Procedures for the Detention and Release of Criminal Aliens by the Immigration and Naturalization Service and for Custody Redeterminations by the Executive Office for Immigration Review [63 FR 27441] [FR 35-98]

DOCUMENT NUMBER: FR 35-98

FEDERAL REGISTER CITE: 63 FR 27441

DATE OF PUBLICATION: May 19, 1998;

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service and

Executive Office for Immigration Review

8 CFR Parts 3 and 236

[INS No. 1855-97; AG Order No. 2152-98]

RIN 1115-AE88

Procedures for the Detention and Release of Criminal Aliens by the Immigration and Naturalization Service and for Custody

Redeterminations by the Executive Office for Immigration Review

AGENCY: Immigration and Naturalization Service, and Executive Office for Immigration Review, Justice.

ACTION: Final rule.

SUMMARY: This rule amends the regulations of the Immigration and Naturalization Service (Service) and the Executive Office for Immigration Review (EOIR), establishing a regulatory framework for the detention of criminal aliens pursuant to the Transition Period Custody Rules (TPCR) set forth in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This rule is necessary to provide uniform guidance to Service officers and immigration judges (IJs) regarding application of the TPCR.

DATES: This rule is effective June 18, 1998.

FOR FURTHER INFORMATION CONTACT: Brad Glassman, Office of the General Counsel, Immigration and Naturalization Service, 425 I Street NW., Room 6100, Washington, DC 20536, telephone (202) 305-0846.

SUPPLEMENTARY INFORMATION:

Background

On October 9, 1996, the Commissioner of the Immigration and Naturalization Service (Service) notified Congress that the Service lacks the detention space and personnel necessary to comply with the mandatory detention provisions of section 440(c) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, 110 Stat. 1214, and section 236(c) of the Immigration and Nationality Act (INA or Act), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRI RA), Pub. L. 104-208, Div. C, section 303(a), 110 Stat. 3009. By operation of law, see IIRIRA section 303(b)(2), the notification resulted in the temporary replacement of these mandatory detention provisions with the Transition Period Custody Rules (TPCR) set forth in IIRIRA section 303(b)(3). A second notification on September 29, 1997, continued the TPCR in effect for an additional year. The TPCR provide for the detention, inter alia , of specified classes of criminal aliens, and allow some of these aliens to be considered for release in the exercise of the Attorney General's discretion.

The Department of Justice (Department) published a proposed rule to implement the TPCR on September 15, 1997, at 62 FR 48183, with written comments due by October 15, 1997. The proposed rule established three categories of criminal aliens for purposes of detention and release under the TPCR. Aliens in the first category were subject to mandatory detention. Aliens in the second category were subject to mandatory detention except in the case of lawful permanent resident aliens and certain other lawfully admit ted aliens who had remained free of crimes, immigration violations, and the like for a 10-year period. Aliens excepted from the second category and aliens in the third category could be considered for release on a case-by-case basis, in the exercise of discretion.

The proposed rule also established procedures for the Service to obtain a stay of an immigration judge's custody decision in conjunction with an appeal of the custody decision to the Board of Immigration Appeals (Board). In providing explicit authority for the Service to seek an emergency stay, the rule codified a long-standing administrative practice. The rule departed from present practice, however, in providing for an automatic stay in certain criminal cases where the Service appeals the redetermination of a bond set at $10,000 or more (including an outright denial of bond).

The Department has received a number of public comments recommending modifications of the proposed rule. Because several of the comments overlap or endorse the submissions of other commenters, the following discussion will address the comments by topic rather than by response to each comment individually.

General Rules Versus Ad Hoc Adjudication

Several commenters objected to the establishment of categories of non-releasable deportable and inadmissible criminal aliens based on factors strongly indicating a poor bail risk. The commenters expressed a preference for case-by-case custody determinations in all situations, criticizing categorical rules as burdensome with respect to the Service's detention resources, less flexible and nuanced than case-by-case consideration, invasive of immigration judges' bond redetermination authority, contrary to the T PCR, and, in the case of permanent resident aliens, unconstitutional.

The Department has carefully considered the views of the commenters, and will retain the basic structure of the proposed rule, with certain modifications. This rule implements an important component of a congressional and executive policy to ensure the swift and certain removal of aliens who commit serious crimes in this country. The success of this policy, in the estimation of both Congress and the Department, significantly affects the well being of the United States and its law-abiding citizen, residents, and visitors.

Congress' near-complete power over immigration transcends the specific grant of authority in Article 1, Section 8 of the Constitution, and derives from the "inherent and inalienable right of every sovereign and independent nation" to determine which aliens it will admit or expel. Fong Yue Ting v. United States , 149 U.S. 698, 711 (1893); see also, e.g ,. Landon v. Plasencia , 459 U.S. 21, 32 (1982) ("[T]he power to admit or exclude aliens is a sovereign prerogative,"); Kleindienst v. Mandel , 408 U.S. 753, 766-67 (1972) ("'Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government.'" (quoting Galvan v. Press , 347 U.S. 522, 531 (1954)); Flemming v. Nestor , 363 U.S. 603, 616 (1960) (describing "power of Congress to fix the conditions under which aliens are to be permitted to enter and remain in this country" as "plenary"); Harisiades v. Shaughnessy , 342 U.S. 580, 587-88 (1952) (Power to remove even permanent resident aliens is "confirmed by international law as a power inherent in every sovereign state."); Mahler v. Eby , 264 U.S. 32, 39 (1924) (describing as "unquestioned" the power of Congress "to rid the country of persons who have shown by their career that their continued presence here would not make for the safety or welfare of society"). More than a century ago, the Supreme Court upheld detention

as part of the means necessary to give effect to the provisions for the exclusion of expulsion of aliens * * *. Proceedings to exclude or expel would be in vain if those accused could not be held in custody pending the inquiry into their true character and while arrangements were being made for their deportation.

Wong Wing v. United States , 163 U.S. 228, 235 (1896); see also Carlson v. Landon , 342 U.S. 524, 538 (1952) ("Detention is necessarily a part of this deportation procedure. Otherwise aliens arrested for deportation would have opportunities to hurt the United States during the pendency of deportation proceedings."). It is therefore "axiomatic" that an alien's interest in being at liberty during the course of immigration proceedings is "narrow" and "circumscribed by considerations of the national interest." Doherty v. Thornburgh , 943 F.2d 204, 208, 208, 209 (2d Cir. 1991), cert. dismissed 503 U.S. 901 (1992),

The detention of removable criminal aliens during proceedings serves two essential purposes: Ensuring removal by preventing the alien from fleeing, and protecting the community from further criminal acts or other dangers. The stakes for the Government are considerable in this context. The apprehension of a criminal alien who absconds during the removal process is expensive, time-consuming, and, in many cases, dangerous both to Government personnel and to civilians. Failure to recover such an alien for remov al means not only scores of hours wasted by immigration judges, Service attorneys, interpreters, immigration officers, and clerical and support staff, but also a fugitive alien criminal beyond the control of lawful process and at large in the community. Released aliens who abscond calculate-correctly-"that the INS lacks the resources to conduct a dragnet." Ofosu v. McElroy , 98 F.3d 694, 702 (2d Cir. 1996). As further discussed below, abscondment by criminal aliens subject to removal has become disturbingly frequent.

Beginning with the Anti-Drug Abuse Act of 1988 (ADAA), Pub. L. 100-690, 102 Stat. 4181, continuing with the Immigration Act of 1990 (Immact), Pub. L. 101-649, 104 Stat. 4978, and culminating with the recent enactment of AEDPA and IIRIRA, successive legislation over the past decade has mandated increasingly severe immigration consequences for aliens convicted of serious crimes, and has imposed restrictive detention conditions on such aliens during removal proceedings. Congress' concern with criminal aliens w ho flee or commit additional crimes is plainly evident in the detention provisions of the ADAA and Immact, as amended by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. 102-232, 105 Stat. 1733 See 8 U.S.C. section 1252 (a)(2) (1995) (mandating detention of aliens convicted of an aggravated felony except upon demonstration of lawful entry and lack of threat to community and flight risk); 8 U.S.C. section 1226(e) (1995) (mandating detention of aliens convicted of an aggravated felony who seek admission to the United States except when home country refuses to repatriate and alien demonstrates lack of threat to community). The legislative history of former section 242(a)(2) and IIRIRA section 303 also reflects these concerns. See S. Rep. No. 48, 104th Cong., 1st Sess., 1995 WL 170285 (Apr. 7, 1995); 141 Cong. Rec. S7803, 7823 (daily ed. June 7, 1995) (statement of Senator Abraham); see also Davis v. Weiss , 749 F. Supp. 47, 50 (D. Conn. 1990); Morrobel v. Thornburgh , 744 F. Supp. 725, 728 (E.D. Va. 1990) (Legislators reasonably deemed mandatory detention necessary because aggravated felons "are likely to abscond before the completion of the deportation proceedings.").

These concerns motivated some of the basic procedural reforms embodied in IIRIRA. See, e.g. , INA section 236(a)(2) (raising minimum bond during proceedings from $500 to $1,500); 236(c) (mandating detention of criminals during proceedings); section 236(e) (barring judicial review of discretionary custody determinations); 241(a) (requiring detention of aliens during 90-day "removal period" after final order). Congress has specifically addressed the detention of removable criminal aliens by greatly increasing Service detention resources over several years, and by expressing in IIRIRA a clear intenti on that aliens removable from the United States on the basis of a crime be detained, except in very limited circumstances, see INA section 236(c)(1), (2) (permanent provisions mandating detention during proceedings of most aliens removable on criminal grounds); section 241(a)(2) ("Under no circumstances during the removal period shall the Attorney General release an alien who has been found" removable on criminal or terrorist grounds.). Discretion remains under the statute only by virtue of transitional rul es enacted to ease the burden of mandatory detention on the Service's detention resources.

Indeed, section 236(c) of IIRIRA would now bar the release during proceedings of most aliens removable on criminal grounds, were it not for the Service's notification to Congress invoking the TPCR. Having invoked the TPCR on the basis of insufficient detention resources, the Department remains responsible for exercising its temporary discretion in conformity with congressional intent. In the Department's judgment, a carefully crafted regime incorporating both case-by-case discretion and, where appropriate, clear, uniform rules for detention by category, best achieves that goal.

The Department has retained the structure of the proposed rule, including its mandatory detention categories, despite the commenters' concern that the rule encroaches on the authority of immigration judges and lacks the flexibility of a universal case-by-case approach. The final rule preserves a wide area of discretion for Service and EOIR decision makers, but defines limited situations in which a criminal alien's conduct warrants a per se rule of detention. Case-by- case discretion remains overwhelmingly t he general rule. Per se rules are drawn narrowly, and only where, in the carefully considered judgment of the Attorney General, the danger of an erroneous release is sufficiently grave, and the danger of unwarranted detention during proceedings sufficiently minimal, as to tip the balance in favor of such a rule. See Fook Hong Mak v. INS , 435 F.2d 728, 730 (2d Cir. 1970) (Agency appropriately exercises discretion where it "determines certain conduct to be so inimical to the statutory scheme that all persons who have engaged in it shall be ineligible for favorable consideration, regardless of other factors that otherwise might tend in their favor.").

The Department disagrees with comments suggesting that the TPCR require case-by-case adjudication for all "lawfully admitted" criminal aliens. The TPCR, by their terms, grant discretion to the Attorney General to consider certain categories of criminal aliens for release. It does not specify that that discretion be exercised by adjudication rather than by rulemaking. "It is a well-established principle of administrative law that an agency to whom Congress grants discretion may elect between rulemaking and a d hoc adjudication to carry out its mandate." Yang v. INS , 70 F.3d 932, 936 (9th Cir. 1996) (citing American Hosp. Assoc. v. NLRB , 499 U.S. 606, 611-13 (1991); NLRB v. Bell Aerospace Co. , 416 U.S. 267, 294 (1974)). Agencies may resolve matters of general applicability through the promulgation of rules "even if a statutory scheme requires individualized determination * * * unless Congress has expressed an intent to withhold that authority." American Hosp. , 499 U.S. at 613; see also Fook Hong Mak , 435 F.2d at 731 ("(I)t is fallacious to reason that because Congress prevented the Attorney General from exercising any discretion in favor of those groups[] which Congress had found to have abused the privileges accorded them, it meant to require him to exercise it in favor of everyone else on a case-by-case basis even if experience should convince him of the existence of another group with similar potentialities or actualities of abuse." (emphasis in original)).

Reviewing courts have upheld the Department's rulemaking in this area in light of these principles of administrative law. For example, in Reno v. Flores , 507 U.S. 292 (1993), the Supreme Court upheld a rule categorically precluding the release of detained juveniles not able to have either a legal guardian or one of several listed relatives assume custody. The Court held the rule to be a permissible exercise of the Attorney General's discretion, because it rationally advanced a legitimate governmental objective. Id. at 306. Similarly, in Yang , the Ninth Circuit upheld a rule categorically denying asylum, as a matter of discretion, to aliens "firmly resettled" prior to arrival in the United States. In Fook Hong Mak , the Second Circuit upheld a regulation barring, again in the exercise of the Attorney General's discretion, any alien transiting the United States without a visa from adjusting status under section 245 of the Act. Cf. Anetekhai v. INS , 876 F.2d 1218, 1223 (5th Cir. 1989) (Congress may require all aliens who marry citizens after the institution of deportation proceedings to reside outside United States for 2 years without opportunity to demonstrate bona fides of marriage.)

"There is not doubt that preventing danger to the community is a legitimate regulatory goal." United States v. Salerno , 481 U.S. 739, 747 (1987). Preventing abscondment by removable criminal aliens, and doing so in a way that minimizes waste of the Service's scarce enforcement resources and promotes consistent application of the law, are also legitimate goals. This rule exercises a well-established rulemaking authority of the Attorney General, in an area of "sovereign prerogative, largely within the control of the executive and the legislative, " Landon v. Plasencia , 459 U.S. 21, 34 (1982).

General Rules Versus Ad Hoc Adjudication for Permanent Resident Aliens

Several commenters emphasized the special status of permanent resident aliens. That status entails certain rights with regard to removal proceedings, see Landon v. Plasencia , supra, but does not prohibit Congress or the Attorney General from establishing categories of criminal or terrorist permanent resident aliens whose crimes or conduct evidence a danger to the community or a flight risk sufficiently serious to require detention.

Nevertheless, the Department has long maintained, and continues to maintain, a policy of special care with regard to procedural protections for permanent resident aliens. This rulemaking does not depart from that tradition. Permanent resident aliens retain the full panoply of rights and privileges in removal proceedings. The final rule affords a full discretionary custody determination to nearly all permanent resident aliens during such proceedings, and makes exceptions only in the extreme circumstances spe cified in § 236.1(c)(5).

The circumstances covered by § 236.1(c)(5) of the proposed rule uniformly present compelling indicia of flight risk and danger to the community. First, to be subject to the TPCR, an alien must have a serious criminal conviction constituting a basis for removal from the United States. (Indeed, not all crimes constituting grounds for removal trigger the TPCR.) Second, in order to be subject to mandatory detention, a permanent resident alien must either (1) have escaped or attempted to escape from a prison or other lawful government custody; (2) have fled at high speed from an immigration checkpoint; or (3) have been convicted of one of the crimes specified in § 236.1(c)(5)(i)(A). The specified crimes include murder, rape, sexual abuse of a minor, trafficking in firearms, explosives, or destructive devices, certain other explosive materials offenses, kidnaping, extortion, child pornography, selling or buying of children, slavery, treason, sabotage, disclosing classified information, and revealing the identity of undercover agents.

Further, to address the concerns raised by commenters concerning procedural protections for permanent residents, the Department has also modified the final rule in three ways as it applies to permanent residents. First, the final rule requires that an alien, including one admitted as a nonimmigrant, receive a sentence (or sentences in the aggregate) of at least 2 years, not including portions suspended, in order to trigger the requirements of § 236.1(c)(5). Permanent residents with less than the required se ntence of 2 years will be eligible for an individualized custody determination; other lawfully admitted aliens with less than the required sentence will be considered under § 236.1(c)(4). Second, the final rule will exempt from § 236.1(c)(5) permanent residents who have remained free of convictions, immigration violations, and the like for an uninterrupted period of 15 years prior to the institution of proceedings (not including any periods of incarceration or detention).

Finally, the final rule has been revised to provide an individualized custody determination to former permanent residents subject to the TPCR who have lost that status through a final order of deportation under former section 242 of the Act, and have been in Service custody pursuant to the final order for six months. The district director's decision may be appealed to the Board of Immigration Appeals under existing procedures. It is expected that releases in this category of final-order criminal cases will be rare, but the authority has been incorporated for use in compelling circumstances. Similar authority exists under section 241 of the Act for removal cases commenced on or after April 1, 1997. These three modifications will further ensure adequate procedural safeguards for the custody of permanent resident aliens (and aliens challenging the loss of such status through the prescribed jurisdictional channels).

It is only within the extremely narrow range of offenses specified in the proposed rule, further narrowed by the aforementioned modifications, that the final rule requires detention of permanent resident aliens without discretionary release consideration. The constitutional concerns expressed by the commenters focus, therefore, on this very limited class of cases, and generally rest on the claim that due process prohibits Congress and the Attorney General from mandating the detention of any class of permanent resident aliens, regardless of the character of their criminal or terrorist offenses. The Department disagrees with this position.

The Supreme Court has affirmed much broader administrative authority over detention of convicted criminals even in areas of law not informed by the "plenary power" doctrine. Individuals convicted of a crime have necessarily received all the process required by the criminal justice system; they have been convicted on the basis of either a voluntary guilty plea or a finding of guilt beyond a reasonable doubt, with opportunity for appeal and collateral habeas corpus challenge. In this context, the Supreme Cour t has upheld a general congressional delegation of sentencing authority to an independent agency within the Judicial Branch. Mistretta v. United States , 488 U.S. 361 (1989). If it is permissible for an agency to subject a U.S. citizen, upon conviction, to a mandatory sentence without individualized discretionary consideration, it would seem even more clearly permissible for the Attorney General to require custody of a narrow class of convicted criminal aliens without individualized discretionary consideration during the ensuing proceedings to effect their removal. Cf . Jone v. United States , 463 U.S. 354, 364-65 (1983) ("The fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness.") (Approving civil commitment, based on insanity plea in criminal proceeding, for 50 days without individualized hearing). Indeed, the power upheld in Mistretta is far broader than that asserted here, applying to U.S. citizens and criminal defendants, both of whom enjoy extensive constitutional rights and procedural protections beyond those afforded to criminal aliens in civil removal proceedings. See Mathews v. Diaz , 426 U.S. 67, 79-80 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens."); INS v. Lopez-Mendoza , 468 U.S. 1032, 1039-40 (1984) (cataloguing constitutional procedural protections guaranteed to criminal defendants but not to aliens in deportation proceedings).

The doctrine of plenary power bolsters this conclusion. "'For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.'" Flores , 507 U.S. at 305 (quoting Mathews v. Diaz , supra, at 81); accord United States v. Valenzuela-Bernal , 458 U.S. 858, 864 (1982) ("The power to regulate immigration-an attribute of sovereignty essential to the preservation of any nation-has been entrusted by the Constitution to the political branches of the Federal Government."). "'(O)ver no conceivable subject is the legislative power of Congress more complete.'" Flores, 426 U.S. at 305 (quoting Fiallo v. Bell , 430 U.S. 787, 792, (1977); Oceanic Steam Navig. Co. v. Stranahan , 214 U.S. 320, 339 (1909)).

Accordingly, an immigration law is constitutional if it is based upon a "facially legitimate and bona fide reason." Fiallo , 430 U.S. at 794-95; Kleindienst v. Mandel , 408 U.S. 753, 770 (1972); Garcia v. INS , 7 F.3d 1320, 1327 (7th Cir. 1993). "Once a facially legitimate and bona fide reason is found, courts will neither look behind the exercise of discretion, nor test it by balancing its justification against the constitutional interest asserted by those challenging the statute." Campos v. INS , 961 F.2d 309, 316 (1st Cir. 1992) (citing Fiallo , 430 U.S. at 794-95). Courts have applied this deferential test to sustain the constitutionality of one of the TPCR's predecessor mandatory detention statutes as applied to permanent residents, Davis , 749 F. Supp. at 50; Morrobel , 744 F. Supp. at 728, and the Supreme Court has applied a similar test in its most recent case addressing mandatory detention, Flores , 507 U.S. at 306 (upholding juvenile alien detention regulation as "rationally advancing some legitimate governmental purpose").

Congress' plenary power over immigration extends to all non-citizens, including permanent resident aliens. Aliens

[w]hen legally admitted * * * have come at the Nation's invitation, as visitors or permanent residents, to share with us the opportunities and satisfactions of our land * * * . So long, however, as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary power of Congress to expel them under the sovereign right to determine what noncitizens shall be permitted to remain within our borders.

Carlson , 392 U.S. at 534 (upholding immigration detention of permanent resident alien); accord Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206 (1953) (affirming detention of returning permanent resident alien); Harisiades v. Shaughnessy , 342 U.S. 580, 587-88 (1952) ("That aliens remain vulnerable to expulsion after long residence is a practice that bristles with severities. But it is a weapon of defense and reprisal confirmed by international law as a power inherent in every sovereign state. Such is the traditional power of the Nation over the alien [,] and we leave the law on the subject as we find it.").

Carlson v. Landon , 342 U.S. 524 (1952) - "the leading case involving a test of the legality of detention under immigration laws, " Duldulao v. INS , 90 F.3d 396, 400 (9th Cir. 1996) - squarely addresses the detention of permanent resident aliens. The Supreme Court in Carlson upheld the Attorney General's detention of permanent residents under the Internal Security Act based solely on evidence of their Communist Party membership and support, without requiring any individualized inquiry into whether such aliens had ever engaged in specific acts of sabotage or subversion. 342 U.S. at 541. In essence, the Court allowed active membership in the Communist P arty and espousal of its ideology to be used as proxies for an alien's dangerousness. The present rule, by contrast, relies on actual egregious crimes or conduct of convicted criminals as proxies for danger to the community and flight risk. Cf . Morrobel , 744 F. Supp. at 728 ("If there was no abuse of discretion in detaining alien communist in Carlson , it can hardly be improper for Congress, having determined that aliens convicted of aggravated felonies * * * are a danger to society, to direct the Attorney General to detain them pending deportation proceedings."); Davis , 749 F. Supp. at 51 (analogizing mandatory detention of aggravated felons to detention upheld in Carlson).

The Supreme Court has recently applied the principles of Carlson to a regulations mandating immigration detention of certain juveniles by category. Flores v. Reno , 507 U.S. 292 (1993). Flores recognizes the power of Congress and the Attorney General to establish detention rules that single out classes of aliens for differing treatment, without providing for an individualized determination as to whether each member of the class warrants such treatment. When Congress or the Attorney General does so, the only process due is a determination of whether the alien in fact belongs to the class at issue.

Hence, the Court in Flores held that the Service could, without violating procedural or substantive due process, enforce a regulation generally barring the release of juvenile alien detainees, other than those able to have a legal guardian or certain specified close relatives take custody. The Court rejected arguments that the Service had impressibly employed a "blanket presumption" that other custodians were unsuitable, and that the Service must conduct "fully individualized" hearings on their suitability in each case. Id. at 308, 313-14 & n.9. The Service was not required, the Supreme Court stated, to "forswear use of reasonable presumptions and generic rules." Id. at 313. The Service needed only make such individual determinations as were necessary for accurate application of the regulation, such as "is there reason to believe the alien deportable?", "is the alien under 18 years of age?", and does the alien have an available adult relative or legal guardian?" Id. at 313-14.

Like the regulation upheld in Flores , the final rule provides for an individualized hearing on whether an alien in custody actually falls within a category of aliens subject to mandatory detention. In determining or redetermining custody conditions, the district director or IJ necessarily asks such individualized questions as "is this person an alien?", "is there reason to believe that this person was convicted of a crime covered by the TPCR?", and "is there reason to believe that this person falls within a category barred from release under applicable law?" If the district director or IJ resolves these individualized questions affirmatively, and thus ascertains that the alien belongs to a class of convicted criminals barred from release, "(t)he particularization and individuation need go no further than this," id. at 314. Under Flores , the IJ or district director may validly enforce the regulatory policy of detaining those classes of aliens whose release has been determined by Congress or the Attorney General to present unacceptable risks. Cf . Davis , 749 F.Supp. at 52 ("The most effective procedures are those already built into (one of the TPCR's predecessors), namely those procedures which ensure that the alien is rightfully an 'aggravated felon' under the (INA) and is properly subject to mandatory detention.").

Plenary power confers upon Congress the undisputed authority to curtail a criminal permanent resident alien's right to remain in the United States. See, e.g. , Carlson v. Landon , 342 U.S. at 534 ("The basis for the deportation of presently undesirable aliens resident in the United States is not questioned and requires no reexamination."). Congress has exercised this power in AEDPA and IIRIRA by barring permanent residents convicted of an aggravated felony from seeking discretionary relief from removal. The elimination of relief considerably increases flight risk, see, e.g. , Bertrand v. Sava , 684 F.2d 204, 217 n.16 (2d Cir. 1982) ("The fact that the petitioners are unlikely to succeed on their immigration applications * * * suggests that they pose * * * a risk (to abscond) if (released)."), and thus increases the need for detention of aliens barred in this manner from remaining in the United States.

The congressional power to compel removal includes the power to effect removal by the necessary use of detention. "An alien's freedom from detention is only a variation on the alien's claim of an interest in entering the country." Clark v. Smith , 967 F.2d 1329, 1332 (9th Cir. 1992); see also Carlson v. Landon , 342 U.S. at 538; Wong Wing , 163 U.S. at 235; Doherty , 943 F.2d at 212 ("(F)rom the outset of his detention, Doherty has possessed, in effect, the key that unlocks his prison cell * * *. Because deportation was less attractive to him than his present course and because he had availed himself of the statutory mechanisms provided for aliens facing deportation, Doherty is subject to the countervailing measures Congress has enacted to ensure the protection of national interests."). If Congress may bar specified criminal aliens from making discretionary applicatio ns to remain in the United States, it may also bar such criminals from making discretionary applications for release during removal proceedings, especially when detention is a necessary adjunct of the removal process, Carlson v. Landon , supra, and the elimination of relief itself creates overwhelming incentives to abscond, Bertrand v. Sava , supra .

Despite the broad congressional and executive authority recognized and consistently reaffirmed over the past century by the Supreme Court, several district courts have held mandatory detention statutes unconstitutional under the Due Process Clause of the Fifth Amendment. See, e.g. , St. John v. McElroy , 917 F. Supp. 243, 247 (S.D.N.Y. 1996). In the Department's view, these district courts have misapprehended the law of immigration detention, and have failed to defer to Congress and the Executive in matters of immigration as required by the Supreme Court's teachings.

Some of the district court cases err in applying to immigration detention the standard for pre-trial criminal bail determinations articulated in United States v. Salerno , 481 U.S. 739, 747-51 (1987). See Kellman v. District Director , 750 F. Supp. 625, 627 (S.D.N.Y. 1990); Leader v. Blackman , 744 F. Supp. 500, 507 (S.D.N.Y. 1990). The Supreme Court, however, has rejected the extension of Salerno in a post-conviction context. Hilton v. Braunskill , 481 U.S. 770, 779 (1987) ("[A] successful (state) habeas petitioner is in a considerably less favorable position than a pretrial arrestee, such as the respondent in Salerno , to challenge his continued detention pending

appeal. Unlike a pretrial arrestee, a state habeas petitioner has been adjudged guilty beyond a reasonable doubt * * *."). Similarly, in Doherty , the Second Circuit determined that "a different focus (from criminal bail standards) must govern the determination of constitutionality of pre-deportation detention." Doherty , 943 F.2d at 210 (citing Dor. v. District Director , INS, 891 F.2d 997, 1003 (2d Cir. 1989)). In reviewing the constitutionality of an 8-year detention, Doherty inquired only into the presence of any bad faith or invidious purpose in the Service's decision-making process. 943 F.2d at 210-11.

St. John and the other district court cases invalidating mandatory detention rules as applied to permanent residents generally decline to apply the "facially legitimate, bona fied reason" standard, and instead engage in a balancing of individual and governmental interests. The balancing test set forth in Mathews v. Eldridge , 424 U.S. 319 (1976), does not, however, apply in the context of immigration detention. The Ninth Circuit had applied the Mathews test in this manner in Flores v. Meese , 942 F.2d 1352, 1364 (9th Cir. 1991). The Supreme Court reversed, and applied a different test, requiring only that the challenged regulation "meet the (unexacting) standard of rationally advancing some legitimate governmental purpose." Flores , 507 U.S. at 306.

Even if a balancing of interests were permitted-under governing case law, it is not-the paramount interest of the United States in removing criminal aliens and protecting its citizens form crime would outweigh any liberty interest that an alien removable from the United States on criminal grounds could claim. "[A]n alien's right to be at liberty during the course of deportation proceedings is circumscribed by considerations of the national interest," and is consequently "narrow." Doherty , 943 F.2d at 208, 209; see also Flores 507 U.S. at 305 ("If we harbored any doubts as to the constitutionality of institutional custody over unaccompanied juveniles, they would surely be eliminated as to those juveniles * * * who are aliens.").

Moreover, because the TPCR apply in removal cases only during proceedings, and because the Board of Immigration Appeals expedites detained cases on its docket, the length of an alien's detention under this rule is necessarily finite. Criminal aliens with an enforceable final order of removal must be detained and removed within 90 days; if not removed within that period, such aliens become eligible for discretionary release consideration. See INA section 241(a). Criminal aliens ordered deported or removed wh ose home countries will not accept repatriation may be considered for release at any time in the discretion of the Service, and permanent residents who lose that status through a final order of deportation may generally be considered for release after six months. These provisions eliminate the possibility of indefinite detention without discretionary review, and thus avoid violation of any protected liberty interest.

In contrast to the "narrow" liberty interest of aliens removable on criminal grounds, "[t]he government's interest in efficient administration of the immigration laws at the border * * * is weighty. Further, it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature." Landon v. Plasencia , 459 U.S. 21, 34 (1982). The Government's interest in maintaining the procedures embodied in the final rule is also "weighty." The detention requirements for permanent residents single out aliens with egregious indicia of flight risk and danger to the community. The risk of recidivism and flight upon release is unquestionably great for these aliens; the risk of erroneous detention is correspondingly low. The provisions of the final rule reflect a legislative and executive judgment that, for the limited cla sses of criminal permanent resident aliens specified in the rule, discretionary release poses unacceptable risks.

Individualized consideration of discretionary release for these groups would also impose considerable administrative burdens on the Government. In many instances, bond hearings become an arena of protracted and costly collateral litigation in their own right, beyond and apart from the extensive administrative processes for determining removability, and the criminal justice process. Although the primary purposes of the final rule are to protect the public and to ensure the departure of aliens removable on cr iminal grounds, administrative costs are a legitimate consideration in determining the best means to achieve these objectives. Even under the balancing analysis prohibited by Flores , therefore, these governmental interests would easily outweigh the "narrow" interest of an alien removable on criminal grounds in making applications to remain at large during proceedings to effect removal.

The elemental error of Kellman , St. John , and the cases that follow them lies in their rejection of the Supreme Court's constitutional deference to Congress and the Executive in matters of immigration. The Kellman court acknowledges a "significant degree" of deference owed to Congress' substantive decisions regarding deportability, but asserts that "the same deference is not mandated when examining the way in which that deportation is accomplished." Kellman , 750 F. Supp. at 627. That assertion finds neither support nor solicitude in the jurisprudence of the Supreme Court. See, e.g. , Flores , supra; Carlson v. Landon , supra. The respondents in Flores attempted this sort of distinction, urging the Supreme Court to require individualized discretionary custody determinations, despite the plenary power doctrine, as a matter of "procedural due process." 507 U.S. at 308. The Court's response was unequivocal: "This is just the 'substantive due process' argument recast in 'procedural due process' terms, and we reject it for the same reasons." Id .

In the Department's view, the final rule takes the least restrictive approach to the detention of permanent residents consistent with the dictates of public safety and the important public policy of removing aliens who have committed serious crimes in this country. The Department is confident that the final rule provides adequate procedural protections for the custody of permanent resident aliens, and is aware of no other means of ensuring the requisite level of protection for the public. This rule draws up on the Department's experience over time in administering the immigration laws, incorporates its careful consideration of the individual and public interests at stake, and reflects its understanding of the will of Congress. In addressing these concerns, the rule provides needed reform of current procedures for the detention of aliens, including permanent resident aliens, who have become subject to removal as a result of crimes committed in this country.