§ 1537. — Custody and release after removal hearing.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 8USC1537]
TITLE 8--ALIENS AND NATIONALITY
CHAPTER 12--IMMIGRATION AND NATIONALITY
SUBCHAPTER V--ALIEN TERRORIST REMOVAL PROCEDURES
Sec. 1537. Custody and release after removal hearing
(a) Release
(1) In general
Subject to paragraph (2), if the judge decides that an alien
should not be removed, the alien shall be released from custody.
(2) Custody pending appeal
If the Attorney General takes an appeal from such decision, the
alien shall remain in custody, subject to the provisions of section
3142 of title 18.
(b) Custody and removal
(1) Custody
If the judge decides that an alien shall be removed, the alien
shall be detained pending the outcome of any appeal. After the
conclusion of any judicial review thereof which affirms the removal
order, the Attorney General shall retain the alien in custody and
remove the alien to a country specified under paragraph (2).
(2) Removal
(A) In general
The removal of an alien shall be to any country which the
alien shall designate if such designation does not, in the
judgment of the Attorney General, in consultation with the
Secretary of State, impair the obligation of the United States
under any treaty (including a treaty pertaining to extradition)
or otherwise adversely affect the foreign policy of the United
States.
(B) Alternate countries
If the alien refuses to designate a country to which the
alien wishes to be removed or if the Attorney General, in
consultation with the Secretary of State, determines that
removal of the alien to the country so designated would impair a
treaty obligation or adversely affect United States foreign
policy, the Attorney General shall cause the alien to be removed
to any country willing to receive such alien.
(C) Continued detention
If no country is willing to receive such an alien, the
Attorney General may, notwithstanding any other provision of
law, retain the alien in custody. The Attorney General, in
coordination with the Secretary of State, shall make periodic
efforts to reach agreement with other countries to accept such
an alien and at least every 6 months shall provide to the
attorney representing the alien at the removal hearing a written
report on the Attorney General's efforts. Any alien in custody
pursuant to this subparagraph shall be released from custody
solely at the discretion of the Attorney General and subject to
such conditions as the Attorney General shall deem appropriate.
(D) Fingerprinting
Before an alien is removed from the United States pursuant
to this subsection, or pursuant to an order of removal because
such alien is inadmissible under section 1182(a)(3)(B) of this
title, the alien shall be photographed and fingerprinted, and
shall be advised of the provisions of section 1326(b) of this
title.
(c) Continued detention pending trial
(1) Delay in removal
The Attorney General may hold in abeyance the removal of an
alien who has been ordered removed, pursuant to this subchapter, to
allow the trial of such alien on any Federal or State criminal
charge and the service of any sentence of confinement resulting from
such a trial.
(2) Maintenance of custody
Pending the commencement of any service of a sentence of
confinement by an alien described in paragraph (1), such an alien
shall remain in the custody of the Attorney General, unless the
Attorney General determines that temporary release of the alien to
the custody of State authorities for confinement in a State facility
is appropriate and would not endanger national security or public
safety.
(3) Subsequent removal
Following the completion of a sentence of confinement by an
alien described in paragraph (1), or following the completion of
State criminal proceedings which do not result in a sentence of
confinement of an alien released to the custody of State authorities
pursuant to paragraph (2), such an alien shall be returned to the
custody of the Attorney General who shall proceed to the removal of
the alien under this subchapter.
(d) Application of certain provisions relating to escape of prisoners
For purposes of sections 751 and 752 of title 18, an alien in the
custody of the Attorney General pursuant to this subchapter shall be
subject to the penalties provided by those sections in relation to a
person committed to the custody of the Attorney General by virtue of an
arrest on a charge of a felony.
(e) Rights of aliens in custody
(1) Family and attorney visits
An alien in the custody of the Attorney General pursuant to this
subchapter shall be given reasonable opportunity, as determined by
the Attorney General, to communicate with and receive visits from
members of the alien's family, and to contact, retain, and
communicate with an attorney.
(2) Diplomatic contact
An alien in the custody of the Attorney General pursuant to this
subchapter shall have the right to contact an appropriate diplomatic
or consular official of the alien's country of citizenship or
nationality or of any country providing representation services
therefore. The Attorney General shall notify the appropriate
embassy, mission, or consular office of the alien's detention.
(June 27, 1952, ch. 477, title V, Sec. 507, as added Pub. L. 104-132,
title IV, Sec. 401(a), Apr. 24, 1996, 110 Stat. 1266; amended Pub. L.
104-208, div. C, title III, Sec. 308(d)(4)(Q), Sept. 30, 1996, 110 Stat.
3009-619.)
Amendments
1996--Subsec. (b)(2)(D). Pub. L. 104-208 substituted ``removal
because such alien is inadmissible'' for ``exclusion because such alien
is excludable''.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104-208 effective, with certain transitional
provisions, on the first day of the first month beginning more than 180
days after Sept. 30, 1996, see section 309 of Pub. L. 104-208, set out
as a note under section 1101 of this title.
Abolition of Immigration and Naturalization Service and Transfer of
Functions
For abolition of Immigration and Naturalization Service, transfer of
functions, and treatment of related references, see note set out under
section 1551 of this title.
References to Order of Removal Deemed To Include Order of Exclusion and
Deportation
For purposes of carrying out this chapter, any reference in law to
an order of removal is deemed to include a reference to an order of
exclusion and deportation or an order of deportation, see section
309(d)(2) of Pub. L. 104-208, set out in an Effective Date of 1996
Amendments note under section 1101 of this title.
Section Referred to in Other Sections
This section is referred to in section 1535 of this title.
