[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR241.13]

[Page 477-481]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
 
PART 241_APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED--Table
 
              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.

[[Page 478]]

    (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.
    (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

[[Page 479]]

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 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

[[Page 480]]

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 
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

[[Page 481]]

foreseeable future under the circumstances.

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