INS Adopts New Legal Interpretation on Mandatory Detention
July 12, 1999
WASHINGTON – In accordance with federal court decisions, the U.S. Immigration and Naturalization Service (INS) has changed its legal interpretation of the mandatory detention requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). Determined in consultation with the Department of Justice, the change is a result of several federal cases nation-wide which have successfully challenged the government’s reading of the mandatory detention requirements of IIRAIRA. The change gives some aliens who completed their criminal sentences prior to the implementation of the mandatory detention requirements in October 1998 the right to be considered for release from detention pending their removal hearings.
While emphasizing that no one who poses a threat to public safety will be released and that a case-by-case review will be conducted, INS Commissioner Doris Meissner said the updated legal opinion is consistent with several recent federal district court rulings which have held that certain criminal aliens who completed their criminal sentences prior to Oct. 9, 1998 are eligible to be considered for release from INS detention.
“The 1996 act gave INS important new tools that have helped us reach record levels in the removal of criminal aliens,” said Commissioner Meissner. “‘In one provision of the new law, at least 13 federal district courts have ruled that INS has greater flexibility in implementing the law’s mandatory detention requirements than we had thought. As a result, INS will conduct a case-by-case review and exercise discretion on those individuals who completed their criminal sentences prior to Oct. 9, 1998, do not pose a danger to the community, and demonstrate a strong likelihood to appear for their hearing.”
Aliens who may be considered for bond or parole from detention pending the outcome of removal proceedings include not only those already in INS custody, but also those who INS may encounter in the future. This will affect roughly 5 percent of INS’ total detainee population of about 17,400. These are individuals without a final order of removal who completed their criminal sentences prior to Oct. 9,1998. INS will make determinations on a case-by-case basis, and no one who poses a threat to public safety will be released by INS. The decisions of INS regarding release are subject to review by immigration judges of the Executive Office for Immigration Review.
The opinion centers on the interpretation of the word “released” in the relevant provision of IIRAIRA. Until now, INS had determined that “released” meant released from INS custody after October 9, 1998. That interpretation meant that most aliens in removal proceedings who had been convicted of crimes were subject to mandatory detention regardless of when or how long ago they completed their criminal sentences. However, 13 federal courts have held that “released” in the relevant IIRIRA provision referred only to those aliens who had completed their criminal sentences on or after October 9, 1998.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.