INS Revises Detention Policy

Subject: Parole Authority for Certain Returning Residents Who Have Committed Criminal Offenses

Date: October 22,1997

To: Management Team
Regional Directors
District Directors
Chief Patrol Agents
Officers in Charge
Chief, Immigration Officer
Academy, Glynco, GA
Chief Patrol Agent, Glynco, GA
Asylum Officer Directors
Service Center Directors
Regional Counsel
District Counsel
From: Mark K. Reed
Acting Executive Associate Commissioner for Field Operations
David A. Martin
General Counsel

The Transition Period Custody Rules (TPCR) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), now in effect, allow criminal aliens covered by the TPCR to be considered for release if they are "lawfully admitted" or if they cannot be removed because the country of removal will not accept their return.

Up until this point, the Service has interpreted the TPCR’s term "lawfully admitted" by reference to IIRAIRA’s definition of "admitted," codified at section 101(a)(13) of the Immigration and Nationality Act (INA). Under that interpretation, a returning permanent resident with an offense covered in INA section 212(a)(2) could not be considered for parole (unless unremovable).

In response to public comments on a proposed TPCR regulation published in the Federal Register on September 15, 1997, the Service has given further consideration to this interpretation, and is hereby altering it. Effective immediately, for purposes of detention under the TPCR only, the Service will regard as "lawfully admitted" any applicant for admission who remains in status as a permanent resident, conditional permanent resident, or temporary resident.[1] Such aliens may be considered, consistent with the TPCR, for parole pursuant to INA section 212(d)(5)(A), in the discretion of the District Direct.

This changed interpretation applies to returning permanent residents, conditional residents, and temporary residents only for purposes of eligibility to be considered for release under the TPCR. These individuals remain applicants for admission for other purposes. For example, a permanent resident returning to a port-of-entry with a criminal conviction covered in 212(a)(2) may be considered for release pursuant to the TPCR, but is nevertheless an "applicant for admission," and hence subject to charges of inadmissibility under INA section 212(a) rather than charges of deportability under section 237(a). (Such an alien, if arriving at a port-of-entry, would also be an "arriving alien" as defined in 8 CFR Section 1.1(q).)

Decisions to release under the TPCR require a determination that the alien is not a danger to the community and is likely to appear for any scheduled proceeding. In making these determinations, please refer to the October 29, 1996 guidance entitled "1996 Act Implementation Instruction: Interim Detention Procedure" (96Act.005).

Footnote:

[1] Other aliens will be considered "lawfully admitted" only if their last entry into the United States was lawful, and they are not currently applicants for admission. See INA section 101(a)(13)(A).