Criminal Defense of Immigrants


§ 6.38 1. Effective Date

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On July 12, 1999, the INS announced a change in policy toward persons who committed crimes and were released from state or federal criminal custody prior to October 9, 1998,[1] the expiration date of the Temporary Period Custody Rules, under which the Attorney General had discretion to release from INS custody persons subject to mandatory removal.  This new policy gives district directors discretion to release persons who are not considered a flight risk or a danger to the community.  This will apply only to persons who were released from criminal custody before October 9, 1998, and who do not have a final order of removal.  They do not win automatic release, but do have the right to have a hearing on whether they are a flight risk or danger to the community.  This policy was apparently the response to losing at least 13 court cases challenging the detention policy for people awaiting removal hearings.

[168] See Matter of Kotliar, 24 I. & N. Dec. 124 (BIA 2007); Matter of Adeniji, 22 I. & N. Dec.  1101, 1107-1111 (BIA 1999).  See also Memo, Pearson, Ex. Asst. Comm. Field Operations, HQOPS DDP 50/10 (Jul. 12, 1999), reprinted in 76 No. 27 Interpreter’s Releases. 1082, 1099-1102 (July 19, 1999).  



Thomas v. Hogan, __ F.Supp.2d __ (M.D.Pa. Oct. 31, 2008) (noncitizen was not subject to INA 236(c) mandatory detention where he had been released from criminal custody prior to October 8, 1998, the date the Transition Period Custody Rules expired.)