are to be detained while in deportation proceedings.  Once the deportation order against them becomes final, and the removal period begins, the aliens must be detained.  If the alien seeks review of the deportation order, detention is to continue.  If the court issues a stay of removal the alien may be released, but if the court’s final decision is adverse to the alien, another removal period begins and the alien must again be detained.  If the INS fails to deport a criminal alien during the removal period, it may continue detention, although detention is not mandatory.  It is, however, as the INS noted in a footnote, unlikely that it would ever release such aliens.