[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: 8CFR241.4]

[Page 464-472]
 
                     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.  241.4  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

[[Page 465]]

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.
    (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

[[Page 466]]

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.
    (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

[[Page 467]]

    (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;
    (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

[[Page 468]]

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.
    (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

[[Page 469]]

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-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

[[Page 470]]

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 
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

[[Page 471]]

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 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.

[[Page 472]]

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, 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]