INS Advises on Detention Guidelines
Date: May 7, 1996
From: Office of Deputy Commissioner
To: Regional Directors
District Directors (Including Foreign)
Chief Patrol Agents
Officers in Charge (Including Foreign)
Chief, ODTF, Glynco, GA
Chief Patrol Agent, BPA, Glynco, GA
Asylum Office Directors
Service Center Directors
Regional Counsel
On April 24, the President signed into law the Antiterrorism and Effective Death Penalty of 1996 (AEDPA). Section 440 of the AEDPA amends section 242(a)(2) of the INA governing mandatory detention of certain criminal aliens. Section 242(a)(2) now reads as follows:
“(2) the Attorney General shall take into custody any alien convicted of any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(I), upon release of the alien from incarceration, shall deport the alien as expeditiously as possible. Notwithstanding paragraph (1) of as possible. Notwithstanding paragraph (1) of subsections (c) and (d), the Attorney General shall not release such felon from custody.”
Please note that section 440(c) of AEDPA strikes the old section 242(a)(2)(B) from the INA. The above quoted paragraph is now the entire section 2429a)(2).
The Immigration and Naturalization Service is working to adjust and clarify this provision by means of the immigration reform legislation now awaiting action by the House-Senate conferences committee. Pending that action, and in order to implement the AEDPA in an orderly and thoughtful manner the following instructions should be implemented until further analysis has been completed and further instructions are issued.
1. Aliens released prior to the amendment of section 242(a)(2) who are now subject to mandatory detention pursuant to amended section 242(a)(2) should not be taken into custody unless there have been changes in the circumstances of the case that warrant a change in custody.
2. Criminal aliens identified for mandatory detention that are encountered by INS should be detained to the extent possible. Do not, however, release currently detained noncriminals who you would otherwise continue to detain. Complete the removal process. Once the noncriminal alien is removed the detention space should be filled by a criminal alien subject to mandatory detention. Noncriminals encountered should not be detained unless there is available detention space above and beyond that needed for the mandatory detention of aliens.
3. Regarding calls from state and local law enforcement to take criminal aliens into custody, to the extent you have detention space available, you can continue to respond to those agencies in accordance with your established policies and procedures.
4. Detention space funded by user fees or unsuitable for the detention of criminals should continue to be used in the normal fashion.
Chris Sale
Deputy Commissioner