In late May, the INS established a regulation for the detention of criminal aliens pursuant to the Transition Period Custody Rules (TPCR) as set out in the IIRAIRA. The purpose of this rule is to provide uniformity in this practice among INS officers and immigration judges.
The final rule provides for the mandatory detention of criminal aliens during deportation proceedings so as to prevent their flight. To be subject to the rule, the alien must have a serious criminal conviction constituting a basis for removal from the U.S.
Permanent resident aliens are almost always subject to an individualized custody determination, not mandatory detention, under this rule. However, exceptions are made under extreme circumstances listed under § 236.1(c)(5). This section provides factors to determine whether an individual poses a flight risk and a danger to the community. In other words, it is only within a narrow range of situations specified in the rule that a permanent resident alien will be subject to mandatory detention without an individual determination.
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