[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: 8CFR241.4]



[Page 456-464]

 

                     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. 241.4  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 for Field Operations 

(Executive Associate Commissioner), the Deputy Executive Associate 

Commissioner for Detention and Removal, the Director of the Detention 

and Removal Field Office 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 for in paragraph (b)(2) of this section, the provisions of this 

section apply to the custody determinations for the following group 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 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.



[[Page 457]]



    (4) Service determination under 8 CFR 241.13. The custody review 

procedures in this section do not apply after the Service has made a 

determination, pursuant to the procedures provided in 8 CFR 241.13, that 

there is no significant likelihood that an alien under a final order of 

removal can be removed in the reasonably foreseeable future. However, if 

the Service subsequently determines, because of a change of 

circumstances, that there is a significant likelihood that the alien may 

be removed in the reasonably foreseeable future to the country to which 

the alien was ordered removed or to a third country, the alien shall 

again be subject to the custody review procedures under this section.

    (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 and Directors of Detention and Removal Field 

Offices. The initial custody determination described in paragraph (h) of 

this section and any further custody determination concluded in the 3 

month period immediately following the 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 or the Director of the Detention 

and Removal Field Office having jurisdiction over the alien. The 

district director or the Director of the Detention and Removal Field 

Office 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 jurisdictional 

area.

    (2) Headquarters Post-Order Detention Unit (HQPDU). For any alien 

the district director refers for further review after the removal 

period, or any alien who has not been released or removed by the 

expiration of the three-month period after the 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, the Director of the Detention and 

Removal Field Office, and the district director in this section shall be 

deemed to include any person or persons (including a committee) 

designated in writing by the Executive Associate Commissioner, the 

Director of the Detention and Removal Field Office, or the district 

director to exercise powers under this section.

    (d) Custody determinations. A copy of any decision by the district 

director, Director of the Detention and Removal Field Office, 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, Director of the 

Detention and Removal Field Office, or 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, Director of the Detention 

and Removal Field Office, or 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.



[[Page 458]]



    (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, Director of the Detention 

and Removal Field Office, or Executive Associate Commissioner shall be 

served on the alien, in accordance with 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--(1) Removal period. (i) The removal period for an alien 

subject to a final order of removal shall begin on the latest of the 

following dates:

    (A) the date the order becomes administratively final;



[[Page 459]]



    (B) If the removal order is subject to judicial review (including 

review by habeas corpus) and if the court has ordered a stay of the 

alien's removal, the date on which, consistent with the court's order, 

the removal order can be executed and the alien removed; or

    (C) If the alien was detained or confined, except in connection with 

a proceeding under this chapter relating to removability, the date the 

alien is released from the detention or confinement.

    (ii) The removal period shall run for a period of 90 days. However, 

the removal period is extended under section 241(a)(1)(C) of the Act if 

the alien fails or refuses to make timely application in good faith for 

travel or other documents necessary to the alien's departure or 

conspires or acts to prevent the alien's removal subject to an order of 

removal. The Service will provide such an alien with a Notice of Failure 

to Comply, as provided in paragraph (g)(5) of this section, before the 

expiration of the removal period. The removal period shall be extended 

until the alien demonstrates to the Service that he or she has complied 

with the statutory obligations. Once the alien has complied with his or 

her obligations under the law, the Service shall have a reasonable 

period of time in order to effect the alien's removal.

    (2) 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 likely may 

by itself warrant continuation of detention pending the removal of the 

alien from the United States.

    (3) 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.

    (4) 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.

    (5) Alien's compliance and cooperation. (i) Release will be denied 

and the alien may remain in detention if the alien fails or refuses to 

make timely application in good faith for travel documents necessary to 

the alien's departure or conspires or acts to prevent the alien's 

removal. The detention provisions of section 241(a)(2) of the Act will 

continue to apply, including provisions that mandate detention of 

certain criminal and terrorist aliens.

    (ii) The Service shall serve the alien with a Notice of Failure to 

Comply, which shall advise the alien of the following: the provisions of 

sections 241(a)(1)(C) (extension of removal period) and 243(a) of the 

Act (criminal penalties related to removal); the circumstances 

demonstrating his or her failure to comply with the requirements of 

section 241(a)(1)(C) of the Act; and an explanation of the necessary 

steps that the alien must take in order to comply with the statutory 

requirements.

    (iii) The Service shall advise the alien that the Notice of Failure 

to Comply shall have the effect of extending the removal period as 

provided by law, if the removal period has not yet expired, and that the 

Service is not obligated to complete its scheduled custody reviews under 

this section until the alien has demonstrated compliance with the 

statutory obligations.

    (iv) The fact that the Service does not provide a Notice of Failure 

to Comply, within the 90-day removal period, to an alien who has failed 

to comply with the requirements of section 241(a)(1)(C) of the Act, 

shall not have the effect of excusing the alien's conduct.



[[Page 460]]



    (h) District director's or Director of the Detention and Removal 

Field Office's custody review procedures. The district director's or 

Director of the Detention and Removal Field Office's custody 

determination will be developed in accordance with the following 

procedures:

    (1) Records review. The district director or Director of the 

Detention and Removal Field Office will conduct the initial custody 

review. For aliens described in paragraphs (a) and (b)(1) of this 

section, the district director or Director of the Detention and Removal 

Field Office will conduct a records review prior to the expiration of 

the 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 or Director of the Detention and Removal 

Field Office may in his or her discretion schedule a personal or 

telephonic interview with the alien as part of this custody 

determination. The district director or Director of the Detention and 

Removal Field Office 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 or Director of the 

Detention and Removal Field Office 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 or Director of the Detention and Removal Field Office 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 or Director 

of the Detention and Removal Field Office'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 or Director of the Detention and Removal 

Field Office's decision. The district director or Director of the 

Detention and Removal Field Office 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 or Detention and Removal Field office staff. The 

district director or the Director of the Detention and Removal Field 

Office may delegate the authority to conduct the custody review, develop 

recommendations, or render the custody or release decisions to those 

persons directly responsible for detention within his or her 

geographical areas of responsibility. This includes the deputy district 

director, the assistant director for detention and deportation, the 

officer-in-charge of a detention center, the assistant director of the 

detention and removal field office, the director of the detention and 

removal resident office, the assistant director of the detention and 

removal resident office, officers in charge of service processing 

centers, or such other persons as the district director or the Director 

of the Detention and Removal Field Office 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 461]]



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.

    (7) No significant likelihood or removal. During the custody review 

process as provided in this paragraph (i), or at the conclusion of that 

review, if the alien submits, or the record contains, information 

providing a substantial reason to believe that the removal of a detained 

alien is not significantly likely in the reasonably foreseeable future, 

the HQPDU shall treat that as a request for review and initiate the 

review procedures under Sec. 241.13. To the extent relevant, the HQPDU 

may consider any information developed during the custody review process 

under this section in connection with the determinations to be made by 

the Service under Sec. 241.13. The Service shall complete the custody 

review under this section unless the HQPDU is able to make a prompt 

determination to release the alien under an order of supervision under 

Sec. 241.13 because there is no significant likelihood that the alien 

will be removed in the reasonably foreseeable future.

    (j) Conditions of release--(1) In general. The district director, 

Director of the Detention and Removal Field Office, 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



[[Page 462]]



Service in relation to his or her release or sponsorship.

    (2) Sponsorship. The district director, Director of the Detention 

and Removal Field Office, 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, Director of the 

Detention and Removal Field Office, and the 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.

    (4) Withdrawal of release approval. The district director, Director 

of the Detention and Removal Field Office, 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 or Director of the Detention and Removal Field 

Office. (i) Prior to the expiration of the removal period, the district 

director or Director of the Detention and Removal Field Office 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 period, or is impracticable or contrary to 

the public interest. As provided in paragraph (h)(4) of this section, 

the district director or Director of the Detention and Removal Field 

Office 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 or Director of the Detention and Removal Field Office 

in his or her discretion may retain responsibility for custody 

determinations for up to three months after expiration of the removal 

period, during which time the district director or Director of the 

Detention and Removal Field Office 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 removal period, in accordance 

with paragraphs (e), (f), and (j) of this section, or the district 

director or Director of the Detention and Removal Field Office may refer 

the alien to the HQPDU for further custody review.

    (2) HQPDU reviews--(i) District director or Director of the 

Detention and Removal Field Office referral for further review. When the 

district director or Director of the Detention and Removal Field Office 

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 or Director of the Detention and Removal 

Field Office retains jurisdiction. When the district director or 

Director of the Detention and Removal Field Office 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



[[Page 463]]



determination transfers from the district director or Director of the 

Detention and Removal Field Office 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 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



[[Page 464]]



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, Director of the Detention and Removal Field Office, or 

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 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, as amended at 66 FR 56976, 56977, Nov. 14, 

2001; 67 FR 39259, June 7, 2002; 70 FR 673, Jan. 5, 2005]