The Meaning of "Lawfully Admitted"

For aliens in removal proceedings, the proposed rule construed the TPCR's term "lawfully admitted" by reference to the definition of "admitted" in section 101(a)(13) of the Act. Accordingly, the proposed rule treated returning permanent resident "applicants for admission" as not "lawfully admitted" under the TPCR, and hence not eligible to be considered for release. Several commenters urged that the Department reconsider this interpretation to recognize an exception for permanent residents. Permanent reside nts, even those returning from abroad, remain "lawfully admitted for permanent residence" until termination of that status by a final administrative order. 8 CFR 1.1(p). One commenter argued, therefore, as follows:

New INA § 101(a)(13) provides that under certain limited circumstances a lawful permanent resident can be deemed to be "seeking admission into the United States." But this individual nevertheless remains a lawful permanent resident who is "lawfully admitted" for purposes of discretionary release from detention under the TPCR. In short, the phrase "lawfully admitted" does not necessarily mean "is not presently seeking admission." Indeed, the language of § 101(a)(13)-the very provision the INS relies on to ju stify its new interpretation (in the proposed rule)-keeps these concepts distinct.

The Department has carefully considered this and other similar comments, and will revise its interpretation in the final rule much along the lines recommended by the commenters.

The final rule will consider an "arriving alien" in removal proceedings to be "lawfully admitted" for purposes of the TPCR if (and only if) the alien remains in status as a permanent resident, conditional permanent resident, or temporary resident. Accordingly, such aliens may be considered for parole in the discretion of the Service.

The TPCR's term "lawfully admitted" will apply consistently in deportation and removal proceedings. In general, an alien who remains in status as a permanent resident, conditional permanent resident, or temporary resident will be considered "lawfully admitted" for purposes of the TPCR. Other aliens will be considered "lawfully admitted" only if they last entered lawfully (and are not currently applicants for admission).

This interpretation of the term "lawfully admitted" is not intended to extend beyond the limited context of the TPCR. Moreover, under this final rule, a "lawfully admitted" alien will in many cases remain an "applicant for admission." For example, as the Board recently held in Matter of Collado , Int. Dec. 3333 (BIA 1997), an arriving permanent resident alien who has committed an offense described in section 212(a)(2) of the Act remains an "applicant for admission" unless previously granted relief under sections 212(h) or 240A(a) of the Act. The same will be true of an arriving permanent resident alien who falls within the other exceptions specified in section 101(a)(13)(C) (i)-(vi) of the Act. Although "lawfully admitted" for purposes of the TPCR during proceedings, such an alien remains an "appl icant for admission" and an "arriving alien," charged under section 212 of the Act, and subject solely to the parole authority of the Service.

Bond Jurisdiction of Immigration Judges

One commenter asserted that the TPCR require the Attorney General to grant immigration judges bond authority over arriving aliens in removal proceedings and over aliens in exclusion proceedings. As explained in the notice of proposed rulemaking, the TPCR do not, in the Department's view, apply in exclusion proceedings, because they replace detention provisions applicable in removal and deportation proceedings, but do not replace the analogous provision applicable in exclusion proceedings. As regards arrivin g aliens in removal proceedings, the TPCR simply confer discretion upon the Attorney General, leaving it to the Department to determine which subordinate officials will exercise custody authority. The Department has determined that parole authority will remain exclusively with the Service, as in the past. See generally Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206 (1953) (affirming Service's decision to detain returning permanent resident alien); Marcello v. Bonds , 349 U.S. 302 (1955) (rejecting claim that custody decision by Service officer violates Due Process where Service initiates and prosecutes proceeding).

Automatic Stay of Certain Criminal Custody Redeterminations To Preserve Status Quo for Appeal

The proposed rule included a provision allowing the Service to request an emergency stay of an immigration judge's order redetermining custody conditions when the Service appeals the custody decision to the Board of Immigration Appeals. The rule also provided for an automatic stay of the immigration judge's custody redetermination where the alien is subject to the TPCR, section 440(c) of AEDPA, or section 236(c) of the Act, and the district director has set a bond of $10,000 or more (including outright deni al of bond). Both of these provisions were included as permanent revisions, without regard to the expiration of the TPCR.

Several commenters objected to the automatic stay provision, arguing that it encroaches on the authority of immigration judges, incorporates a criterion (initial bond amount) not adequately indicative of bail risk, and encourages district directors to set high bonds to fortify their custody decisions against reversal. The Department has carefully considered these comments, and will retain the automatic stay provision in the final rule without modification.

Even accepting that initial bond amounts are an imperfect measure of bail risk, the automatic stay does not trigger in all cases meeting the $10,000 threshold. Rather, the $10,000 threshold and the requirement of a serious criminal offense provide the basis for a considered determination by the Service to seek an automatic stay in aid of a custody appeal. Custody appeals are themselves unusual, undertaken only in compelling cases, and subject to review by responsible senior officials within the Service. It is expected that such appeals will remain exceptional, and that Service district directors will continue to set custody conditions according to their best assessment of the bail risk presented in each case.

The interests served by the automatic stay are considerable, even if the provision only occasionally comes into play. A custody decision that allows for immediate release is effectively final if, as the Service appeal would necessarily assert, the alien turns out to be a serious flight risk or a danger to the community. In such a case, the appeal provides little benefit to the agencies exerting efforts to effect removal, and less still to the community receiving the dangerous or absconding alien criminal ba ck into its midst. The automatic stay provides a safeguard to the public, preserving the status quo briefly while the Service seeks expedited appellate review of the immigration judge's custody decision. The Board of Immigration Appeals retains full authority to accept or reject the Service's contentions on appeal.

Treatment of Criminal Aliens Not Eligible for Relief from Removal

Several commenters objected to the provision in § 236.1(c)(5)(iv) of the proposed rule requiring detention of criminal aliens under the TPCR who do not wish to pursue relief from removal, or who lack eligibility for such relief. The provision reflects the consideration that such an alien has little incentive to appear for proceedings, and hence almost always poses a serious bail risk. Nevertheless, the Department has reconsidered the inclusion of this provision in § 236.1(c)(5), and will include it instead in § 236.1(c)(4) of the final rule. Hence, permanent residents and aliens with old convictions and no subsequent indicia of bail risk will be eligible to be considered for release even where they lack or decline to pursue options for relief from removal. The Department would expect, however, only the most sparing use of this discretionary authority.

Two commenters objected that bond proceedings during the early stages of the removal process provide a poor forum to assess eligibility for relief. The Department understands this concern, and does not anticipate a conclusive showing of eligibility by the alien at this stage of proceedings. Rather, the rule reflects the practical reality that occasions do arise when plainly no relief exists or the alien does not wish to pursue relief. In those situations, discretionary release of a criminal alien is general ly inappropriate.

Meaning of "when the alien is released"

One commenter asserted that the TPCR apply only to criminal aliens released directly from incarceration into Service custody. The Department has considered this comment, and rejects it for the reasons stated by the Board of Immigration Appeals in Matter of Noble , Int. Dec. 3301 (BIA 1997).

Limited Appearances in Bond Proceedings

One commenter requested that the final rule incorporate new provisions authorizing limited attorney appearances in bond proceedings, i.e., without obligation to represent the alien in removal proceedings. The subject matter of this comment concerns the terms of attorney representation and exceeds the substantive scope of this rulemaking. The Department remains open, however, to working with interested individuals and organizations to refine and improve its regulations in this and other areas within its auth ority.

Technical and Conforming Amendments

The final rule corrects 8 CFR 3.6(a) to eliminate an outdated internal cross-reference, and corrects § 3.6(a) and § 236.1(d)(4) to conform with the final rule's provisions for stays of custody redeterminations by immigration judges. The final rule also clarifies the proposed § 236.1(c)(4) by changing the placement of language excepting permanent resident aliens from the detention requirements of that paragraph.

Effect on Detention Resources

The Department has taken into consideration the effect of the final rule on Service detention resources, and expects a management impact.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities because it affects individual aliens, not small entities.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12866

This rule is considered by the Department of Justice to be a "significant regulatory action" under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget for review.

Executive Order 12612

The regulation adopted herein will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

List of Subjects

8 CFR Part 3

Administrative practice and procedure, Immigration, Organization and functions (Government agencies).

8 CFR Part 236

Administrative practice and procedure, Aliens, Immigration.

Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows:

PART 3-EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

1. The authority citation for part 3 is revised to read as follows:

Authority : 5 U.S.C. 301; 8 U.S.C. 1103, 1226, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953 Comp., p. 1002; sec. 303(b)(3) of Pub. L. 104-208, Div. C.

§ 3.6 [Amended]

2. In § 3.6, paragraph (a) is amended by revising the reference to "242.2(d) of this chapter" to read "236.1 of this chapter, § 3.19(i),".

3. In § 3.19, paragraph (h) and (i) are added to read as follows: