1125-AB27 202410 The Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions 1125 Executive Office for Immigration Review EOIR 1100 Department of Justice DOJ Clarifying and Revising Custody Determination Procedures for Noncitizens Subject to Discretionary Detention (INA 236(a)/8 U.S.C. 1226 detention)

The Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) and the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) (collectively, the Departments) are planning to amend the regulations that govern detention and release determinations for noncitizens subject to the custody provisions in section 236 of the Immigration and Nationality Act (Act), 8 U.S.C. 1226(a). The goal of the proposed regulation would be to clarify the scope and applicability of section 236(a) of the Act, 8 U.S.C. 1226(a), and address the burden and standard of proof for continued detention at initial custody determinations and any custody redetermination hearings. This rulemaking is consistent with Executive Order 14058, which directs agencies to take actions that improve service delivery and customer experience by decreasing administrative burdens, enhancing transparency, and improving the efficiency and effectiveness of government.

 

]]> Other Significant Previously Published in The Unified Agenda Proposed Rule Stage No No 8 CFR 1003.19 8 CFR 1236.1 8 CFR 236.1 8 CFR 236.7 8 CFR 1236.7 8 CFR 1240.10 8 CFR 1003.8 ... 8 U.S.C. 1101 8 U.S.C. 1103 8 U.S.C. 1226 ... Yes

The proposed rule is needed to use detention resources more efficiently by clarifying and further standardizing the procedures governing ICE initial custody decisions and IJ bond hearings for noncitizens subject to discretionary detention under INA 236(a). This rule will also revise the procedures for determining whether a noncitizen is properly subject to INA 236(c) detention. Additionally, this rule will clarify the detention authority that applies during the petition for review process for certain noncitizens seeking judicial review of their removal orders. Lastly, the rule will propose organizational changes to the structure of the EOIR regulations governing custody redetermination hearings and outdated provisions in the Departments’ custody and bond regulations. The Departments believe this rulemaking will help address issues that frequently arise in litigation brought by noncitizens challenging the Departments’ existing custody and bond hearing procedures and resolve differing interpretations among Federal circuit courts.  

]]>

The Attorney General has general authority under 8 U.S.C. 1103(g) to establish regulations related to the immigration and naturalization of noncitizens. More specifically, under section 441 of the Homeland Security Act (HSA), the Attorney General transferred the authority to oversee broad immigration enforcement functions, including detention and removal, to DHS. Additionally, pursuant to HSA 1101(a), the Attorney General retains and shares with DHS the authority to detain or authorize bond for noncitizens under INA 236(a).

]]>

The Departments continue to consider alternatives to this rulemaking.

]]>

DOJ and DHS are currently considering the specific cost and benefit impacts of the proposed provisions.

]]>

Without this rulemaking, the procedures and standards governing ICE custody procedures and IJ bond hearings will continue to be subject to litigation and judicial interpretation which results in a lack of nationwide uniformity. Moreover, the Departments are concerned that regulatory changes could help ICE focus its scarce detention resources on noncitizens whose detention is necessary.

]]> NPRM 07/00/2025 No No Federal No No No No 1653 U.S. Immigration and Customs Enforcement USICE Joint Raechel Horowitz Chief, Immigration Law Division, Office of Policy 1125 Executive Office for Immigration Review EOIR 703 305-0289 pao.eoir@usdoj.gov 5107 Leesburg Pike, Suite 1800, Falls Church VA 22041