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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.

Statement of Need:

The proposed rule is needed to bring clarity and uniformity to 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 proposed rule will make organizational changes to the structure of the EOIR regulations governing custody redetermination hearings and address outdated provisions in the Departments’ custody and bond regulations.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 it may also help to resolve differing interpretations among Federal circuit courts.  

Summary of the Legal Basis:

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).

Alternatives:

Unless the Departments rely on piecemeal litigation to resolve the various issues that arise with respect to the existing custody and bond hearing procedures, there are no feasible alternatives to this rulemaking. 

Anticipated Costs and Benefits:

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

Risks:

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 the current regulatory framework risk allocating ICE’s scarce detention resources on noncitizens whose flight risk, if any, could be managed effectively in the community, rather than on those whose detention is necessary. The Departments strongly prefer proactively addressing the regulations through this proposed rule.