Crimes of Moral Turpitude

 

(B)  Detention of Persons with Final Orders of Removal.  The Attorney General is required to detain noncitizens subject to a final order of removal during the 90-day “removal period.”[132]  This period begins on the date the removal order becomes administratively final, or, if appealed to federal court, on the date the court issues the final order.[133]  If the noncitizen is incarcerated, the period could also begin on the date that s/he is released from incarceration.[134]  Once this period begins, s/he will be taken into custody pursuant to the warrant of removal.[135]  Any bond that has been posted will be canceled unless it has been breached.[136]  During the removal period, the INS may not release any person with a final order of removal who has been found inadmissible under INA § 212(a)(2) (criminal and related grounds) or INA § 212(a)(3)(B) (terrorist activities).[137]  Similarly, the INS may not release anyone with a final order who has been found deportable under INA § 237(a)(2) (criminal offenses) or INA § 237(a)(4)(B) (terrorist activities).[138]

 

            If the person is not removed from the United States within the 90-day removal period, the statute provides for release subject to an order of supervision.[139]  However, the regulations shift the burden to the noncitizen to establish eligibility for an order of supervision.  They provide that the Attorney General may continue to detain immigrants beyond the 90-day removal period unless they demonstrate to the district director’s satisfaction that they are likely to comply with the removal order and are not a risk to the community.[140]

 

            In Zadvydas v. Davis,[141] however, the United States Supreme Court found insufficient evidence of congressional intent to authorize indefinite detention of noncitizens subject to a final order of removal where there is no repatriation agreement with their home country.  For these so-called “lifers,” often from Cuba, Vietnam[142] and Cambodia, among others, indefinite detention is now only permissible for six months after the final order of removal, unless there is evidence that a repatriation agreement will be reached in the foreseeable future.  Federal courts have habeas power to order release on conditions after a reasonable period when removal is not reasonably foreseeable.  At least one circuit court has held after Zadvydas that periodic review of indefinite detention satisfies due process.[143] 

 

            Although the Zadvydas decision itself dealt only with noncitizens that had been admitted to the United States and subsequently ordered removed,[144] the United States Supreme Court has extended this holding to noncitizens subject to removal from the United States following exclusion or removal/inadmissibility proceedings.[145]

 

Inadmissible noncitizens or those who committed certain criminal offenses must meet a higher burden before they are released after this removal period.  These include persons who are inadmissible under INA § 212(a) or deportable under the following grounds: INA § § 237(a)(1)(C) (violated nonimmigrant status or condition of entry); 237(a)(2) (criminal convictions); or 237(a)(4) (security and related grounds).[146]  These inadmissible or deportable noncitizens may be detained beyond the 90-day removal period if they present a “significant risk of noncompliance with the order of removal.”[147]  They may be held until they demonstrate by clear and convincing evidence that their release would not pose a danger to the community or a significant flight risk.[148]

[132] INA § 241(a)(2), 8 U.S.C. § 1231(a)(2); 8 C.F.R. § 241.3(a).  The removal period is defined in INA § 241(a)(1), 8 U.S.C. § 1231(a)(1).

[133] INA § § 241(a)(1)(B)(i), (ii), 8 U.S.C. § § 1231(a)(1)(B)(i), (ii).

[134] INA § 241(a)(1)(B)(iii), 8 U.S.C. § 1231(a)(1)(B)(iii).

[135] 8 C.F.R. § 241.3(a).

[136] 8 C.F.R. § 241.3(b).

[137] INA § 241(a)(2), 8 U.S.C. § 1231(a)(2).

[138] Ibid.

[139] INA § 241(a)(3), 8 U.S.C. § 1231(a)(3).  The statute provides that these aliens “shall be subject to supervision under regulations prescribed by the Attorney General.”

[140] 8 C.F.R. § 241.4(b).

[141] Zadvydas v. Davis, 533 U.S. 678 (2001).

[142] On Jan. 22, 2008, the United States and Vietnam signed a repatriation agreement allowing the United States to deport Vietnamese nationals who arrived to the United States on or after July 12, 1995, and who have received final orders of removal. For more information, see: www.detentionwatchnetwork.org.

[143] Hoyte-Mesa v. Ashcroft, 272 F.3d 989 (7th Cir. 2001).

[144] Subsequent cases agree that the transitional rules under IIRAIRA § 309 do not apply to noncitizens placed into proceedings prior to April 1, 1997.  Seirra v. Romaine, 347 F.3d 559 (3d Cir. Oct. 29, 2003); Martinez-Vazquez v. INS, 346 F.3d 903 (9th Cir. Oct. 1, 2003) (INA § 241(a)(6), 8 U.S.C. § 1231(a)(6) applies to inadmissible noncitizens ordered excluded prior to April 1, 1997).

[145] Clark v. Martinez, 543 U.S. 371, 125 S.Ct. 716 (Jan. 12, 2005).

[146] INA § 241(a)(6), 8 U.S.C. § 1231(a)(6).

[147] INA § 241(a)(6), 8 U.S.C. § 1231(a)(6); 8 C.F.R. § 241.4(a).

[148] Ibid.