INS ANNOUNCES NEW POLICY ON LONG-TERM DETENTION

With an increasing number of federal judges declaring the INS practice of indefinite detention unconstitutional, Attorney General Janet Reno and INS Commissioner Doris Meissner announced last month that new procedures for review of long-term detention cases had been developed and were immediately effective. There are over 2,400 people in essentially permanent INS custody because they are undeportable, and 15,000 people in custody pending deportation at any one time.

Under the new procedures, once the INS takes a person against whom there is a final order of removal into custody, the propriety of continued custody must be reviewed by the District Director within 90-days. Within 30 days of this custody determination, the INS must provide the detainee with written notification of the release decision. If the decision is to release, the notice must give the conditions of release. If the decision is to continue custody, the notice must specify the factors behind the Director’s decision.

If detention is continued, a second review must be held within either nine months of the final order of removal or six months from the first custody review, whichever is longer. The detainee must receive written notice of this hearing at least 30 days before it is held. The notice is also to specify factors relevant to the custody determination, and that the detainee has the burden of proving by clear and convincing evidence that they are not a threat to the community and are likely to comply with the removal order. The detainee must be interviewed at this stage, and to continue detention both the District Director and INS headquarters must agree.

If release is not authorized at this stage, the District Director must conduct reviews of the detention every six months, and at least once a year INS headquarters must concur to continue detention.

Among the factors that will be considered in continuing detention are the detainee’s criminal history, any immigration violations, violence while incarcerated or detained, their rehabilitation, and their ties to the community.

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