Review of Custody Determinations, 57873-57885 [E6-16106]

Agencies

• Department of Justice

[Federal Register Volume 71, Number 190 (Monday, October 2, 2006)]
[Rules and Regulations]
[Pages 57873-57885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-16106]


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DEPARTMENT OF JUSTICE

8 CFR Part 1003

[EOIR Docket No. 143F; AG Order No. 2838-2006]
RIN 1125-AA47


Review of Custody Determinations

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Final rule.

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SUMMARY: This rule adopts, with changes, an interim rule published in 
the Federal Register on October 31, 2001, by the Department of Justice, 
pertaining to the review of custody decisions by the Executive Office 
for Immigration Review (EOIR) with respect to aliens being detained by 
the Immigration and Naturalization Service (INS), now the Department of 
Homeland Security (DHS). This rule retains the existing regulatory 
provision for DHS to invoke a temporary automatic stay of an 
immigration judge's decision ordering an alien's release in any case in 
which a DHS official has ordered that the alien be held without bond or 
has set a bond of $10,000 or more, in order to maintain the status quo 
while DHS seeks expedited review of the custody order by the Board of 
Immigration Appeals (Board) or the Attorney General. However, this rule 
clarifies the basis on which DHS may invoke the automatic stay 
provision, and limits the duration of the automatic stay.

DATES: This final rule is effective November 1, 2006.

FOR FURTHER INFORMATION CONTACT: MaryBeth Keller, General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:

Introduction

    On October 31, 2001, the Attorney General published an interim rule 
to amend the regulations relating to review of custody determinations 
by immigration judges. The interim rule expanded a preexisting 
provision first adopted in 1998 for a temporary automatic stay of an 
immigration judge's decision ordering the release of an alien in 
certain cases where the INS had determined that no conditions of 
release were appropriate for an alien or had set an initial bond of 
$10,000 or more. 66 FR 54909 (Oct. 31, 2001). The purpose of the 2001 
interim rule was to provide a means for the INS to maintain the status 
quo in those cases where it chose to invoke the automatic stay while it 
was seeking an expedited review of the custody order by the Board. The 
2001 interim rule also provided for a temporary automatic stay in those 
cases where the Commissioner of INS, within five days of the Board's 
decision, refers a custody decision by the Board to the Attorney 
General for review.
    The Department explained when the interim rule was published that 
``This stay is a limited measure and is limited in time--it only 
applies where the Service determines that it is necessary to invoke the 
special stay procedure pending appeal, and the stay only remains in 
place until the Board has had the opportunity to consider the matter.'' 
66 FR at 54910. The Department at that time also explained that it was 
merely

[[Page 57874]]

building on the approach of the preexisting automatic stay rule, citing 
the Board's decision in Matter of Joseph, 22 I&N Dec. 660 (BIA 1999). 
In Matter of Joseph, which addressed the 1998 version of the automatic 
stay rule, the Board observed that:

    The automatic stay provision is intended as a safeguard for the 
public, as well as a measure to enhance agencies' ability to effect 
removal should that be the ultimate final order in a given case. It 
``preserv[es] 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.''

    Id. at 670.

    In connection with the provision for a temporary stay of a decision 
referred to the Attorney General by the Commissioner, the Department 
explained in 2001 (66 FR at 54910):

    This change in Sec.  3.19 makes explicit, in the context of bond 
appeals, the general principle that a ``decision of the Board is not 
final while pending review before the Attorney General on 
certification.'' Matter of Farias, 21 I&N Dec. 269, 282 (BIA 1996; 
A.G. 1997). This provision for an automatic stay will avoid the 
necessity of having to decide whether to order a stay on extremely 
short notice with only the most summary presentation of the issues.

    After the adoption of the interim rule, Congress enacted the 
Homeland Security Act (HSA), which abolished the INS and transferred 
its functions to DHS. Pub. L. 107-296, tit. IV, subtits. D, E, F, 116 
Stat. 2135, 2192 (Nov. 25, 2002), as amended (codified primarily at 6 
U.S.C. 101 et seq.). The HSA, however, retained the functions of EOIR 
(including the immigration judges and the Board) within the Department 
of Justice, under the direction of the Attorney General. HSA, tit. XI, 
116 Stat. at 2273. The transfer of the former INS functions to DHS took 
effect on March 1, 2003.
    In order to reflect the division of authority under the HSA, it was 
necessary for the Attorney General to promulgate regulations pertaining 
to EOIR separate from the regulations of the former INS that are 
codified in 8 CFR chapter I. Accordingly, on February 28, 2003, the 
Attorney General transferred or duplicated the regulations related to 
EOIR and certain other functions that the Attorney General retained 
under the HSA from 8 CFR Chapter I into a new 8 CFR Chapter V and into 
28 CFR. 68 FR 9824 (Feb. 28, 2003); 68 FR 10349 (March 5, 2003).
    As a result of these changes, the automatic stay rule, previously 
codified at 8 CFR 3.19(i)(2), is now found at 8 CFR 1003.19(i)(2). The 
authority to invoke the automatic stay of a decision of an immigration 
judge pending an expedited appeal to the Board is now vested in DHS. 
Moreover, the authority to certify a Board decision to the Attorney 
General for review is now vested in the Secretary of Homeland Security, 
or in senior DHS officials designated by the Secretary with the 
concurrence of the Attorney General. See 8 CFR 1003.1(h)(1)(iii); 
Matter of D-J-, 23 I&N Dec. 572, 573 & n.1 (A.G. 2003).
    More recently, Congress enacted the REAL ID Act of 2005, Pub. L. 
No. 109-13, Div. B, 119 Stat. 231 (May 11, 2005). Among other things, 
this law eliminated the jurisdiction of the Federal district courts to 
review challenges to removal orders through habeas corpus proceedings, 
and transferred such habeas petitions then pending in district courts 
to the courts of appeals, to be treated as petitions for review of the 
removal order. The REAL ID Act, however, does not preclude habeas 
corpus review of challenges to detention that are independent of 
challenges to removal orders. See id.; see also, e.g., Hernandez v. 
Gonzales, 424 F.3d 42, 42 (1st Cir. 2005) (mem. & order).

Changes Made by This Final Rule

    This final rule adopts the interim rule in final form with several 
changes, in light of the public comments and the Department's 
experience in adjudicating cases that are subject to the automatic stay 
rule. These changes are explained here and are further discussed below 
in the responses to the public comments.
    First, in order to allay possible concerns that in some case the 
automatic stay might be invoked by low-level employees of DHS without 
supervisory review, or might be invoked without an adequate factual or 
legal basis, this rule makes two changes in the process for invoking 
the automatic stay. The final rule provides that the decision to file 
the Form EOIR-43 (which must be done within one business day of the 
immigration judge's custody decision) will be subject to the discretion 
of the Secretary. Under the provisions of the automatic stay rule which 
are not changed by this final rule, the automatic stay will lapse 10 
business days after the issuance of the immigration judge's decision 
unless DHS files within that time a notice of appeal with the Board 
presenting DHS's arguments for reversal or modification of the 
immigration judge's custody decision. This rule adds a new requirement 
that, in order to preserve the automatic stay, a senior legal official 
of DHS must certify that the official has approved the filing of the 
notice of appeal to the Board and that there is factual and legal 
support justifying the continued detention of the alien.
    Second, the final rule provides that the automatic stay will lapse 
90 days after the filing of the notice of appeal. DHS, however, may 
seek a discretionary stay under the existing provisions of 8 CFR 
1003.19(i)(1) if the Board has not decided the appeal by the time the 
automatic stay is expiring. The rule makes clear that DHS may submit a 
motion for discretionary stay at any time after the filing of its 
notice of appeal of the custody decision, even well in advance of the 
90-day deadline, and can incorporate by reference the arguments in its 
custody brief in favor of continued detention of the alien, as provided 
in section 236 of the INA (8 U.S.C. 1226), during the pendency of the 
removal proceedings against the alien.\1\
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    \1\ According to EOIR statistics, the immigration judges 
conducted over 86,000 removal proceedings during Fiscal Year 2004 
involving aliens who were detained during the pendency of the 
removal proceedings.
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    The 90-day duration for the automatic stay in bond cases should not 
be confused with the specific deadlines in the existing rules governing 
the timeliness of the Board's decisions. Under 8 CFR 1003.1(e)(8), the 
time for the Board's disposition of appeals is measured from the time 
the case is ready for adjudication on appeal--that is, the 90-day 
period for adjudication of single Board member cases begins only after 
the preparation of the record (including transcripts) and the 
completion of briefing by the parties. Section 1003.1(e)(8) directs the 
Board to issue decisions as soon as practicable, with a priority for 
cases or custody appeals involving detained aliens, but does not set a 
specific shorter period of time for such priority cases.
    In contrast to Sec.  1003.1(e)(8), this final rule measures the 90-
day duration of the automatic stay from the date that the notice of 
appeal is filed. That is a short time frame for action by the Board 
since it does not include an additional allowance of time for 
preparation of the record of proceedings and the 21-day period for the 
filing of simultaneous briefs in appeals involving detained aliens. See 
8 CFR 1003.5(a), 1003.3(c)(1). In the past, the Board has been able to 
issue a decision within a 90-day time frame in most automatic stay 
cases, and the Department expects that the Board will continue to be 
able to do so in the future.
    The Department recognizes, however, that case processing delays may 
occur that affect preparation of the record and ultimately the 
timeliness of the Board's

[[Page 57875]]

decision. Such delays can be both internal to the process of preparing 
a case for adjudication or caused externally by the parties. The 
Department is adding to the rule several new provisions that should 
assist in addressing procedural delays that may adversely affect the 
Board's ability to resolve these custody appeals during the pendency of 
the automatic stay period. These requirements should improve the 
Board's priority handling of bond appeals in automatic stay cases.
    The final rule directs immigration judges to issue written custody 
decisions in automatic stay cases within 5 business days after the 
immigration judge is advised that DHS has filed a notice of appeal, a 
rule similar to current operating policy and procedure. (In exigent 
circumstances, the Board may agree to an extension of not more than 5 
additional business days.) With rare exceptions, the custody hearings 
conducted by immigration judges are not recorded or transcribed at the 
present time, so when a custody decision is appealed it is necessary 
for the immigration judge to issue a written decision describing the 
evidence and explaining the result. The regulation already requires 
that DHS must file the Form EOIR-43 (invoking the automatic stay) 
within one business day of the immigration judge's decision, but DHS's 
notice of appeal (after review of the case by a senior legal official) 
is not due until 10 business days after the immigration judge's 
decision. The rule also directs the immigration court to prepare and 
submit the record of proceedings on the custody decision without delay. 
The Department 's intent is to avoid unnecessary delays before the 
record of proceedings is submitted to the Board.
    In addition, the Department is inserting a provision into the rule 
directing the Board to track the progress of each custody appeal which 
is subject to an automatic stay in order to avoid unnecessary delays in 
completing the record for decision. The Board will notify the parties 
of the date the automatic stay will expire.
    Also, the rule provides that, if the Board grants an alien's 
request for additional briefing time, then the Board's order will also 
toll the 90-day period for the same number of days. Such requests for 
extensions are rare, but they do occur. The premise of this provision 
is to provide flexibility if the Board grants additional time for the 
filing of the alien's brief, to ensure that such delays do not impact 
the ability of the Board to resolve the custody appeal during the 
period of the automatic stay. This provision does not cover requests by 
DHS for additional briefing time, as DHS is free to seek a 
discretionary stay if necessary.
    For those appeals where, for whatever reason, the process of 
preparing the record of proceedings, briefing by the parties, and 
consideration and decision by the Board is not accomplished within the 
90-day duration of the automatic stay, the final rule provides that the 
automatic stay will lapse at the end of the 90-day period even though 
the Board has not completed action on the custody appeal. Although the 
Board gives priority to custody appeals involving detained aliens, 
pursuant to Sec.  1003.1(e)(8), the Department recognizes that it may 
not always be possible for the Board to resolve a custody appeal within 
90 days after the filing of a notice of appeal because of the 
complexity of the issues or some unusual delay in the process. In that 
instance, DHS will be required to seek a discretionary stay under 8 CFR 
1003.19(i)(1) pending final action by the Board. DHS should file its 
motion for discretionary stay a reasonable time before the expiration 
of the 90-day period in order to avoid the disruptions resulting from 
last-minute stay motions.
    Because the Board generally will already have the record of 
proceedings and the parties' briefs before it at that point, the Board 
should be able to determine very promptly whether to grant a 
discretionary stay in connection with its disposition of the merits of 
the custody appeal. To ensure that there is no inadvertent gap in the 
process, the rule provides that, if the Board fails to adjudicate a 
previously-filed stay motion by the end of the 90-day period, the stay 
will remain in effect (but not more than 30 days) during the time it 
takes for the Board to decide whether or not to grant a discretionary 
stay.
    Then, if the Board denies a discretionary stay or issues a decision 
upholding the immigration judge's custody decision, then the Secretary 
or designated DHS official will have 5 business days to consider 
whether to refer the decision for the Attorney General's personal 
review, as discussed below. This time frame is consistent with the 
current regulation at Sec.  1003.19(i)(2).
    Third, the final rule provides a new limitation on the duration of 
the automatic stay in the context of the Attorney General's personal 
review of a custody decision. Under the final rule, if the Secretary or 
designated DHS official refers a custody decision to the Attorney 
General within 5 business days after the Board's decision, the 
automatic stay will continue for 15 business days after the case is 
referred to the Attorney General. The Attorney General may, of course, 
grant a further stay in the exercise of his discretion, and the rule 
provides that DHS's referral of a case to the Attorney General may 
include a motion and proposed order in support of a discretionary stay. 
This rule, as revised, will allow a brief period of time for the 
Attorney General to consider the merits of the referred decision and 
the arguments presented, and either to act on the referred decision, to 
decline to intervene, or to order a discretionary stay pending the 
Attorney General's final decision of the case on the merits. The final 
rule provides that DHS may include in connection with the referral a 
motion requesting a discretionary stay if DHS believes that the case 
requires such a stay, but DHS may also suggest that the legal questions 
in the case referred to the Attorney General be preserved for decision 
even if the stay is allowed to terminate. This revised approach is 
eminently reasonable in connection with the rare and significant cases 
where the Secretary or designated DHS official refers a custody 
decision from the Board for the Attorney General's consideration and 
decision.\2\
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    \2\ Former Attorney General Janet Reno had previously elaborated 
on issues relating to staying a decision by the Board pending review 
of the merits by the Attorney General in Matter of A-H-, A.G. Order 
2380-2001 (A.G. Jan. 19, 2001). See In re E-L-H-, 23 I&N Dec. 700 
(A.G. 2004) (attachment). This rule sets a specific time limit with 
respect to custody appeals referred to the Attorney General, 
providing that the stay will extend only 15 business days after the 
Board's decision is certified to the Attorney General, unless the 
Attorney General grants a discretionary stay pending his further 
review.
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    The interim rule already provides an automatic stay for 5 business 
days of a decision by the Board authorizing the release of an alien, in 
order to allow a brief period of time for the Secretary or a senior DHS 
official to consider the case personally and decide whether to refer 
the decision to the Attorney General for his personal review. The final 
rule preserves the existing provision, but makes a necessary conforming 
change in light of the new provision setting a fixed date for the 
expiration of the automatic stay of the immigration judge's decision. 
This rule provides that the automatic stay will continue for 5 business 
days not only if the Board issues a decision authorizing the alien's 
release, but also if the Board denies a discretionary stay or if the 
Board fails to act prior to the expiration of the automatic stay on a 
DHS motion for discretionary stay, since the result in those cases 
would also be the release of the alien from custody. In either case, 
the premise of this rule is to allow the Secretary or designated DHS 
official the

[[Page 57876]]

opportunity within a brief 5-day period to consider whether to refer 
the case to the Attorney General, before DHS is obligated to release 
the alien. This result is similar to the mandate rules in effect in 
many courts, which provide that decisions of the court do not take 
effect until the issuance of the mandate a fixed number of days after 
the court's decision. Under the existing provisions of the rule, the 
automatic stay will lapse if DHS does not refer the case to the 
Attorney General within 5 business days.
    Fourth, although the change was not included in the interim rule, 
the final rule clarifies the language of the existing stay provision in 
8 CFR 1003.19(i)(1) to refer to the authority of DHS to seek ``a 
discretionary stay (whether or not on an emergency basis)'' at any 
time. This is not a substantive change in the applicability of this 
provision, but is a more accurate description of the Board's existing 
stay authority under this provision rather than the current shorthand 
term ``an emergency stay.'' The Board itself already refers to a stay 
under Sec.  1003.19(i)(1) as a ``discretionary stay'' and considers 
whether to grant a stay as such. See, e.g., Matter of Joseph, 22 I&N 
Dec. at 662 (``the Board granted the Service a temporary discretionary 
stay of the Immigration Judge's release order pursuant to our authority 
under 8 CFR 3.19(i)(1)''). The rule properly allows DHS to seek a stay 
under Sec.  1003.19(i)(1) (whether or not on an emergency basis) at any 
time. However, the actual decision granting a stay of an immigration 
judge's custody decision under Sec.  1003.19(i)(1) has never been 
limited to ``emergency'' situations on the merits of the custody 
appeal, but a stay may be granted in the exercise of discretion by the 
Board.
    Finally, the final rule makes stylistic changes to Sec.  1003.19(i) 
reflecting the transfer of authority from the former INS to DHS and the 
redesignation of Sec.  3.19(i) as Sec.  1003.19(i). The rule also makes 
a technical change to the organization of the automatic stay provisions 
by removing provisions relating to the Board's procedures from Sec.  
1003.19, which relates to the immigration judge proceedings, and 
transferring them to a more appropriate location in the Board's 
regulations at Sec.  1003.6(c) and (d) (covering the Board's review of 
an immigration judge's decision, and Attorney General review, 
respectively). Paragraph (d) codifies the Attorney General's existing 
authority to grant a case-by-case discretionary stay in any case 
certified to the Attorney General for review.

Public Comments

    The interim rule provided for a 60-day comment period which ended 
on December 31, 2001. The Department received six comments from various 
organizations and will respond to them by subject matter. Five 
commenters were opposed to the interim rule in general, raising issues 
regarding its constitutionality, the breadth of its provisions, and the 
present meaningfulness of custody review, and challenging the need to 
change the preexisting stay provisions. Several of those commenters 
also offered alternative suggestions to achieve the stated goal of the 
rule. One commenter supported the interim rule in general but urged 
that the automatic stay provisions be applied selectively.
    After careful review and consideration of the comments, the 
Department has chosen not to adopt the comments and suggestions 
precisely as stated. However, the Department has decided to make 
several changes to the interim rule, in response to the public comments 
and the Department's experience in adjudicating cases subject to the 
automatic stay, to limit the duration of the automatic stay and clarify 
the circumstances in which it is invoked. These changes, taken 
together, substantially respond to the merits of the comments and 
establish an unquestionably firm legal basis for the implementation of 
the final rule in the future.

Due Process--Freedom From Restraint

    Five commenters stated that the interim regulation is 
unconstitutional because it violates the Due Process Clause of the 
Fifth Amendment. Specifically, the commenters assert that the interim 
regulation violates the substantive due process right to be free from 
restraint because it is too broad and not narrowly tailored.
    The commenters cited several Supreme Court cases for the 
proposition that aliens are to be afforded due process upon entry into 
the United States. The most recent Supreme Court decision cited in the 
comments, Zadvydas v. Davis, 533 U.S. 678 (2001), states that due 
process guarantees apply to `` `persons' within the United States, 
including aliens, whether their presence here is lawful, unlawful, 
temporary, or permanent.'' Id. at 693. Commenters contended that the 
Department could point to no authority holding that the fundamental 
right to be free from bodily restraint is reserved only to citizens. 
Several commenters criticized the regulation based on their view that 
aliens in removal proceedings should be entitled to a right to be free 
from restraint that is analogous to the right that applies to the pre-
trial detention of criminal defendants.
    Moreover, commenters stated that the supplementary language in the 
interim rule skirted or misstated important Federal court cases. For 
example, the Department cited Wong Wing v. United States, 163 U.S. 228, 
235 (1896), and Doherty v. Thornburgh, 943 F.2d 204 (2d Cir. 1991), in 
support of the interim rule. The commenters, however, asserted that the 
Department ignored the finding in those cases that all aliens present 
in the United States have full due process rights.
    Conversely, the commenter in support of the interim rule stated 
this constitutionally protected liberty interest is weak in the case of 
illegal aliens who have no well-founded expectations of being permitted 
to remain in the United States. According to the commenter, their 
detention can be avoided if they are willing to depart the United 
States voluntarily. This commenter noted that the custody review 
process provides for administrative appeals of detention decisions even 
though there is no constitutional requirement to do so, that 
individuals detained pursuant to the automatic stay provisions can 
challenge their detention by seeking a writ of habeas corpus from a 
Federal district court, and that, therefore, aliens are provided with 
``all the `process' they are due under the Fifth Amendment's due 
process clause.''
    In response, the Department notes that the due process arguments of 
the commenters opposed to the interim rule are not well founded and 
fundamentally misstate the relevant jurisprudence. The Department 
extensively considered the constitutional issues relating to the 
detention of aliens in general and the automatic stay rule in 
particular when the Attorney General first adopted the automatic stay 
provision in 1998. See 63 FR 27441, 27448-49 (1998). The following 
discussion reviews the jurisprudence as it relates to the detention of 
aliens during removal proceedings, and explains how this rule functions 
within the statutory framework. When properly considered, there is no 
question that the authority for this rule is well grounded in law.
    Aliens have no right to bond during removal proceedings. The 
Supreme Court has repeatedly ``recognized detention during deportation 
proceedings as a constitutionally valid aspect of the deportation 
process,'' Demore v. Kim, 538 U.S. 510, 523 (2003), and has recognized 
that ``Congress eliminated any presumption

[[Page 57877]]

of release pending deportation, committing that determination to the 
discretion of the Attorney General,'' Reno v. Flores, 507 U.S. 292, 306 
(1993); see also Carlson v. Landon, 342 U.S. 524, 534 (1952). Under 
longstanding provisions of the Immigration and Nationality Act, the 
Attorney General has had broad detention authority. Flores, 507 U.S. at 
294 (``Congress has given the Attorney General broad discretion to 
determine whether, and on what terms, an alien arrested on suspicion of 
being deportable should be released pending the deportation hearing''). 
Now, after enactment of the HSA, the Secretary of Homeland Security 
exercises that discretion in carrying out the detention and enforcement 
authority formerly administered by the INS, and the Attorney General 
and his delegates (the Board and the immigration judges) exercise that 
discretion in the review of the custody decisions initially made by 
DHS. See Matter of D-J-, 23 I&N Dec. at 573-76.
    Neither the regulations nor administrative decisions place any 
official limit on the discretion that the Attorney General or his 
delegates exercise with respect to the granting of bond or parole 
during removal proceedings. See id. at 575-76 (``As recognized by the 
Supreme Court, section 236(a) does not give detained aliens any right 
to release on bond. See Carlson v. Landon, 342 U.S. 524, 534 (1952). 
Rather, the statute merely gives the Attorney General the authority to 
grant bond if he concludes, in the exercise of broad discretion, that 
the alien's release on bond is warranted * * *. Further, the INA does 
not limit the discretionary factors that may be considered by the 
Attorney General in determining whether to detain an alien pending a 
decision on asylum or removal.''). Release on bond is, in fact, ``a 
form of discretionary relief.'' Barbour v. INS, 491 F.2d 573, 578 (5th 
Cir.), cert. denied, 419 U.S. 873 (1974). Given that many aliens in 
removal proceedings are clearly engaged in a continuing violation of 
United States law by their mere presence in the United States, release 
on bond is an extraordinary act of sovereign generosity. See Reno v. 
American-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999) (``in 
all cases, deportation is necessary in order to bring to an end an 
ongoing violation of United States law''); INS v. Lopez-Mendoza, 468 
U.S. 1032, 1039 (1984) (``The purpose of deportation is not to punish 
past transgressions but rather to put an end to a continuing violation 
of the immigration laws''); Gomez-Chavez v. Perryman, 308 F.3d 796, 
800-01 (7th Cir. 2002) (an alien ``can have no liberty interest in 
remaining in violation of applicable United States law'').
    Moreover, removal proceedings are civil proceedings, and aliens 
have no substantive due process right to be at large during the 
pendency of removal proceedings against them because they have no 
fundamental right to be in the United States at all. See Carlson v. 
Landon, 342 U.S. 524, 534 (1952) (``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''); DeMartinez v. Ashcroft, 363 F.3d 1022, 1028 (9th Cir. 
2004) (``Aliens have no fundamental right to be in the United States 
and Congress has exceedingly broad power over the admission and 
expulsion of aliens.'') (internal quotations omitted); Munoz v. 
Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (rejecting alien's 
substantive due process argument, because control over immigration is a 
``fundamental sovereign attribute exercised by the Government's 
political departments''). In addition, another primary distinction 
between a criminal defendant and an alien detained pending his removal 
proceedings is that the alien may secure his release at any time by 
agreeing to leave the country. See Richardson v. Reno, 180 F.3d 1311, 
1317 n.7 (11th Cir. 1999) (unlike criminal cases, immigration detention 
``is not entirely beyond [the alien's] control; he is detained only 
because of the removal proceedings, and he may obtain his release any 
time he chooses by withdrawing his application for admission and 
leaving the United States''); Parra v. Perryman, 172 F.3d 954, 958 (7th 
Cir. 1999) (detained alien ``has the keys in his pocket''); Doherty v. 
Thornburgh, 943 F.2d 204, 212 (2d Cir. 1991) (detained alien 
``possessed, in effect, the key that unlocks his prison cell''). Aliens 
who are clearly deportable (often admittedly so) and seek only 
discretionary relief have even less at stake, because they have no 
liberty interest in discretionary relief applications. See Tovar-Landin 
v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004); United States v. 
Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir. 2004) (en banc); Mireles-
Valdez v. Ashcroft, 349 F.3d 213, 219 (5th Cir. 2003); Nativi-Gomez v. 
Ashcroft, 344 F.3d 805, 808 (8th Cir. 2003); Smith v. Ashcroft, 295 
F.3d 425, 429 (4th Cir. 2002); Huicochea Gomez v. INS, 237 F.3d 696, 
699-700 (6th Cir. 2001); Tefel v. Reno, 180 F.3d 1286, 1300 (11th Cir. 
1999); Ahmetovic v. INS, 62 F.3d 48, 53 (2d Cir. 1995); Adras v. 
Nelson, 917 F.2d 1552, 1558 (11th Cir. 1990); Achacoso-Sanchez v. INS, 
779 F.2d 1260, 1264 (7th Cir. 1985).\3\ Finally, as observed, unlike 
most criminal defendants, immigration law violators are engaged in an 
ongoing violation of law. Lopez-Mendoza, 468 U.S. at 1046 (applying the 
exclusionary rule in a deportation proceeding that sought to prevent 
ongoing illegal activity as opposed to punishing the alien for past 
transgressions would allow courts ``to close their eyes to ongoing 
violations of the law''). Thus, to the extent an illegal alien in 
immigration proceedings has any constitutional right to remain at 
large, it is a weak one.
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    \3\ Although the initial custody decision by an immigration 
judge oftenmay take place at an early stage of the removal 
proceedings, there are also instances where the immigration judge or 
the Board are making custody decisions after an alien has conceded 
removability at a master calendar hearing but is seeking 
discretionary relief from removal, or even after an immigration 
judge has ordered the alien removed during the time that the merits 
issues are still pending on appeal before Board. For example, in 
Matter of D-J-, the Board made its decision on the alien's custody 
appeal more than one month after the alien had already been denied 
asylum and ordered removed by the immigration judge, but before the 
alien's merits appeal had been addressed by the Board. 23 I&N Dec. 
at 582 (``The IJ's denial of the respondent's application for asylum 
increases the risk that the respondent will flee if released from 
detention'').
    Moreover, for those cases that are the subject of petitions for 
review in the circuit courts, it is very often the case that the 
alien has either conceded removability before an immigration judge 
or been found removable, or at least does not contest that anything 
other than discretionary relief from removal is at issue. In such 
cases, where there is no claim for mandatory relief, the alien can 
secure his freedom by agreeing to leave the country, and the only 
cost is merely the abandonment of a discretionary relief application 
in which he or she has no liberty interest anyway.
---------------------------------------------------------------------------

    Congress clearly provided for the Attorney General and the 
Secretary to have broad discretionary authority with respect to the 
detention of aliens pending removal. The INA places no substantive 
limits on their discretion to detain or grant bonds or parole to aliens 
during removal proceedings. INA section 236(a), 8 U.S.C. 1226(a), 
grants unfettered discretion to grant or deny bonds, and section 236(b) 
gives discretion to revoke bonds. The HSA transferred the former INS's 
detention, removal, enforcement, and investigative functions to DHS. 
See also INA Sec.  103(a)(3), 8 U.S.C. 1103(a)(3) (2000) (granting 
broad authority to the Secretary to issue regulations with respect to 
the administration of the immigration laws); INA Sec.  236(e), 8 U.S.C. 
1226(e) (providing that discretionary bond and parole decisions

[[Page 57878]]

are not within any court's jurisdiction to set aside or review).
    The important immigration-related purpose of detaining aliens in 
appropriate cases during the pendency of removal proceedings is plainly 
evident from the Department of Justice Inspector General's report in 
February 2003, which updated and largely mirrored the results of the 
Inspector General's 1996 report. In the 2003 report, the Inspector 
General found that the former INS had successfully carried out removal 
orders and warrants with respect to almost 94% of aliens who had been 
detained during the pendency of their removal proceedings. However, in 
stark contrast, only 13% of final removal orders and warrants were 
carried out against non-detained aliens (a group that includes aliens 
ordered released by DHS, immigration judges, or the Board). The 
Inspector General specifically noted the former INS was successful in 
removing only 6% of non-detained aliens from countries that the United 
States Department of State identified as sponsors of terrorism; only 
35% of non-detained aliens with criminal records; and only 3% of non-
detained aliens denied asylum. Office of the Inspector General, U.S. 
Department of Justice, The Immigration and Naturalization Service's 
Removal of Aliens Issued Final Orders, Report Number I-2003-004 (Feb. 
2003).
    Statistics prepared by the Executive Office for Immigration Review 
also substantiate that large numbers of respondents who are released on 
bond or on their own recognizance fail to appear for their removal 
hearings before an immigration judge. For the last 4 fiscal years, 37% 
(FY 2004), 41% (FY 2003), 49% (FY 2002), and 52% (FY 2001) of such 
respondents have failed to appear for their scheduled hearings, and the 
immigration judges have either issued in absentia removal orders or 
administratively closed those removal proceedings. EOIR, FY 2004 
Statistical Year Book at H3 (March 2005).\4\ These numbers--totaling 
over 52,000 ``no-show'' aliens in just the last four years after being 
released from custody--reflect only those respondents released from 
custody who fail to appear for their removal hearings before the 
immigration judges. (They do not include the substantial additional 
number of non-detained aliens who do appear for their immigration judge 
hearing, but then fail to surrender after their removal order becomes 
final and join the growing ranks of hundreds of thousands of absconders 
currently at large.) Given that over 52,000 aliens who had been 
released from custody--45% of the total number of respondents who were 
released on bond or on their own recognizance--failed to show up for 
their scheduled removal hearings in just the past 4 years, the Attorney 
General has very good reason to provide a special process for prompt 
review by the Board of initial decisions by the immigration judges in 
certain cases. DHS can then invoke that process, on a discretionary 
basis, but only in those cases where DHS had detained an alien without 
bond or had set a bond of $10,000 or more, prior to being required to 
release the alien.
---------------------------------------------------------------------------

    \4\ These EOIR statistics for ``released'' aliens who 
arereleased on bond or on their own recognizance cover only those 
aliens who were released from custody after the initiation of 
removal proceedings against them.
    EOIR also tracks a separate category of ``non-detained'' 
aliens--including those aliens who were never taken in custody by 
DHS at all (such as many asylum applicants) as well as those aliens 
who had been apprehended but were released by DHS prior to or at the 
time of the initiation of removal proceedings against them. Of those 
``non-detained'' aliens, 38% failed to appear for their removal 
hearings during the last 4 fiscal years--a total of almost 130,000 
``no-show'' aliens in just the last 4 years. FY 2004 Statistical 
Year Book at H2.
---------------------------------------------------------------------------

    Past experience shows that DHS has invoked the automatic stay in 
only a select number of custody cases. For example, the EOIR statistics 
indicate that, in FY 2004, the immigration judges conducted some 33,000 
custody hearings and the Board adjudicated 1,373 custody appeals. Yet, 
DHS sought an automatic stay only with respect to 273 aliens in FY 
2004--and only 43 aliens in FY 2005.

Due Process--Indefinite Detention

    Several commenters also suggested that the interim rule provides 
for indefinite detention of aliens and is therefore contrary to the 
Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001).
    In response, the Department notes that these arguments misstate the 
procedural posture of these cases. Zadvydas was a case where removal 
proceedings were completed but the government was unable to remove the 
alien from the United States, and the alien contended that continued 
detention under section 241(a) of the INA served no immigration-related 
purpose as an aid to deportation in light of the difficulties in 
repatriating the alien.
    By contrast, the detention cases covered by the automatic stay in 
this final rule only concern the detention of aliens under section 236 
of the INA during the pendency of removal proceedings against them. The 
duration of such detention is necessarily limited by the ultimate 
completion of those removal proceedings, and the immigration-related 
purpose of such detention during the pendency of removal proceedings as 
an aid to removal of aliens who ultimately receive final orders of 
removal cannot be doubted, for the reasons summarized herein and 
discussed at greater length in the relevant judicial decisions relating 
to section 236 of the INA and the supplementary information 
accompanying the 1998 and 2001 automatic stay rules. The Supreme Court 
in Kim contrasted that case with Zadvydas, and found that because ``the 
statutory provision at issue governs detention of deportable criminal 
aliens pending their removal proceedings * * *[,] the detention 
necessarily serves the purpose of preventing deportable criminal aliens 
from fleeing prior to or during their removal proceedings.'' Kim, 538 
U.S. at 527-28. The Court also found that the detention during the 
pendency of removal proceedings was not ``indefinite'' or ``potentially 
permanent,'' because the detention has ``a definite termination 
point,'' that being the completion of proceedings. Id. at 528-29.
    As the Supreme Court noted in Kim, an alien's detention during the 
pendency of removal proceedings is necessarily bounded by the period of 
time necessary to bring the underlying removal proceedings themselves 
to a conclusion. Id. Once the alien becomes the subject of a final 
order of removal, the alien is no longer detained under the authority 
of section 236 of the INA, and any issues relating to the automatic 
stay would become moot. At that point, detention of aliens subject to 
final orders of removal is governed instead by section 241(a) of the 
INA, 8 U.S.C. 1231(a), which generally requires detention of such 
aliens until they can be removed from the United States.
    In fact, in most cases the alien will be detained pursuant to the 
automatic stay rule for a period of time substantially shorter than the 
length of the removal proceedings. The stay remains in effect only 
until the Board has ruled on the custody appeal, and the automatic stay 
is extinguished by the Board's order on the custody appeal, even if the 
Board has not yet considered the alien's removal proceedings on the 
merits. See Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (Joseph II). 
The existing regulations, 8 CFR 1003.1(e)(8), already require the Board 
to give ``a priority for cases or custody appeals involving detained 
aliens'' and also provide direction with respect to how long appeals 
should take: in general, all appeals assigned to a single Board member 
will be disposed of within 90 days after completion of the record on

[[Page 57879]]

appeal, and all appeals assigned to a three-member panel of the Board 
will be disposed of within 180 days. Id. Thus, the automatic stay ``is 
a limited measure and is limited in time--it only applies where the 
[DHS] determines that it is necessary * * * and the stay only remains 
in place until the Board has had the opportunity to consider the 
matter.'' 66 FR at 54910. Under this final rule, the automatic stay of 
the decision of the immigration judge is further limited to 90 days 
after the filing of the notice of appeal, even if the Board has not yet 
completed action on DHS's custody appeal or an appeal on the merits of 
the removal proceedings.
    We note the Ninth Circuit's recent decision concluding that DHS is 
not authorized to continue an alien in detention for an indefinite 
period more than six months where there is no significant likelihood of 
the alien's removal in the reasonably foreseeable future. See Nadarajah 
v. Gonzales, 443 F.3d 1069 (9th Cir. 2006). Nadarajah was an arriving 
alien and was therefore detained under section 235(b) of the INA. As a 
result, he was not eligible for an IJ custody hearing pursuant to 8 CFR 
1003.19(h)(2)(i)(B), and the case therefore has no direct bearing on 
the rules for stays in custody hearings. That said, however, the 
Nadarajah court read Demore v. Kim more narrowly than suggested above. 
Nothing in Nadarajah, however, suggests any infirmity in this final 
rule. This rule imposes a flat 90-day limitation on the duration of the 
automatic stay in any case in which DHS pursues an appeal of an IJ 
custody order; includes several provisions to expedite the timing of 
the Board's adjudication of such appeals; and also imposes a brief 
fixed period for an automatic stay in those rare custody cases 
certified for review by the Attorney General. Thus, there is no issue 
of indefinite detention in connection with review of custody issues 
under this rule. Moreover, although IJ custody proceedings are distinct 
from removal proceedings, 8 CFR 1003.19(d), the likelihood that the 
alien will or will not be able to obtain relief from removal on the 
merits is an important factor the IJ and the Board consider in 
evaluating whether an alien who is seeking to be released may pose a 
risk of flight. See Matter of X-K-, 23 I&N Dec. 731, 736 (BIA 2005) 
(``Some aliens may demonstrate to the Immigration Judge a strong 
likelihood that they will be granted relief from removal and thus have 
great incentive to appear for further hearings.''); Matter of D-J-, 23 
I&N Dec. 572, 582 (A.G. 2003) (``The IJ's denial of the respondent's 
application for asylum increases the risk that the respondent will flee 
if released from detention.''); Matter of Adeniji, 22 I&N Dec. 1102,--
--(BIA 1999) (``In view of [the alien's] criminal record and history of 
other questionable or deceitful behavior, we do consider him to present 
a risk of flight should he lose his case on the merits.'').
    It is also important to note that the automatic stay rule in no way 
creates a new class of mandatory detention. As explained, aliens who 
are subject to mandatory detention under section 236(c) of the INA--the 
process that was explicitly upheld by the Supreme Court's decision in 
Kim--are detained without any individualized risk assessment, and DHS 
has no choice whether or not to detain the alien. By contrast, aliens 
subject to the automatic stay are being detained under the authority of 
section 236(a) of the INA and are in fact still in the process of 
receiving just such an individualized assessment. In any event, as 
discussed, the Supreme Court in Lopez v. Davis affirmed the authority 
of agencies ``to rely on rulemaking to resolve certain issues of 
general applicability unless Congress clearly expresses an intent to 
withhold that authority.'' 531 U.S. 230, 244 (2001). DHS is able to 
invoke the automatic stay with respect to aliens whom it believes are 
potentially dangerous, or are at risk of absconding prior to the 
conclusion of removal proceedings, or whose cases DHS believes 
otherwise present important considerations calling for detention during 
the course of removal proceedings. The INA in no way withheld authority 
for the Attorney General to rely on rulemaking in making the 
discretionary judgment about whether such aliens must be released 
during the brief period of time required for DHS to pursue an expedited 
appeal of the immigration judge's decision and for the Board to render 
a decision on the custody issue.
    In any event, as discussed above, the Department has amended the 
final rule to provide additional limitations on the duration of the 
automatic stay both with respect to custody decisions of the 
immigration judges on appeal to the Board, and with respect to 
decisions of the Board that are referred for review by the Attorney 
General. The multiple time limits built into the final rule plainly 
obviate any argument that the detention authorized pursuant to the 
automatic stay is in any way ``indefinite,'' much less ``potentially 
permanent'' as the Supreme Court found in Zadvydas with respect to the 
post-final order detention of an alien whom the government was unable 
to remove.
    After the expiration of the automatic stay pursuant to the strict 
time limits set forth in this rule, the IJ's custody order will not be 
stayed unless the IJ, the Board, or the Attorney General orders a 
discretionary stay pending a final decision. Such case-by-case 
discretionary stays have long been available in immigration 
proceedings, and may be granted consistent with applicable legal 
standards during the time needed to allow the decisionmaker to complete 
action on a pending appeal.

Due Process--Meaningful Opportunity To Challenge Detention

    Several commenters also contended that the interim rule deprives 
aliens of due process by preventing them from having a meaningful 
opportunity to challenge their detention before a neutral arbiter. In 
their view, DHS should not be able to override an immigration judge's 
individualized decision to order an alien's immediate release by 
invoking an automatic stay in connection with DHS's expedited appeal to 
the Board challenging the immigration judge's release order. One 
commenter stated, ``the [DHS] has complete control of a noncitizen's 
custody status for months * * *. The regulation gives local [DHS] 
personnel the unilateral authority to hold noncitizens in detention for 
significant periods of time regardless of the decision rendered by an 
immigration judge.''
    In response, the Department notes that the INA places no 
restrictions on the Attorney General's or the Secretary's discretion to 
prescribe procedures for the adjudication of bond requests by aliens 
during removal proceedings, and agencies are generally afforded great 
latitude in organizing themselves internally and in developing 
procedures for carrying out their responsibilities. See Vermont Yankee 
Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 
U.S. 519, 544 (1978) (``agency should normally be allowed to exercise 
its administrative discretion in deciding how, in light of internal 
organization considerations, it may best proceed to develop the needed 
evidence and how its prior decision should be modified in light of such 
evidence as develops.''); Dia v. Ashcroft, 353 F.3d 228, 238 (3d Cir. 
2003) (en banc) (``The Supreme Court has forcefully emphasized that 
`[a]bsent constitutional constraints or extremely compelling 
circumstances the administrative agencies should be free to fashion 
their own rules of procedure and to pursue methods of inquiry capable 
of permitting them to discharge their

[[Page 57880]]

multitudinous duties.' '') (citing Vermont Yankee).
    This is particularly true in the immigration area. In finding that 
individual bond hearings are not required to detain aliens during 
proceedings pursuant to section 236(c) of the INA, the Supreme Court in 
Kim stated that ``when the Government deals with deportable aliens, the 
Due Process Clause does not require it to employ the least burdensome 
means to accomplish its goal.'' 538 U.S. at 528; see also id. at 521 
(``In the exercise of its broad power over naturalization and 
immigration, Congress regularly makes rules that would be unacceptable 
if applied to citizens.'') (quoting Matthews v. Diaz, 426 U.S. 67, 79-
80 (1976)); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) 
(``judicial deference to the Executive Branch is especially appropriate 
in the immigration context where officials exercise especially 
sensitive political functions that implicate questions of foreign 
relations''); Matthews v. Diaz, 426 U.S. 67, 81-82 (1976) (``Any rule 
of constitutional law that would inhibit the flexibility of the 
political branches of government to respond to changing world 
conditions should be adopted only with the greatest caution'').
    The Act itself contains no requirement whatsoever for the 
immigration judges to conduct custody reviews for aliens detained by 
DHS during the pendency of removal proceedings. In contrast to section 
240 of the INA, which expressly refers to the role of immigration 
judges in conducting removal proceedings, section 236 of the INA makes 
no reference at all to the immigration judges, but vests the discretion 
in the Attorney General to determine the processes and standards for 
exercising discretion in determining which aliens to release from 
custody during the pendency of proceedings, and under what conditions 
of release. Thus, the authority that the immigration judges exercise in 
conducting custody reviews is drawn solely from the delegation of 
authority by the Attorney General by regulation--including 8 CFR 
1003.19, the very rule being amended in this final rule.
    The Attorney General and the Secretary have exercised their 
discretion to create separate but interrelated systems for determining 
whether aliens in removal proceedings ought to be released. Under this 
regime, an initial custody determination is made by DHS enforcement 
officials acting in an adjudicative capacity. See 8 CFR 236.1(a). The 
Supreme Court has affirmed the combination of adjudicative and 
investigative roles in the former INS. See Marcello v. Bonds, 349 U.S. 
302, 311 (1955).
    Though allowing further review of DHS custody decisions is not 
required by law, the Attorney General has chosen to provide that, if an 
alien is dissatisfied with that determination, he or she may ask an 
immigration judge to review the conditions of his or her custody, 
subject to further review by the Board. See 8 CFR 1003.19(c)(1)-(3), 
1236.1(d)(1). The immigration judges and the Board are delegates of the 
Attorney General in carrying out his authority under the INA. See INA 
Sec.  101(b)(4), 8 U.S.C. 1101(b)(4) (``An immigration judge shall be 
subject to such supervision and shall perform such duties as the 
Attorney General shall prescribe''); 8 CFR 1003.1(a)(1) (``The Board 
members shall be attorneys appointed by the Attorney General to act as 
the Attorney General's delegates in the cases that come before 
them.''); see also Matter of Hernandez-Casillas, 20 I&N Dec. 262, 289 
n.9 (BIA 1990; A.G. 1991). Under the Attorney General's regulations, 
the decision of the immigration judge is not the final step in the 
agency proceedings because it is subject to appeal to the Board, and 
ultimately to the possibility of review by the Attorney General.
    In most cases, an immigration judge's order granting an alien 
release will result in the alien's release upon the posting of bond or 
on recognizance, in compliance with the immigration judge's decision. 
The Attorney General has determined, however, that certain bond cases 
require additional safeguards before an alien is released during the 
pendency of removal proceedings against him or her. In these cases, the 
immigration judge's order is only an interim one, pending review and 
the exercise of discretion by another of the Attorney General's 
delegates, the Board. Barring review by the Attorney General, it is the 
Board's decision that the Attorney General has designated as the final 
agency action with respect to whether the alien merits bond. Thus, the 
Attorney General made an operational decision under section 236(a) of 
the INA with respect to how his discretion should be exercised in a 
limited class of cases where DHS, which now has independent statutory 
authority in this area, had sought to detain the alien without bond or 
with a bond of $10,000 or more and disagrees with the immigration 
judge's interim custody decision. See 66 FR 54909 (Oct. 31, 2001); 63 
FR 27441, 27448 (May 19, 1998); 8 CFR 1003.19(i)(2). The Attorney 
General provided, as a matter of discretion, that the alien should 
continue to be detained for a period of time necessary to allow for the 
Board to review the case. Section 1003.19(i)(2) provided that, when 
this procedure is invoked by DHS as a matter of discretion, the 
immigration judge's decision is not a final decision; instead, in those 
cases the Board, not the immigration judge, issues the final agency 
action. Moreover, in those rare cases where the Attorney General 
reviews a custody decision by the Board, the rule also provides that 
the decision of the Board is not final while it is under review by the 
Attorney General. See 66 FR at 54910. This rule may properly be viewed 
as a categorical discretionary denial of early release to this class of 
aliens. See Lopez v. Davis, 531 U.S. 230 (2001).
    This additional safeguard is needed for all the reasons stated by 
the Attorney General in connection with the adoption of the earlier 
automatic stay rules in 2001 and 1998. A custody decision that allows 
for immediate release is effectively final if the alien turns out to be 
a serious flight risk, a danger to the community, or otherwise did not 
merit bond. DHS's right to appeal is effectively vitiated if the alien 
absconds after being released pursuant to the immigration judge's 
order--and, as noted above, over 52,000 aliens, some 45% of the total 
number of aliens who were released on bond or on personal recognizance 
during the pendency of their proceedings, failed to appear for their 
removal hearings in just the last 4 years. Although the automatic stay 
is not available in all cases, and is invoked by DHS only in a 
relatively small number of cases that are within the scope of the rule, 
the automatic stay provides an important safeguard to the public in 
those cases where DHS determines that it should be invoked. The rule 
preserves the status quo briefly while DHS seeks expedited appellate 
review of the immigration judge's custody decision. The stay provides 
the Board an opportunity to review the case in an expedited but orderly 
fashion, on a record, with full briefing, and to resolve the 
conflicting views of DHS and the immigration judge with respect to 
whether the alien merits bond. The Board retains full authority to 
accept or reject DHS's contentions on appeal. The Board's rejection of 
a number of INS and DHS custody appeals since the interim rule was 
promulgated demonstrates the Board's independence in exercising this 
authority.
    The rule also briefly preserves the stay for the rare case in which 
the Attorney General will personally review a case referred to him by a 
senior DHS official. For example, in Matter of D-J-, 23 I&N Dec. at 
581, DHS

[[Page 57881]]

successfully invoked the automatic stay in order to overturn decisions 
that had excluded consideration of national security concerns 
pertaining to the granting or denying of release for aliens pending 
completion of removal proceedings. For cases personally reviewed by the 
Attorney General, however, this rule provides that the automatic stay 
will expire 15 business days after the case is referred to the Attorney 
General. The Attorney General may grant a discretionary stay pending 
final disposition of the appeal.
    The automatic stay rule does not deprive an alien of the 
opportunity meaningfully to challenge his or her detention during the 
pendency of removal proceedings or an individualized determination of 
whether the alien was a flight risk or danger to the community. The 
alien in Kim, of course, received no such individualized determination, 
and yet the statutory scheme of mandatory detention of criminal aliens 
was upheld. Moreover, unlike Kim, in cases involving the automatic stay 
where release is a matter of discretion, the alien receives several 
individualized, discretionary assessments of whether he or she merits 
bond. As discussed, the alien first receives an individualized 
assessment by DHS, followed by an individualized assessment by an 
immigration judge, and then an individualized assessment by the Board. 
The commenters pointed to no authority suggesting that an alien must be 
released while the Attorney General and his delegates are still in the 
process of determining whether the alien merits bond. In fact, the 
opposite has long been the law. See 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.'').
    In sum, the automatic stay rule establishes a process, well within 
the discretion of the Attorney General, to regulate the workings of the 
decision-making process and provide for the opportunity for review not 
only by the immigration judge but also by the Board in certain cases or 
even by the Attorney General personally before an alien is released 
from custody. It is the Attorney General's prerogative to establish a 
process to reconcile opposing decisions by DHS and an immigration judge 
with respect to whether an alien should be released prior to a decision 
by the Board on review. There is nothing in the Due Process Clause 
requiring that an alien must be released from custody immediately upon 
the issuance of an initial decision by an immigration judge. Instead, 
the ultimate decision regarding the alien's custody will be structured 
and rendered according to the processes established under Sec.  
1003.19(i)(2).

Principles of International Law

    Another commenter suggested that the interim rule violates 
international laws and principles prohibiting arbitrary detention. The 
commenter cites Article 9 of the International Covenant on Civil and 
Political Rights (ICCPR), ratified by the United States in 1992, which 
states, ``Anyone who is deprived of his liberty by arrest or detention 
shall be entitled to take proceedings before a court, in order that the 
court may decide without delay on the lawfulness of his detention and 
order his release if the detention is not lawful.'' The comment also 
cites a 1988 United Nations General Assembly resolution which states, 
``a person shall not be kept in detention without being given an 
effective opportunity to be heard promptly by a judicial or other 
authority.'' Body of Principles for the Protection of All Persons under 
Any Form of Detention or Imprisonment, G.A. res. 43/173, annex, 43 U.N. 
GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988). The commenter 
believes that, by allowing a DHS official to, in effect, ``overturn'' 
the decision of the immigration judge while it is being appealed, the 
effectiveness of the immigration judge's determination is rendered 
meaningless.
    In response, the Department notes that the automatic stay rule does 
not conflict with the provisions that the commenter cites. The rule 
does not render the immigration judge's decision meaningless, but 
simply provides a process for DHS, in certain cases, to be able to 
present its arguments in favor of continued detention to the Board, the 
reviewing authority constituted by the Attorney General, before DHS is 
obligated to release the alien. Allowing for an expedited appeal to the 
Board is an integral part of the Attorney General's process for 
reviewing the custody decisions initially made by DHS. We also note 
that unlike the specific constitutional and statutory authority for the 
detention of aliens in connection with the completion of removal 
hearings against those aliens, discussed at length in the responses to 
other comments, cf. Matter of D-J-, 23 I&N Dec. at 584 & n.3, the 
obligations cited by the commenter are not binding as a matter of 
domestic law.

Scope of the Interim Rule

    In support of the proposition that the interim rule is too broad, 
several commenters contrasted the rule with the provisions of section 
236A of the INA, 8 U.S.C. 1226a, which was enacted by Congress in the 
Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, 
Public Law No. 107-56, 115 Stat. 272 (Oct. 26, 2001). Specifically, 
commenters suggested that the rule goes beyond the detention parameters 
set by Congress in the provisions of section 236A of the INA, which 
authorizes DHS to hold an alien in certain circumstances for no more 
than 7 days without the alien's being charged with an immigration or 
criminal offense. Beyond that, the commenters note, it authorizes the 
Attorney General and Deputy Attorney General to indefinitely hold an 
alien after certifying that there are ``reasonable g