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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 the procedures that apply under that section, including the burden and standard of proof for continued detention at initial custody determinations and any custody redetermination hearings, and related issues. 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organizational changes to the structure of the EOIR regulations governing custody redetermination hearings and address outdated provisions in the Departments’ custody and bond regulations.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.

Anticipated Costs and Benefits:

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