[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR241.4]

[Page 486-493]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED--Table of Contents
 
              Subpart A--Post-hearing Detention and Removal
 
Sec. 241.4  Continued detention of inadmissible, criminal, and other aliens beyond the removal period.

    (a) Scope. The authority to continue an alien in custody or grant 
release or parole under sections 241(a)(6) and 212(d)(5)(A) of the Act 
shall be exercised by the Commissioner or Deputy Commissioner, as 
follows: Except as otherwise directed by the Commissioner or his or her 
designee, the Executive Associate Commissioner Field Operations 
(Executive Associate Commissioner) or the district director may continue 
an alien in custody beyond the removal period described in section 
241(a)(1) of the Act pursuant to the procedures described in this 
section. Except as provided in paragraph (b)(2) of this section, the 
provisions of this section apply to custody determinations for the 
following groups of aliens:
    (1) An alien ordered removed who is inadmissible under section 212 
of the Act, including an excludable alien convicted of one or more 
aggravated felony offenses and subject to the provisions of section 
501(b) of the Immigration Act of 1990, Public Law 101-649, 104 Stat. 
4978, 5048 (codified at 8 U.S.C. 1226(e)(1) through (e)(3)(1994));
    (2) An alien ordered removed who is removable under section 
237(a)(1)(C) of the Act;
    (3) An alien ordered removed who is removable under sections 
237(a)(2) or 237(a)(4) of the Act, including deportable criminal aliens 
whose cases are governed by former section 242 of the Act prior to 
amendment by the Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996, Div. C of Public Law 104-208, 110 Stat. 3009-546; and
    (4) An alien ordered removed who the decision-maker determines is 
unlikely to comply with the removal order or is a risk to the community.
    (b) Applicability to particular aliens--(1) Motions to reopen. An 
alien who has filed a motion to reopen immigration proceedings for 
consideration of relief from removal, including withholding or deferral 
of removal pursuant to 8 CFR 208.16 or 208.17, shall remain subject to 
the provisions of this section unless the motion to reopen is granted. 
Section 236 of the Act and 8 CFR 236.1 govern custody determinations for 
aliens who are in pending immigration proceedings before the Executive 
Office for Immigration Review.
    (2) Parole for certain Cuban nationals. The review procedures in 
this section do not apply to any inadmissible

[[Page 487]]

Mariel Cuban who is being detained by the Service pending an exclusion 
or removal proceeding, or following entry of a final exclusion or 
pending his or her return to Cuba or removal to another country. 
Instead, the determination whether to release on parole, or to revoke 
such parole, or to detain, shall in the case of a Mariel Cuban be 
governed by the procedures in 8 CFR 212.12.
    (3) Individuals granted withholding or deferral of removal. Aliens 
granted withholding of removal under section 241(b)(3) of the Act or 
withholding or deferral of removal under the Convention Against Torture 
who are otherwise subject to detention are subject to the provisions of 
this part 241. Individuals subject to a termination of deferral hearing 
under 8 CFR 208.17(d) remain subject to the provisions of this part 241 
throughout the termination process.
    (c) Delegation of authority. The Attorney General's statutory 
authority to make custody determinations under sections 241(a)(6) and 
212(d)(5)(A) of the Act when there is a final order of removal is 
delegated as follows:
    (1) District directors. The initial custody determination described 
in paragraph (h) of this section and any further custody determination 
concluded in the three-month period immediately following expiration of 
the 90-day removal period, subject to the provisions of paragraph (c)(2) 
of this section, will be made by the district director having 
jurisdiction over the alien. The district director shall maintain 
appropriate files respecting each detained alien reviewed for possible 
release, and shall have authority to determine the order in which the 
cases shall be reviewed, and to coordinate activities associated with 
these reviews in his or her respective district.
    (2) Headquarters Post-Order Detention Unit (HQPDU). For any alien 
the district director refers for further review after the 90-day removal 
period, or any alien who has not been released or removed by the 
expiration of the three-month period after the 90-day review, all 
further custody determinations will be made by the Executive Associate 
Commissioner, acting through the HQPDU.
    (3) The HQPDU review plan. The Executive Associate Commissioner 
shall appoint a Director of the HQPDU. The Director of the HQPDU shall 
have authority to establish and maintain appropriate files respecting 
each detained alien to be reviewed for possible release, to determine 
the order in which the cases shall be reviewed, and to coordinate 
activities associated with these reviews.
    (4) Additional delegation of authority. All references to the 
Executive Associate Commissioner and district director in this section 
shall be deemed to include any person or persons (including a committee) 
designated in writing by the district director or Executive Associate 
Commissioner to exercise powers under this section.
    (d) Custody determinations. A copy of any decision by the district 
director or Executive Associate Commissioner to release or to detain an 
alien shall be provided to the detained alien. A decision to retain 
custody shall briefly set forth the reasons for the continued detention. 
A decision to release may contain such special conditions as are 
considered appropriate in the opinion of the Service. Notwithstanding 
any other provisions of this section, there is no appeal from the 
district director's or the Executive Associate Commissioner's decision.
    (1) Showing by the alien. The district director or the Executive 
Associate Commissioner may release an alien if the alien demonstrates to 
the satisfaction of the Attorney General or her designee that his or her 
release will not pose a danger to the community or to the safety of 
other persons or to property or a significant risk of flight pending 
such alien's removal from the United States. The district director or 
the Executive Associate Commissioner may also, in accordance with the 
procedures and consideration of the factors set forth in this section, 
continue in custody any alien described in paragraphs (a) and (b)(1) of 
this section.
    (2) Service of decision and other documents. All notices, decisions, 
or other documents in connection with the custody reviews conducted 
under this section by the district director or Executive Associate 
Commissioner shall be served on the alien, in accordance with

[[Page 488]]

8 CFR 103.5a, by the Service district office having jurisdiction over 
the alien. Release documentation (including employment authorization if 
appropriate) shall be issued by the district office having jurisdiction 
over the alien in accordance with the custody determination made by the 
district director or by the Executive Associate Commissioner. Copies of 
all such documents will be retained in the alien's record and forwarded 
to the HQPDU.
    (3) Alien's representative. The alien's representative is required 
to complete Form G-28, Notice of Entry of Appearance as Attorney or 
Representative, at the time of the interview or prior to reviewing the 
detainee's records. The Service will forward by regular mail a copy of 
any notice or decision that is being served on the alien only to the 
attorney or representative of record. The alien remains responsible for 
notification to any other individual providing assistance to him or her.
    (e) Criteria for release. Before making any recommendation or 
decision to release a detainee, a majority of the Review Panel members, 
or the Director of the HQPDU in the case of a record review, must 
conclude that:
    (1) Travel documents for the alien are not available or, in the 
opinion of the Service, immediate removal, while proper, is otherwise 
not practicable or not in the public interest;
    (2) The detainee is presently a non-violent person;
    (3) The detainee is likely to remain nonviolent if released;
    (4) The detainee is not likely to pose a threat to the community 
following release;
    (5) The detainee is not likely to violate the conditions of release; 
and
    (6) The detainee does not pose a significant flight risk if 
released.
    (f) Factors for consideration. The following factors should be 
weighed in considering whether to recommend further detention or release 
of a detainee:
    (1) The nature and number of disciplinary infractions or incident 
reports received when incarcerated or while in Service custody;
    (2) The detainee's criminal conduct and criminal convictions, 
including consideration of the nature and severity of the alien's 
convictions, sentences imposed and time actually served, probation and 
criminal parole history, evidence of recidivism, and other criminal 
history;
    (3) Any available psychiatric and psychological reports pertaining 
to the detainee's mental health;
    (4) Evidence of rehabilitation including institutional progress 
relating to participation in work, educational, and vocational programs, 
where available;
    (5) Favorable factors, including ties to the United States such as 
the number of close relatives residing here lawfully;
    (6) Prior immigration violations and history;
    (7) The likelihood that the alien is a significant flight risk or 
may abscond to avoid removal, including history of escapes, failures to 
appear for immigration or other proceedings, absence without leave from 
any halfway house or sponsorship program, and other defaults; and
    (8) Any other information that is probative of whether the alien is 
likely to--
    (i) Adjust to life in a community,
    (ii) Engage in future acts of violence,
    (iii) Engage in future criminal activity,
    (iv) Pose a danger to the safety of himself or herself or to other 
persons or to property, or
    (v) Violate the conditions of his or her release from immigration 
custody pending removal from the United States.
    (g) Travel documents and docket control for aliens continued in 
detention beyond the removal period--(1) In general. The district 
director shall continue to undertake appropriate steps to secure travel 
documents for the alien both before and after the expiration of the 
removal period. If the district director is unable to secure travel 
documents within the removal period, he or she shall apply for 
assistance from Headquarters Detention and Deportation, Office of Field 
Operations. The district director shall promptly advise the HQPDU 
Director when travel documents are obtained for an alien whose custody 
is subject to review by the HQPDU. The Service's determination that 
receipt of a travel document is

[[Page 489]]

likely may by itself warrant continuation of detention pending the 
removal of the alien from the United States.
    (2) Availability of travel document. In making a custody 
determination, the district director and the Director of the HQPDU shall 
consider the ability to obtain a travel document for the alien. If it is 
established at any stage of a custody review that, in the judgment of 
the Service, travel documents can be obtained, or such document is 
forthcoming, the alien will not be released unless immediate removal is 
not practicable or in the public interest.
    (3) Removal. The Service will not conduct a custody review under 
these procedures when the Service notifies the alien that it is ready to 
execute an order of removal.
    (4) Alien's cooperation. Release will be denied if the alien fails 
or refuses to cooperate in the process of obtaining a travel document. 
See, e.g., section 241(a)(1)(C) of the Act.
    (h) District director's custody review procedures. The district 
director's custody determination will be developed in accordance with 
the following procedures:
    (1) Records review. The district director will conduct the initial 
custody review. For aliens described in paragraphs (a) and (b)(1) of 
this section, the district director will conduct a records review prior 
to the expiration of the 90-day removal period. This initial post-order 
custody review will consist of a review of the alien's records and any 
written information submitted in English to the district director by or 
on behalf of the alien. However, the district director may in his or her 
discretion schedule a personal or telephonic interview with the alien as 
part of this custody determination. The district director may also 
consider any other relevant information relating to the alien or his or 
her circumstances and custody status.
    (2) Notice to alien. The district director will provide written 
notice to the detainee approximately 30 days in advance of the pending 
records review so that the alien may submit information in writing in 
support of his or her release. The alien may be assisted by a person of 
his or her choice, subject to reasonable security concerns at the 
institution and panel's discretion, in preparing or submitting 
information in response to the district director's notice. Such 
assistance shall be at no expense to the Government. If the alien or his 
or her representative requests additional time to prepare materials 
beyond the time when the district director expects to conduct the 
records review, such a request will constitute a waiver of the 
requirement that the review occur prior to the expiration of the removal 
period.
    (3) Factors for consideration. The district director's review will 
include but is not limited to consideration of the factors described in 
paragraph (f) of this section. Before making any decision to release a 
detainee, the district director must be able to reach the conclusions 
set forth in paragraph (e) of this section.
    (4) District director's decision. The district director will notify 
the alien in writing that he or she is to be released from custody, or 
that he or she will be continued in detention pending removal or further 
review of his or her custody status.
    (5) District office staff. The district director may delegate the 
authority to conduct the custody review, develop recommendations, or 
render the custody or release decision to those persons directly 
responsible for detention within his or her district. This includes the 
deputy district director, the assistant director for detention and 
deportation, the officer-in-charge of a detention center, persons acting 
in such capacities, or such other persons as the district director may 
designate from the professional staff of the Service.
    (i) Determinations by the Executive Associate Commissioner. 
Determinations by the Executive Associate Commissioner to release or 
retain custody of aliens shall be developed in accordance with the 
following procedures.
    (1) Review panels. The HQPDU Director shall designate a panel or 
panels to make recommendations to the Executive Associate Commissioner. 
A Review Panel shall, except as otherwise provided, consist of two 
persons. Members of a Review Panel shall be selected from the 
professional staff of the Service. All recommendations by the two-

[[Page 490]]

member Review Panel shall be unanimous. If the vote of the two-member 
Review Panel is split, it shall adjourn its deliberations concerning 
that particular detainee until a third Review Panel member is added. The 
third member of any Review Panel shall be the Director of the HQPDU or 
his or her designee. A recommendation by a three-member Review Panel 
shall be by majority vote.
    (2) Records review. Initially, and at the beginning of each 
subsequent review, the HQPDU Director or a Review Panel shall review the 
alien's records. Upon completion of this records review, the HQPDU 
Director or the Review Panel may issue a written recommendation that the 
alien be released and reasons therefore.
    (3) Personal interview. (i) If the HQPDU Director does not accept a 
panel's recommendation to grant release after a records review, or if 
the alien is not recommended for release, a Review Panel shall 
personally interview the detainee. The scheduling of such interviews 
shall be at the discretion of the HQPDU Director. The HQPDU Director 
will provide a translator if he or she determines that such assistance 
is appropriate.
    (ii) The alien may be accompanied during the interview by a person 
of his or her choice, subject to reasonable security concerns at the 
institution's and panel's discretion, who is able to attend at the time 
of the scheduled interview. Such assistance shall be at no expense to 
the Government. The alien may submit to the Review Panel any 
information, in English, that he or she believes presents a basis for 
his or her release.
    (4) Alien's participation. Every alien shall respond to questions or 
provide other information when requested to do so by Service officials 
for the purpose of carrying out the provisions of this section.
    (5) Panel recommendation. Following completion of the interview and 
its deliberations, the Review Panel shall issue a written recommendation 
that the alien be released or remain in custody pending removal or 
further review. This written recommendation shall include a brief 
statement of the factors that the Review Panel deems material to its 
recommendation.
    (6) Determination. The Executive Associate Commissioner shall 
consider the recommendation and appropriate custody review materials and 
issue a custody determination, in the exercise of discretion under the 
standards of this section. The Executive Associate Commissioner's review 
will include but is not limited to consideration of the factors 
described in paragraph (f) of this section. Before making any decision 
to release a detainee, the Executive Associate Commissioner must be able 
to reach the conclusions set forth in paragraph (e) of this section. The 
Executive Associate Commissioner is not bound by the panel's 
recommendation.
    (j) Conditions of release--(1) In general. The district director or 
Executive Associate Commissioner shall impose such conditions or special 
conditions on release as the Service considers appropriate in an 
individual case or cases, including but not limited to the conditions of 
release noted in 8 CFR 212.5(c) and Sec. 241.5. An alien released under 
this section must abide by the release conditions specified by the 
Service in relation to his or her release or sponsorship.
    (2) Sponsorship. The district director or Executive Associate 
Commissioner may, in the exercise of discretion, condition release on 
placement with a close relative who agrees to act as a sponsor, such as 
a parent, spouse, child, or sibling who is a lawful permanent resident 
or a citizen of the United States, or may condition release on the 
alien's placement or participation in an approved halfway house, mental 
health project, or community project when, in the opinion of the 
Service, such condition is warranted. No detainee may be released until 
sponsorship, housing, or other placement has been found for the 
detainee, if ordered, including but not limited to, evidence of 
financial support.
    (3) Employment authorization. The district director and Executive 
Associate Commissioner may, in the exercise of discretion, grant 
employment authorization under the same conditions set forth in 
Sec. 241.5(c) for aliens released under an order of supervision.

[[Page 491]]

    (4) Withdrawal of release approval. The district director or 
Executive Associate Commissioner may, in the exercise of discretion, 
withdraw approval for release of any detained alien prior to release 
when, in the decision-maker's opinion, the conduct of the detainee, or 
any other circumstance, indicates that release would no longer be 
appropriate.
    (k) Timing of reviews. The timing of reviews shall be in accordance 
with the following guidelines:
    (1) District director. (i) Prior to the expiration of the 90-day 
removal period, the district director shall conduct a custody review for 
an alien described in paragraphs (a) and (b)(1) of this section where 
the alien's removal, while proper, cannot be accomplished during the 90-
day period because no country currently will accept the alien, or 
removal of the alien prior to expiration of the removal period is 
impracticable or contrary to the public interest. As provided in 
paragraph (h)(4) of this section, the district director will notify the 
alien in writing that he or she is to be released from custody, or that 
he or she will be continued in detention pending removal or further 
review of his or her custody status.
    (ii) When release is denied pending the alien's removal, the 
district director in his or her discretion may retain responsibility for 
custody determinations for up to three months after expiration of the 
90-day removal period, during which time the district director may 
conduct such additional review of the case as he or she deems 
appropriate. The district director may release the alien if he or she is 
not removed within the three-month period following the expiration of 
the 90-day removal period, in accordance with paragraphs (e), (f), and 
(j) of this section, or the district director may refer the alien to the 
HQPDU for further custody review.
    (2) HQPDU reviews. (i) District director referral for further 
review. When the district director refers a case to the HQPDU for 
further review, as provided in paragraph (c)(2) of this section, 
authority over the custody determination transfers to the Executive 
Associate Commissioner, according to procedures established by the 
HQPDU. The Service will provide the alien with approximately 30 days 
notice of this further review, which will ordinarily be conducted by the 
expiration of the removal period or as soon thereafter as practicable.
    (ii) District director retains jurisdiction. When the district 
director has advised the alien at the 90-day review as provided in 
paragraph (h)(4) of this section that he or she will remain in custody 
pending removal or further custody review, and the alien is not removed 
within three months of the district director's decision, authority over 
the custody determination transfers from the district director to the 
Executive Associate Commissioner. The initial HQPDU review will 
ordinarily be conducted at the expiration of the three-month period 
after the 90-day review or as soon thereafter as practicable. The 
Service will provide the alien with approximately 30 days notice of that 
review.
    (iii) Continued detention cases. A subsequent review shall 
ordinarily be commenced for any detainee within approximately one year 
of a decision by the Executive Associate Commissioner declining to grant 
release. Not more than once every three months in the interim between 
annual reviews, the alien may submit a written request to the HQPDU for 
release consideration based on a proper showing of a material change in 
circumstances since the last annual review. The HQPDU shall respond to 
the alien's request in writing within approximately 90 days.
    (iv) Review scheduling. Reviews will be conducted within the time 
periods specified in paragraphs (k)(1)(i), (k)(2)(i), (k)(2)(ii), and 
(k)(2)(iii) of this section or as soon as possible thereafter, allowing 
for any unforeseen circumstances or emergent situation.
    (v) Discretionary reviews. The HQPDU Director, in his or her 
discretion, may schedule a review of a detainee at shorter intervals 
when he or she deems such review to be warranted.
    (3) Postponement of review. In the case of an alien who is in the 
custody of the Service, the district director or the HQPDU Director may, 
in his or her discretion, suspend or postpone the custody review process 
if such detainee's prompt removal is practicable and

[[Page 492]]

proper, or for other good cause. The decision and reasons for the delay 
shall be documented in the alien's custody review file or A file, as 
appropriate. Reasonable care will be exercised to ensure that the 
alien's case is reviewed once the reason for delay is remedied or if the 
alien is not removed from the United States as anticipated at the time 
review was suspended or postponed.
    (4) Transition provisions. (i) The provisions of this section apply 
to cases that have already received the 90-day review. If the alien's 
last review under the procedures set out in the Executive Associate 
Commissioner memoranda entitled Detention Procedures for Aliens Whose 
Immediate Repatriation is Not Possible or Practicable, February 3, 1999; 
Supplemental Detention Procedures, April 30, 1999; Interim Changes and 
Instructions for Conduct of Post-order Custody Reviews, August 6, 1999; 
Review of Long-term Detainees, October 22, 1999, was a records review 
and the alien remains in custody, the HQPDU will conduct a custody 
review within six months of that review (Memoranda available at http://
www.ins.usdoj.gov). If the alien's last review included an interview, 
the HQPDU review will be scheduled one year from the last review. These 
reviews will be conducted pursuant to the procedures in paragraph (i) of 
this section, within the time periods specified in this paragraph or as 
soon as possible thereafter, allowing for resource limitations, 
unforeseen circumstances, or an emergent situation.
    (ii) Any case pending before the Board on December 21, 2000 will be 
completed by the Board. If the Board affirms the district director's 
decision to continue the alien in detention, the next scheduled custody 
review will be conducted one year after the Board's decision in 
accordance with the procedures in paragraph (i) of this section.
    (l) Revocation of release--(1) Violation of conditions of release. 
Any alien described in paragraph (a) or (b)(1) of this section who has 
been released under an order of supervision or other conditions of 
release who violates the conditions of release may be returned to 
custody. Any such alien who violates the conditions of an order of 
supervision is subject to the penalties described in section 243(b) of 
the Act. Upon revocation, the alien will be notified of the reasons for 
revocation of his or her release or parole. The alien will be afforded 
an initial informal interview promptly after his or her return to 
Service custody to afford the alien an opportunity to respond to the 
reasons for revocation stated in the notification.
    (2) Determination by the Service. The Executive Associate 
Commissioner shall have authority, in the exercise of discretion, to 
revoke release and return to Service custody an alien previously 
approved for release under the procedures in this section. A district 
director may also revoke release of an alien when, in the district 
director's opinion, revocation is in the public interest and 
circumstances do not reasonably permit referral of the case to the 
Executive Associate Commissioner. Release may be revoked in the exercise 
of discretion when, in the opinion of the revoking official:
    (i) The purposes of release have been served;
    (ii) The alien violates any condition of release;
    (iii) It is appropriate to enforce a removal order or to commence 
removal proceedings against an alien; or
    (iv) The conduct of the alien, or any other circumstance, indicates 
that release would no longer be appropriate.
    (3) Timing of review when release is revoked. If the alien is not 
released from custody following the informal interview provided for in 
paragraph (l)(1) of this section, the HQPDU Director shall schedule the 
review process in the case of an alien whose previous release or parole 
from immigration custody pursuant to a decision of either the district 
director or the Executive Associate Commissioner under the procedures in 
this section has been or is subject to being revoked. The normal review 
process will commence with notification to the alien of a records review 
and scheduling of an interview, which will ordinarily be expected to 
occur within approximately three months after release is revoked. That 
custody review will include a final evaluation of any contested facts 
relevant to the

[[Page 493]]

revocation and a determination whether the facts as determined warrant 
revocation and further denial of release. Thereafter, custody reviews 
will be conducted annually under the provisions of paragraphs (i), (j), 
and (k) of this section.

[65 FR 80294, Dec. 21, 2000]