[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR241.13]



[Page 469-472]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 241_APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED--Table 

of Contents

 

              Subpart A_Post-hearing Detention and Removal

 

Sec. 241.13  Determination of whether there is a significant likelihood 

of removing a detained alien in the reasonably foreseeable future.



    (a) Scope. This section establishes special review procedures for 

those aliens who are subject to a final order of removal and are 

detained under the custody review procedures provided at Sec. 241.4 

after the expiration of the removal period, where the alien has provided 

good reason to believe there is no significant likelihood of removal to 

the country to which he or she was ordered removed, or to a third 

country, in the reasonably foreseeable future.

    (b) Applicability to particular aliens--(1) Relationship to Sec. 

241.4. Section 241.4 shall continue to govern the detention of aliens 

under a final order of removal, including aliens who have requested a 

review of the likelihood of their removal under this section, unless the 

Service makes a determination under this section that there is no 

significant likelihood of removal in the reasonably foreseeable future. 

The Service may release an alien under an order of supervision under 

Sec. 241.4 if it determines that the alien would not pose a danger to 

the public or a risk of flight, without regard to the likelihood of the 

alien's removal in the reasonably foreseeable future.

    (2) Continued detention pending determinations. (i) The Service's 

Headquarters Post-order Detention Unit (HQPDU) shall continue in custody 

any alien described in paragraph (a) of this section during the time the 

Service is pursuing the procedures of this section to determine whether 

there is no significant likelihood the alien can be removed in the 

reasonably foreseeable future. The HQPDU shall continue in custody any 

alien described in paragraph (a) of this section for whom it has 

determined that special circumstances exist and custody procedures under 

Sec. 241.14 have been initiated.

    (ii) The HQPDU has no obligation to release an alien under this 

section until the HQPDU has had the opportunity during a six-month 

period, dating from the beginning of the removal period (whenever that 

period begins and unless that period is extended as provided in section 

241(a)(1) of the Act), to make its determination as to whether there is 

a significant likelihood of removal in the reasonably foreseeable 

future.

    (3) Limitations. This section does not apply to:

    (i) Arriving aliens, including those who have not entered the United 

States, those who have been granted immigration parole into the United 

States, and Mariel Cubans whose parole is governed by Sec. 212.12 of 

this chapter;

    (ii) Aliens subject to a final order of removal who are still within 

the removal period, including aliens whose removal period has been 

extended for failure to comply with the requirements of section 

241(a)(1)(C) of the Act; or

    (iii) Aliens who are ordered removed by the Alien Terrorist Removal 

Court pursuant to title 5 of the Act.

    (c) Delegation of authority. The HQPDU shall conduct a review under 

this section, in response to a request from a detained alien, in order 

to determine whether there is no significant likelihood that the alien 

will be removed in the reasonably foreseeable future. If so, the HQPDU 

shall determine whether the alien should be released from custody under 

appropriate conditions of supervision or should be referred for a 

determination under Sec. 241.14 as to whether the alien's continued 

detention may be justified by special circumstances.



[[Page 470]]



    (d) Showing by the alien--(1) Written request. An eligible alien may 

submit a written request for release to the HQPDU asserting the basis 

for the alien's belief that there is no significant likelihood that the 

alien will be removed in the reasonably foreseeable future . The alien 

may submit whatever documentation to the HQPDU he or she wishes in 

support of the assertion that there is no significant likelihood of 

removal in the reasonably foreseeable future.

    (2) Compliance and cooperation with removal efforts. The alien shall 

include with the written request information sufficient to establish his 

or her compliance with the obligation to effect his or her removal and 

to cooperate in the process of obtaining necessary travel documents.

    (3) Timing of request. An eligible alien subject to a final order of 

removal may submit, at any time after the removal order becomes final, a 

written request under this section asserting that his or her removal is 

not significantly likely in the reasonably foreseeable future. However, 

the Service may, in the exercise of its discretion, postpone its 

consideration of such a request until after expiration of the removal 

period.

    (e) Review by HQPDU--(1) Initial response. Within 10 business days 

after the HQPDU receives the request (or, if later, the expiration of 

the removal period), the HQPDU shall respond in writing to the alien, 

with a copy to counsel of record, by regular mail, acknowledging receipt 

of the request for a review under this section and explaining the 

procedures that will be used to evaluate the request. The notice shall 

advise the alien that the Service may continue to detain the alien until 

it has made a determination under this section whether there is a 

significant likelihood the alien can be removed in the reasonably 

foreseeable future.

    (2) Lack of compliance, failure to cooperate. The HQPDU shall first 

determine if the alien has failed to make reasonable efforts to comply 

with the removal order, has failed to cooperate fully in effecting 

removal, or has obstructed or hampered the removal process. If so, the 

HQPDU shall so advise the alien in writing, with a copy to counsel of 

record by regular mail. The HQPDU shall advise the alien of the efforts 

he or she needs to make in order to assist in securing travel documents 

for return to his or her country of origin or a third country, as well 

as the consequences of failure to make such efforts or to cooperate, 

including the provisions of section 243(a) of the Act. The Service shall 

not be obligated to conduct a further consideration of the alien's 

request for release until the alien has responded to the HQPDU and has 

established his or her compliance with the statutory requirements.

    (3) Referral to the State Department. If the HQPDU believes that the 

alien's request provides grounds for further review, the Service may, in 

the exercise of its discretion, forward a copy of the alien's release 

request to the Department of State for information and assistance. The 

Department of State may provide detailed country conditions information 

or any other information that may be relevant to whether a travel 

document is obtainable from the country at issue. The Department of 

State may also provide an assessment of the accuracy of the alien's 

assertion that he or she cannot be returned to the country at issue or 

to a third country. When the Service bases its decision, in whole or in 

part, on information provided by the Department of State, that 

information shall be made part of the record.

    (4) Response by alien. The Service shall permit the alien an 

opportunity to respond to the evidence on which the Service intends to 

rely, including the Department of State's submission, if any, and other 

evidence of record presented by the Service prior to any HQPDU decision. 

The alien may provide any additional relevant information to the 

Service, including reasons why his or her removal would not be 

significantly likely in the reasonably foreseeable future even though 

the Service has generally been able to accomplish the removal of other 

aliens to the particular country.

    (5) Interview. The HQPDU may grant the alien an interview, whether 

telephonically or in person, if the HQPDU determines that an interview 

would provide assistance in reaching a decision. If an interview is 

scheduled, the HQPDU will provide an interpreter



[[Page 471]]



upon its determination that such assistance is appropriate.

    (6) Special circumstances. If the Service determines that there are 

special circumstances justifying the alien's continued detention 

nowithstanding the determination that removal is not significantly 

likely in the reasonably foreseeable future, the Service shall initiate 

the review procedures in Sec. 241.14, and provide written notice to the 

alien. In appropriate cases, the Service may initiate review proceedings 

under Sec. 241.14 before completing the HQPDU review under this 

section.

    (f) Factors for consideration. The HQPDU shall consider all the 

facts of the case including, but not limited to, the history of the 

alien's efforts to comply with the order of removal, the history of the 

Service's efforts to remove aliens to the country in question or to 

third countries, including the ongoing nature of the Service's efforts 

to remove this alien and the alien's assistance with those efforts, the 

reasonably foreseeable results of those efforts, and the views of the 

Department of State regarding the prospects for removal of aliens to the 

country or countries in question. Where the Service is continuing its 

efforts to remove the alien, there is no presumptive period of time 

within which the alien's removal must be accomplished, but the prospects 

for the timeliness of removal must be reasonable under the 

circumstances.

    (g) Decision. The HQPDU shall issue a written decision based on the 

administrative record, including any documentation provided by the 

alien, regarding the likelihood of removal and whether there is a 

significant likelihood that the alien will be removed in the reasonably 

foreseeable future under the circumstances. The HQPDU shall provide the 

decision to the alien, with a copy to counsel of record, by regular 

mail.

    (1) Finding of no significant likelihood of removal. If the HQPDU 

determines at the conclusion of the review that there is no significant 

likelihood that the alien will be removed in the reasonably foreseeable 

future, despite the Service's and the alien's efforts to effect removal, 

then the HQPDU shall so advise the alien. Unless there are special 

circumstances justifying continued detention, the Service shall promptly 

make arrangements for the release of the alien subject to appropriate 

conditions, as provided in paragraph (h) of this section. The Service 

may require that the alien submit to a medical or psychiatric 

examination prior to establishing appropriate conditions for release or 

determining whether to refer the alien for further proceedings under 

Sec. 214.14 because of special circumstances justifying continued 

detention. The Service is not required to release an alien if the alien 

refuses to submit to a medical or psychiatric examination as ordered.

    (2) Denial. If the HQPDU determines at the conclusion of the review 

that there is a significant likelihood that the alien will be removed in 

the reasonably foreseeable future, the HQPDU shall deny the alien's 

request under this section. The denial shall advise the alien that his 

or her detention will continue to be governed under the established 

standards in Sec. 214.4. There is no administrative appeal from the 

HQPDU decision denying a request from an alien under this section.

    (h) Conditions of release--(1) In general. An alien's release 

pursuant to an HQPDU determination that the alien's removal is not 

significantly likely in the reasonably foreseeable future shall be upon 

appropriate conditions specified in this paragraph and in the order of 

supervision, in order to protect the public safety and to promote the 

ability of the Service to effect the alien's removal as ordered, or 

removal to a third country, should circumstances change in the future. 

The order of supervision shall include all of the conditions provided in 

section 241(a)(3) of the Act, and Sec. 241.5, and shall also include 

the conditions that the alien obey all laws, including any applicable 

prohibitions on the possession or use of firearms (see, e.g., 18 U.S.C. 

922(g)); and that the alien continue to seek to obtain travel documents 

and provide the Service with all correspondence to Embassies/Consulates 

requesting the issuance of travel documents and any reply from the 

Embassy/Consulate. The order of supervision may also include any other 

conditions that the HQPDU



[[Page 472]]



considers necessary to ensure public safety and guarantee the alien's 

compliance with the order of removal, including, but not limited to, 

attendance at any rehabilitative/sponsorship program or submission for 

medical or psychiatric examination, as ordered.

    (2) Advice of consequences for violating conditions of release. The 

order of supervision shall advise an alien released under this section 

that he or she must abide by the conditions of release specified by the 

Service. The order of supervision shall also advise the alien of the 

consequences of violation of the conditions of release, including the 

authority to return the alien to custody and the sanctions provided in 

section 243(b) of the Act.

    (3) Employment authorization. The Service may, in the exercise of 

its discretion, grant employment authorization under the same conditions 

set forth in Sec. 241.5(c) for aliens released under an order of 

supervision.

    (4) Withdrawal of release approval. The Service may, in the exercise 

of its discretion, withdraw approval for release of any alien under this 

section prior to release in order to effect removal in the reasonably 

foreseeable future or where the alien refuses to comply with the 

conditions of release.

    (i) Revocation of release--(1) Violation of conditions of release. 

Any alien who has been released under an order of supervision under this 

section who violates any of the conditions of release may be returned to 

custody and is subject to the penalties described in section 243(b) of 

the Act. In suitable cases, the HQPDU shall refer the case to the 

appropriate U.S. Attorney for criminal prosecution. The alien may be 

continued in detention for an additional six months in order to effect 

the alien's removal, if possible, and to effect the conditions under 

which the alien had been released.

    (2) Revocation for removal. The Service may revoke an alien's 

release under this section and return the alien to custody if, on 

account of changed circumstances, the Service determines that there is a 

significant likelihood that the alien may be removed in the reasonably 

foreseeable future. Thereafter, if the alien is not released from 

custody following the informal interview provided for in paragraph 

(h)(3) of this section, the provisions of Sec. 241.4 shall govern the 

alien's continued detention pending removal.

    (3) Revocation procedures. Upon revocation, the alien will be 

notified of the reasons for revocation of his or her release. The 

Service will conduct 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. The 

alien may submit any evidence or information that he or she believes 

shows there is no significant likelihood he or she be removed in the 

reasonably foreseeable future, or that he or she has not violated the 

order of supervision. The revocation custody review will include an 

evaluation of any contested facts relevant to the revocation and a 

determination whether the facts as determined warrant revocation and 

further denial of release.

    (j) Subsequent requests for review. If the Service has denied an 

alien's request for release under this section, the alien may submit a 

request for review of his or her detention under this section, six 

months after the Service's last denial of release under this section. 

After applying the procedures in this section, the HQPDU shall consider 

any additional evidence provided by the alien or available to the 

Service as well as the evidence in the prior proceedings but the HQPDC 

shall render a de novo decision on the likelihood of removing the alien 

in the reasonably foreseeable future under the circumstances.



[66 FR 56977, Nov. 14, 2001, as amended at 70 FR 673, Jan. 5, 2005]