INS Commissioner Invokes Custody Rule

On October 9, 1996, INS Commissioner Doris Meissner, pursuant to authority delegated to her by the Attorney General, notified Congress that there is insufficient detention space and personnel for detention purposes and invoked “Transition Period Custody Rule.” During the “transition period” (of one year, but may be extended to a second year) the Attorney General may release certain aliens who were lawfully admitted and who do not pose a security or flight risk, or those who were not lawfully admitted but who cannot be removed because the designated country will not accept them.

The Honorable Orrin G. Hatch
Chairman, Committee on the Judiciary
United States Senate
Washington, D.C. 20510

Dear Mr. Chairman:

Pursuant to authority delegated to me by the Attorney General, 28 C.F.R. Section 0.105, I am writing to provide you the notification regarding custody specified by section 303(b)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208 (1996 Act), and thereby to invoke the application, for the coming year, of the transition period custody rules provided by section 303(b)(3) of the 1996 Act.

I have made the statutory determination in recognition of the following facts: (1) that the notification must cover the entirety of the succeeding 1-year period yet must be provided no later than October 10, 1996; (2) that Immigration and Naturalization Service (INS) detention space is predominately used for the detention of criminal aliens, under the Administration’s priorities and consistent with the statutory sections referred to in section 303(b)(2) of the 1996 Act, but must also be used to provide indispensable detention in connection with a wide variety of enforcement missions at the border and in the interior of the united States, including several responsibilities mandated by the Congress and monitored closely by your committee and the appropriations committees; (3) that the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, affecting criminal aliens have been subject to numerous court challenges, which make determination of the full detention and enforcement needs of the INS over the coming year difficult to predict, and that the comparable provisions of the 1996 Act are likely to be subject to similar challenges until definitive judicial rulings are obtained; (4) that additional requirements, of as yet uncertain impact, are imposed on INS to detain persons with final orders throughout the “removal period” under the new INA section 241(a), added by section 305 of the 1996 Act; and (5) that detention and enforcement requirements can change suddenly and dramatically based on factors outside the control of the Department of Justice or the INS, as in the case of a large-scale influx.

Therefore, based on the facts listed above, I hereby notify the Committee that there is insufficient detention space and Immigration and Naturalization Service personnel available to carry out section 236(c) of the Immigration and Nationality Act, as amended by section 303(a) of the 1996 Act, or the amendments made by section 440(c) of Public Law 104-132, the Antiterrorism and Effective Death Penalty Act, throughout the coming year.

I assure you that the detention and removal of criminal aliens from the United States remain among my highest priorities and that the INS will administer the transition period custody rules provided by section 303(b)(3) of the 1996 Act in a manner that is fully consistent with these objectives.

Sincerely,

Doris Meissner
Commissioner

cc: The Honorable Joseph R. Biden, Jr.