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U.S. Code as of:
01/03/05
Section 1231. Detention and removal of aliens ordered removed
(a) Detention, release, and removal of aliens ordered removed
(1) Removal period
(A) In general
Except as otherwise provided in this section, when an alien
is ordered removed, the Attorney General shall remove the alien
from the United States within a period of 90 days (in this
section referred to as the "removal period").
(B) Beginning of period
The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively
final.
(ii) If the removal order is judicially reviewed and if a
court orders a stay of the removal of the alien, the date of
the court's final order.
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.
(C) Suspension of period
The removal period shall be extended beyond a period of 90
days and the alien may remain in detention during such extended
period if the alien fails or refuses to make timely application
in good faith for travel or other documents necessary to the
alien's departure or conspires or acts to prevent the alien's
removal subject to an order of removal.
(2) Detention
During the removal period, the Attorney General shall detain
the alien. Under no circumstance during the removal period shall
the Attorney General release an alien who has been found
inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this
title or deportable under section 1227(a)(2) or 1227(a)(4)(B) of
this title.
(3) Supervision after 90-day period
If the alien does not leave or is not removed within the
removal period, the alien, pending removal, shall be subject to
supervision under regulations prescribed by the Attorney General.
The regulations shall include provisions requiring the alien -
(A) to appear before an immigration officer periodically for
identification;
(B) to submit, if necessary, to a medical and psychiatric
examination at the expense of the United States Government;
(C) to give information under oath about the alien's
nationality, circumstances, habits, associations, and
activities, and other information the Attorney General
considers appropriate; and
(D) to obey reasonable written restrictions on the alien's
conduct or activities that the Attorney General prescribes for
the alien.
(4) Aliens imprisoned, arrested, or on parole, supervised
release, or probation
(A) In general
Except as provided in section 259(a) (!1) of title 42 and
paragraph (2),(!2) the Attorney General may not remove an alien
who is sentenced to imprisonment until the alien is released
from imprisonment. Parole, supervised release, probation, or
possibility of arrest or further imprisonment is not a reason
to defer removal.
(B) Exception for removal of nonviolent offenders prior to
completion of sentence of imprisonment
The Attorney General is authorized to remove an alien in
accordance with applicable procedures under this chapter before
the alien has completed a sentence of imprisonment -
(i) in the case of an alien in the custody of the Attorney
General, if the Attorney General determines that (I) the
alien is confined pursuant to a final conviction for a
nonviolent offense (other than an offense related to
smuggling or harboring of aliens or an offense described in
section 1101(a)(43)(B), (C), (E), (I), or (L) of this title
(!3) and (II) the removal of the alien is appropriate and in
the best interest of the United States; or
(ii) in the case of an alien in the custody of a State (or
a political subdivision of a State), if the chief State
official exercising authority with respect to the
incarceration of the alien determines that (I) the alien is
confined pursuant to a final conviction for a nonviolent
offense (other than an offense described in section
1101(a)(43)(C) or (E) of this title), (II) the removal is
appropriate and in the best interest of the State, and (III)
submits a written request to the Attorney General that such
alien be so removed.
(C) Notice
Any alien removed pursuant to this paragraph shall be
notified of the penalties under the laws of the United States
relating to the reentry of deported aliens, particularly the
expanded penalties for aliens removed under subparagraph (B).
(D) No private right
No cause or claim may be asserted under this paragraph
against any official of the United States or of any State to
compel the release, removal, or consideration for release or
removal of any alien.
(5) Reinstatement of removal orders against aliens illegally
reentering
If the Attorney General finds that an alien has reentered the
United States illegally after having been removed or having
departed voluntarily, under an order of removal, the prior order
of removal is reinstated from its original date and is not
subject to being reopened or reviewed, the alien is not eligible
and may not apply for any relief under this chapter, and the
alien shall be removed under the prior order at any time after
the reentry.
(6) Inadmissible or criminal aliens
An alien ordered removed who is inadmissible under section 1182
of this title, removable under section 1227(a)(1)(C), 1227(a)(2),
or 1227(a)(4) of this title or who has been determined by the
Attorney General to be a risk to the community or unlikely to
comply with the order of removal, may be detained beyond the
removal period and, if released, shall be subject to the terms of
supervision in paragraph (3).
(7) Employment authorization
No alien ordered removed shall be eligible to receive
authorization to be employed in the United States unless the
Attorney General makes a specific finding that -
(A) the alien cannot be removed due to the refusal of all
countries designated by the alien or under this section to
receive the alien, or
(B) the removal of the alien is otherwise impracticable or
contrary to the public interest.
(b) Countries to which aliens may be removed
(1) Aliens arriving at the United States
Subject to paragraph (3) -
(A) In general
Except as provided by subparagraphs (B) and (C), an alien who
arrives at the United States and with respect to whom
proceedings under section 1229a of this title were initiated at
the time of such alien's arrival shall be removed to the
country in which the alien boarded the vessel or aircraft on
which the alien arrived in the United States.
(B) Travel from contiguous territory
If the alien boarded the vessel or aircraft on which the
alien arrived in the United States in a foreign territory
contiguous to the United States, an island adjacent to the
United States, or an island adjacent to a foreign territory
contiguous to the United States, and the alien is not a native,
citizen, subject, or national of, or does not reside in, the
territory or island, removal shall be to the country in which
the alien boarded the vessel that transported the alien to the
territory or island.
(C) Alternative countries
If the government of the country designated in subparagraph
(A) or (B) is unwilling to accept the alien into that country's
territory, removal shall be to any of the following countries,
as directed by the Attorney General:
(i) The country of which the alien is a citizen, subject,
or national.
(ii) The country in which the alien was born.
(iii) The country in which the alien has a residence.
(iv) A country with a government that will accept the alien
into the country's territory if removal to each country
described in a previous clause of this subparagraph is
impracticable, inadvisable, or impossible.
(2) Other aliens
Subject to paragraph (3) -
(A) Selection of country by alien
Except as otherwise provided in this paragraph -
(i) any alien not described in paragraph (1) who has been
ordered removed may designate one country to which the alien
wants to be removed, and
(ii) the Attorney General shall remove the alien to the
country the alien so designates.
(B) Limitation on designation
An alien may designate under subparagraph (A)(i) a foreign
territory contiguous to the United States, an adjacent island,
or an island adjacent to a foreign territory contiguous to the
United States as the place to which the alien is to be removed
only if the alien is a native, citizen, subject, or national
of, or has resided in, that designated territory or island.
(C) Disregarding designation
The Attorney General may disregard a designation under
subparagraph (A)(i) if -
(i) the alien fails to designate a country promptly;
(ii) the government of the country does not inform the
Attorney General finally, within 30 days after the date the
Attorney General first inquires, whether the government will
accept the alien into the country;
(iii) the government of the country is not willing to
accept the alien into the country; or
(iv) the Attorney General decides that removing the alien
to the country is prejudicial to the United States.
(D) Alternative country
If an alien is not removed to a country designated under
subparagraph (A)(i), the Attorney General shall remove the
alien to a country of which the alien is a subject, national,
or citizen unless the government of the country -
(i) does not inform the Attorney General or the alien
finally, within 30 days after the date the Attorney General
first inquires or within another period of time the Attorney
General decides is reasonable, whether the government will
accept the alien into the country; or
(ii) is not willing to accept the alien into the country.
(E) Additional removal countries
If an alien is not removed to a country under the previous
subparagraphs of this paragraph, the Attorney General shall
remove the alien to any of the following countries:
(i) The country from which the alien was admitted to the
United States.
(ii) The country in which is located the foreign port from
which the alien left for the United States or for a foreign
territory contiguous to the United States.
(iii) A country in which the alien resided before the alien
entered the country from which the alien entered the United
States.
(iv) The country in which the alien was born.
(v) The country that had sovereignty over the alien's
birthplace when the alien was born.
(vi) The country in which the alien's birthplace is located
when the alien is ordered removed.
(vii) If impracticable, inadvisable, or impossible to
remove the alien to each country described in a previous
clause of this subparagraph, another country whose government
will accept the alien into that country.
(F) Removal country when United States is at war
When the United States is at war and the Attorney General
decides that it is impracticable, inadvisable, inconvenient, or
impossible to remove an alien under this subsection because of
the war, the Attorney General may remove the alien -
(i) to the country that is host to a government in exile of
the country of which the alien is a citizen or subject if the
government of the host country will permit the alien's entry;
or
(ii) if the recognized government of the country of which
the alien is a citizen or subject is not in exile, to a
country, or a political or territorial subdivision of a
country, that is very near the country of which the alien is
a citizen or subject, or, with the consent of the government
of the country of which the alien is a citizen or subject, to
another country.
(3) Restriction on removal to a country where alien's life or
freedom would be threatened
(A) In general
Notwithstanding paragraphs (1) and (2), the Attorney General
may not remove an alien to a country if the Attorney General
decides that the alien's life or freedom would be threatened in
that country because of the alien's race, religion,
nationality, membership in a particular social group, or
political opinion.
(B) Exception
Subparagraph (A) does not apply to an alien deportable under
section 1227(a)(4)(D) of this title or if the Attorney General
decides that -
(i) the alien ordered, incited, assisted, or otherwise
participated in the persecution of an individual because of
the individual's race, religion, nationality, membership in a
particular social group, or political opinion;
(ii) the alien, having been convicted by a final judgment
of a particularly serious crime is a danger to the community
of the United States;
(iii) there are serious reasons to believe that the alien
committed a serious nonpolitical crime outside the United
States before the alien arrived in the United States; or
(iv) there are reasonable grounds to believe that the alien
is a danger to the security of the United States.
For purposes of clause (ii), an alien who has been convicted of
an aggravated felony (or felonies) for which the alien has been
sentenced to an aggregate term of imprisonment of at least 5
years shall be considered to have committed a particularly
serious crime. The previous sentence shall not preclude the
Attorney General from determining that, notwithstanding the
length of sentence imposed, an alien has been convicted of a
particularly serious crime. For purposes of clause (iv), an
alien who is described in section 1227(a)(4)(B) of this title
shall be considered to be an alien with respect to whom there
are reasonable grounds for regarding as a danger to the
security of the United States.
(c) Removal of aliens arriving at port of entry
(1) Vessels and aircraft
An alien arriving at a port of entry of the United States who
is ordered removed either without a hearing under section
1225(b)(1) or 1225(c) of this title or pursuant to proceedings
under section 1229a of this title initiated at the time of such
alien's arrival shall be removed immediately on a vessel or
aircraft owned by the owner of the vessel or aircraft on which
the alien arrived in the United States, unless -
(A) it is impracticable to remove the alien on one of those
vessels or aircraft within a reasonable time, or
(B) the alien is a stowaway -
(i) who has been ordered removed in accordance with section
1225(a)(1) of this title,
(ii) who has requested asylum, and
(iii) whose application has not been adjudicated or whose
asylum application has been denied but who has not exhausted
all appeal rights.
(2) Stay of removal
(A) In general
The Attorney General may stay the removal of an alien under
this subsection if the Attorney General decides that -
(i) immediate removal is not practicable or proper; or
(ii) the alien is needed to testify in the prosecution of a
person for a violation of a law of the United States or of
any State.
(B) Payment of detention costs
During the period an alien is detained because of a stay of
removal under subparagraph (A)(ii), the Attorney General may
pay from the appropriation "Immigration and Naturalization
Service - Salaries and Expenses" -
(i) the cost of maintenance of the alien; and
(ii) a witness fee of $1 a day.
(C) Release during stay
The Attorney General may release an alien whose removal is
stayed under subparagraph (A)(ii) on -
(i) the alien's filing a bond of at least $500 with
security approved by the Attorney General;
(ii) condition that the alien appear when required as a
witness and for removal; and
(iii) other conditions the Attorney General may prescribe.
(3) Costs of detention and maintenance pending removal
(A) In general
Except as provided in subparagraph (B) and subsection (d)
(!4) of this section, an owner of a vessel or aircraft bringing
an alien to the United States shall pay the costs of detaining
and maintaining the alien -
(i) while the alien is detained under subsection (d)(1) of
this section, and
(ii) in the case of an alien who is a stowaway, while the
alien is being detained pursuant to -
(I) subsection (d)(2)(A) or (d)(2)(B)(i) of this section,
(II) subsection (d)(2)(B)(ii) or (iii) of this section
for the period of time reasonably necessary for the owner
to arrange for repatriation or removal of the stowaway,
including obtaining necessary travel documents, but not to
extend beyond the date on which it is ascertained that such
travel documents cannot be obtained from the country to
which the stowaway is to be returned, or
(III) section 1225(b)(1)(B)(ii) of this title, for a
period not to exceed 15 days (excluding Saturdays, Sundays,
and holidays) commencing on the first such day which begins
on the earlier of 72 hours after the time of the initial
presentation of the stowaway for inspection or at the time
the stowaway is determined to have a credible fear of
persecution.
(B) Nonapplication
Subparagraph (A) shall not apply if -
(i) the alien is a crewmember;
(ii) the alien has an immigrant visa;
(iii) the alien has a nonimmigrant visa or other
documentation authorizing the alien to apply for temporary
admission to the United States and applies for admission not
later than 120 days after the date the visa or documentation
was issued;
(iv) the alien has a reentry permit and applies for
admission not later than 120 days after the date of the
alien's last inspection and admission;
(v)(I) the alien has a nonimmigrant visa or other
documentation authorizing the alien to apply for temporary
admission to the United States or a reentry permit;
(II) the alien applies for admission more than 120 days
after the date the visa or documentation was issued or after
the date of the last inspection and admission under the
reentry permit; and
(III) the owner of the vessel or aircraft satisfies the
Attorney General that the existence of the condition relating
to inadmissibility could not have been discovered by
exercising reasonable care before the alien boarded the
vessel or aircraft; or
(vi) the individual claims to be a national of the United
States and has a United States passport.
(d) Requirements of persons providing transportation
(1) Removal at time of arrival
An owner, agent, master, commanding officer, person in charge,
purser, or consignee of a vessel or aircraft bringing an alien
(except an alien crewmember) to the United States shall -
(A) receive an alien back on the vessel or aircraft or
another vessel or aircraft owned or operated by the same
interests if the alien is ordered removed under this part; and
(B) take the alien to the foreign country to which the alien
is ordered removed.
(2) Alien stowaways
An owner, agent, master, commanding officer, charterer, or
consignee of a vessel or aircraft arriving in the United States
with an alien stowaway -
(A) shall detain the alien on board the vessel or aircraft,
or at such place as the Attorney General shall designate, until
completion of the inspection of the alien by an immigration
officer;
(B) may not permit the stowaway to land in the United States,
except pursuant to regulations of the Attorney General
temporarily -
(i) for medical treatment,
(ii) for detention of the stowaway by the Attorney General,
or
(iii) for departure or removal of the stowaway; and
(C) if ordered by an immigration officer, shall remove the
stowaway on the vessel or aircraft or on another vessel or
aircraft.
The Attorney General shall grant a timely request to remove the
stowaway under subparagraph (C) on a vessel or aircraft other
than that on which the stowaway arrived if the requester has
obtained any travel documents necessary for departure or
repatriation of the stowaway and removal of the stowaway will not
be unreasonably delayed.
(3) Removal upon order
An owner, agent, master, commanding officer, person in charge,
purser, or consignee of a vessel, aircraft, or other
transportation line shall comply with an order of the Attorney
General to take on board, guard safely, and transport to the
destination specified any alien ordered to be removed under this
chapter.
(e) Payment of expenses of removal
(1) Costs of removal at time of arrival
In the case of an alien who is a stowaway or who is ordered
removed either without a hearing under section 1225(a)(1) (!5) or
1225(c) of this title or pursuant to proceedings under section
1229a of this title initiated at the time of such alien's
arrival, the owner of the vessel or aircraft (if any) on which
the alien arrived in the United States shall pay the
transportation cost of removing the alien. If removal is on a
vessel or aircraft not owned by the owner of the vessel or
aircraft on which the alien arrived in the United States, the
Attorney General may -
(A) pay the cost from the appropriation "Immigration and
Naturalization Service - Salaries and Expenses"; and
(B) recover the amount of the cost in a civil action from the
owner, agent, or consignee of the vessel or aircraft (if any)
on which the alien arrived in the United States.
(2) Costs of removal to port of removal for aliens admitted or
permitted to land
In the case of an alien who has been admitted or permitted to
land and is ordered removed, the cost (if any) of removal of the
alien to the port of removal shall be at the expense of the
appropriation for the enforcement of this chapter.
(3) Costs of removal from port of removal for aliens admitted or
permitted to land
(A) Through appropriation
Except as provided in subparagraph (B), in the case of an
alien who has been admitted or permitted to land and is ordered
removed, the cost (if any) of removal of the alien from the
port of removal shall be at the expense of the appropriation
for the enforcement of this chapter.
(B) Through owner
(i) In general
In the case of an alien described in clause (ii), the cost
of removal of the alien from the port of removal may be
charged to any owner of the vessel, aircraft, or other
transportation line by which the alien came to the United
States.
(ii) Aliens described
An alien described in this clause is an alien who -
(I) is admitted to the United States (other than lawfully
admitted for permanent residence) and is ordered removed
within 5 years of the date of admission based on a ground
that existed before or at the time of admission, or
(II) is an alien crewman permitted to land temporarily
under section 1282 of this title and is ordered removed
within 5 years of the date of landing.
(C) Costs of removal of certain aliens granted voluntary
departure
In the case of an alien who has been granted voluntary
departure under section 1229c of this title and who is
financially unable to depart at the alien's own expense and
whose removal the Attorney General deems to be in the best
interest of the United States, the expense of such removal may
be paid from the appropriation for the enforcement of this
chapter.
(f) Aliens requiring personal care during removal
(1) In general
If the Attorney General believes that an alien being removed
requires personal care because of the alien's mental or physical
condition, the Attorney General may employ a suitable person for
that purpose who shall accompany and care for the alien until the
alien arrives at the final destination.
(2) Costs
The costs of providing the service described in paragraph (1)
shall be defrayed in the same manner as the expense of removing
the accompanied alien is defrayed under this section.
(g) Places of detention
(1) In general
The Attorney General shall arrange for appropriate places of
detention for aliens detained pending removal or a decision on
removal. When United States Government facilities are unavailable
or facilities adapted or suitably located for detention are
unavailable for rental, the Attorney General may expend from the
appropriation "Immigration and Naturalization Service - Salaries
and Expenses", without regard to section 5 of title 41, amounts
necessary to acquire land and to acquire, build, remodel, repair,
and operate facilities (including living quarters for immigration
officers if not otherwise available) necessary for detention.
(2) Detention facilities of the Immigration and Naturalization
Service
Prior to initiating any project for the construction of any new
detention facility for the Service, the Commissioner shall
consider the availability for purchase or lease of any existing
prison, jail, detention center, or other comparable facility
suitable for such use.
(h) Statutory construction
Nothing in this section shall be construed to create any
substantive or procedural right or benefit that is legally
enforceable by any party against the United States or its agencies
or officers or any other person.
(i) Incarceration
(1) If the chief executive officer of a State (or, if
appropriate, a political subdivision of the State) exercising
authority with respect to the incarceration of an undocumented
criminal alien submits a written request to the Attorney General,
the Attorney General shall, as determined by the Attorney General -
(A) enter into a contractual arrangement which provides for
compensation to the State or a political subdivision of the
State, as may be appropriate, with respect to the incarceration
of the undocumented criminal alien; or
(B) take the undocumented criminal alien into the custody of
the Federal Government and incarcerate the alien.
(2) Compensation under paragraph (1)(A) shall be the average cost
of incarceration of a prisoner in the relevant State as determined
by the Attorney General.
(3) For purposes of this subsection, the term "undocumented
criminal alien" means an alien who -
(A) has been convicted of a felony or two or more misdemeanors;
and
(B)(i) entered the United States without inspection or at any
time or place other than as designated by the Attorney General;
(ii) was the subject of exclusion or deportation proceedings at
the time he or she was taken into custody by the State or a
political subdivision of the State; or
(iii) was admitted as a nonimmigrant and at the time he or she
was taken into custody by the State or a political subdivision of
the State has failed to maintain the nonimmigrant status in which
the alien was admitted or to which it was changed under section
1258 of this title, or to comply with the conditions of any such
status.
(4)(A) In carrying out paragraph (1), the Attorney General shall
give priority to the Federal incarceration of undocumented criminal
aliens who have committed aggravated felonies.
(B) The Attorney General shall ensure that undocumented criminal
aliens incarcerated in Federal facilities pursuant to this
subsection are held in facilities which provide a level of security
appropriate to the crimes for which they were convicted.
(5) There are authorized to be appropriated such sums as may be
necessary to carry out this subsection in fiscal years 2003 and
2004.
(6) To the extent of available appropriations, funds otherwise
made available under this section with respect to a State (or
political subdivision, including a municipality) for incarceration
of an undocumented criminal alien may, at the discretion of the
recipient of the funds, be used for the costs of imprisonment of
such alien in a State, local, or municipal prison or jail.
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