Aggravated Felonies

            (F)  INS Memorandum Setting Detention Priorities.  An October 7, 1998 “Memorandum for Regional Directors” from Michael Pearson, Office of Field Operations, Executive Associate Commissioner, provides guidelines on who the immigration authorities actually will make it a priority to detain[134] setting out four categories, in descending order of who must be detained.

            Category 1 – Mandatory detention under 236(c).  The INS must take into custody all aliens chargeable as terrorists, and virtually all noncitizens who are chargeable as removable on criminal grounds.  The INS goal is that 80% of available detention space should be taken up by persons in this mandatory detention category.  The INS must mandatorily detain:

(a)        Many arriving aliens in expedited removal proceedings.

(b)        Every alien chargeable for terrorism or chargeable as removable under criminal grounds except those removable for:

(i)     a single moral turpitude conviction unless a sentence of a year or more was imposed,

(ii)    a conviction of high speed flight from immigration checkpoint;

(iii)  one or more convictions of domestic violence, stalking, abuse or neglect of children.

The INS must continue to detain those who were taken into INS custody in deportation proceedings who were still in custody on October 9, 1998.  However, the subsequent July 12, 1999 policy change described above indicates that such persons who completed their criminal sentences before that date are now eligible for consideration for release, if they do not pose a flight risk or danger to the community.  The memorandum states that persons in exclusion proceedings are not subject to mandatory detention, except for those convicted of an aggravated felony.

The detainee can be released only if necessary to protect a witness, a person cooperating with an investigation, or such a person’s family member.  There must be a showing that release would not pose a danger to persons or property or a flight risk.

            Category 2 – High priority for detention.  Noncitizens chargeable with removability on security or related grounds or criminal grounds that do not trigger mandatory detention (i.e., one moral turpitude conviction with a sentence imposed of less than a year, or one or more domestic violence convictions).  Citizens who are a danger to the community or a flight risk, those citizens whose detention is essential for border enforcement, or those who have engaged in alien smuggling.

            Category 3 – Medium priority for detention.  Noncitizens who are inadmissible, non-criminal noncitizens not in expedited removal proceedings, noncitizens who committed fraud, or who were apprehended at a worksite for committing fraud to get a job.

            Category 4 – Low priority for detention.  Other removable noncitizens; or noncitizens originally placed in expedited removal who have been referred to full removal proceedings based on fear of persecution.

            The INS is not required to detain people already released from criminal custody, but if it encounters them later and begins removal proceedings they are subject to detention.

[134] The memorandum is reprinted in 75 interpreter releases 1508 (Nov. 2, 1998).