INS ADOPTS NEW POLICY ON MANDATORY DETENTION

Responding to numerous federal court decisions, the Immigration and Naturalization Service has changed its interpretation of the mandatory detention requirements imposed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Section 236(c) of the Immigration and Nationality Act requires the INS take certain individuals who are deportable by reason of having committed a crime into custody after they are released from incarceration. Until now, the INS interpreted this provision to mean that any individual apprehended by the INS after October 8, 1999 (the date specified in the statute), must be detained. Under the new INS interpretation, anyone who completes their sentence before October 9, 1998 may be eligible for release from detention. Someone released from detention but still under probation would now not be subject to mandatory detention.

Thirteen federal courts that addressed this issue disagreed with the INS’s earlier position, finding that "released" referred to release from the criminal sentence. Under the federal court interpretation, only those who were released from criminal custody after October 9, 1998 were subject to mandatory detention.

The INS emphasizes that decisions on whether to detain someone pending deportation will be made on a case by case basis, releasing only those who completed their criminal sentence before October 9, 1998, do not pose a danger to the community, and are likely to appear at future hearings. The same case by case review will also be applied to those who the INS may encounter in the future.

In making the determination whether to release someone while deportation proceedings are pending, the INS is to consider traditional factors in making a bail or bond determination, such as the threat release may pose to the public, flight risk, the health of the detained person, and the detained persons ties to the community, such as work and family. These custody determinations are subject to review by the Executive Office for Immigration Review. The INS hopes to have made new custody determinations for all people who may benefit from this policy before the end of July. The agency has ordered its regional offices to identify potential candidates for release. The agency believes about 1,000 people will be affected by the new interpretation.

It is important to note that this interpretation only applies to people in deportation proceedings, not someone with a final order of removal pending.

Not all immigration judges are abiding by the INS policy. Reports have been circulating that immigration judges in Oakdale, Louisiana, for example, are taking the position that the INS change in its interpretation of "when released" is not binding on the Executive Office for Immigration review and that anyone who came into INS custody after October 8, 1998 continues to be subject to mandatory detention regardless of when they are released from jail.

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