Notes on 8 U.S.C. § 1226 : US Code - Notes

Search Notes on 8 U.S.C. § 1226 : US Code - Notes

(June 27, 1952, ch. 477, title II, ch. 4, Sec. 236, 66 Stat. 200;
Pub. L. 101-649, title V, Sec. 504(b), title VI, Sec. 603(a)(12),
Nov. 29, 1990, 104 Stat. 5050, 5083; Pub. L. 102-232, title III,
Sec. 306(a)(5), Dec. 12, 1991, 105 Stat. 1751; Pub. L. 104-208,
div. C, title III, Secs. 303(a), 371(b)(5), Sept. 30, 1996, 110
Stat. 3009-585, 3009-645.)
AMENDMENTS                            
1996 - Pub. L. 104-208, Sec. 303(a), amended section generally.
Prior to amendment, section consisted of subsecs. (a) to (e)
related to proceedings to determine whether aliens detained under
section 1225 of this title should be allowed to enter or should be
excluded and deported.
Subsecs. (a) to (d). Pub. L. 104-208, Sec. 371(b)(5), substituted
"An immigration judge" for "A special inquiry officer", "an
immigration judge" for "a special inquiry officer", and
"immigration judge" for "special inquiry officer", wherever
appearing.
1991 - Subsec. (e)(1). Pub. L. 102-232 substituted "upon release
of the alien (regardless of whether or not such release is on
parole, supervised release, or probation, and regardless of the
possibility of rearrest or further confinement in respect of the
same offense)" for "upon completion of the alien's sentence for
such conviction".
1990 - Subsec. (d). Pub. L. 101-649, Sec. 603(a)(12), substituted
"has a disease, illness, or addiction which would make the alien
excludable under paragraph (1) of section 1182(a) of this title"
for "is afflicted with a disease specified in section 1182(a)(6) of
this title, or with any mental disease, defect, or disability which
would bring such alien within any of the classes excluded from
admission to the United States under paragraphs (1) to (4) or (5)
of section 1182(a) of this title" and struck out at end "If an
alien is excluded by a special inquiry officer because of the
existence of a physical disease, defect, or disability, other than
one specified in section 1182(a)(6) of this title, the alien may
appeal from the excluding decision in accordance with subsection
(b) of this section, and the provisions of section 1183 of this
title may be invoked."
Subsec. (e). Pub. L. 101-649, Sec. 504(b), added subsec. (e).
EFFECTIVE DATE OF 1996 AMENDMENT                 
Section 303(b) of subtitle A of title III of div. C of Pub. L.
104-208 provided that:
"(1) In general. - The amendment made by subsection (a) [amending
this section] shall become effective on the title III-A effective
date [see section 309 of Pub. L. 104-208, set out as a note under
section 1101 of this title].
"(2) Notification regarding custody. - If the Attorney General,
not later than 10 days after the date of the enactment of this Act
[Sept. 30, 1996], notifies in writing the Committees on the
Judiciary of the House of Representatives and the Senate that there
is insufficient detention space and Immigration and Naturalization
Service personnel available to carry out section 236(c) of the
Immigration and Nationality Act [8 U.S.C. 1226(c)], as amended by
subsection (a), or the amendments made by section 440(c) of Public
Law 104-132 [amending section 1252 of this title], the provisions
in paragraph (3) shall be in effect for a 1-year period beginning
on the date of such notification, instead of such section or such
amendments. [The Attorney General so notified the committees on
Oct. 9, 1996.] The Attorney General may extend such 1-year period
for an additional year if the Attorney General provides the same
notice not later than 10 days before the end of the first 1-year
period. After the end of such 1-year or 2-year periods, the
provisions of such section 236(c) shall apply to individuals
released after such periods.
"(3) Transition period custody rules. - 
"(A) In general. - During the period in which this paragraph is
in effect pursuant to paragraph (2), the Attorney General shall
take into custody any alien who - 
"(i) has been convicted of an aggravated felony (as defined
under section 101(a)(43) of the Immigration and Nationality Act
[8 U.S.C. 1101(a)(43)], as amended by section 321 of this
division),
"(ii) is inadmissible by reason of having committed any
offense covered in section 212(a)(2) of such Act [8 U.S.C.
1182(a)(2)],
"(iii) is deportable by reason of having committed any
offense covered in section 241(a)(2)(A)(ii), (A)(iii), (B),
(C), or (D) of such Act [former 8 U.S.C. 1251(a)(2)(A)(ii),
(A)(iii), (B), (C), (D)] (before redesignation under this
subtitle), or
"(iv) is inadmissible under section 212(a)(3)(B) of such Act
or deportable under section 241(a)(4)(B) of such Act (before
redesignation under this subtitle),
when the alien is released, without regard to whether the alien
is released on parole, supervised release, or probation, and
without regard to whether the alien may be arrested or imprisoned
again for the same offense.
"(B) Release. - The Attorney General may release the alien only
if the alien is an alien described in subparagraph (A)(ii) or
(A)(iii) and - 
"(i) the alien was lawfully admitted to the United States and
satisfies the Attorney General that the alien will not pose a
danger to the safety of other persons or of property and is
likely to appear for any scheduled proceeding, or
"(ii) the alien was not lawfully admitted to the United
States, cannot be removed because the designated country of
removal will not accept the alien, and satisfies the Attorney
General that the alien will not pose a danger to the safety of
other persons or of property and is likely to appear for any
scheduled proceeding."
Amendment by section 371(b)(5) of Pub. L. 104-208 effective Sept.
30, 1996, see section 371(d)(1) of Pub. L. 104-208, set out as a
note under section 1101 of this title.
EFFECTIVE DATE OF 1991 AMENDMENT                 
Amendment by Pub. L. 102-232 effective as if included in the
enactment of the Immigration Act of 1990, Pub. L. 101-649, see
section 310(1) of Pub. L. 102-232, set out as a note under section
1101 of this title.
EFFECTIVE DATE OF 1990 AMENDMENT                 
Amendment by section 603(a)(12) of Pub. L. 101-649 applicable to
individuals entering United States on or after June 1, 1991, see
section 601(e)(1) of Pub. L. 101-649, 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.
IDENTIFICATION OF CERTAIN DEPORTABLE ALIENS AWAITING ARRAIGNMENT 
Pub. L. 105-141, Dec. 5, 1997, 111 Stat. 2647, provided that:
"SECTION 1. PROGRAM OF IDENTIFICATION OF CERTAIN DEPORTABLE
ALIENS AWAITING ARRAIGNMENT.
"(a) Establishment of Program. - Not later than 6 months after
the date of the enactment of this Act [Dec. 5, 1997], and subject
to such amounts as are provided in appropriations Acts, the
Attorney General shall establish and implement a program to
identify, from among the individuals who are incarcerated in local
governmental incarceration facilities prior to arraignment on
criminal charges, those individuals who are within 1 or more of the
following classes of deportable aliens:
"(1) Aliens unlawfully present in the United States.
"(2) Aliens described in paragraph (2) or (4) of section 237(a)
of the Immigration and Nationality Act [8 U.S.C. 1227(a)(2), (4)]
(as redesignated by section 305(a)(2) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996).
"(b) Description of Program. - The program authorized by
subsection (a) shall include - 
"(1) the detail, to each incarceration facility selected under
subsection (c), of at least one employee of the Immigration and
Naturalization Service who has expertise in the identification of
aliens described in subsection (a); and
"(2) provision of funds sufficient to provide for - 
"(A) the detail of such employees to each selected facility
on a full-time basis, including the portions of the day or
night when the greatest number of individuals are incarcerated
prior to arraignment;
"(B) access for such employees to records of the Service and
other Federal law enforcement agencies that are necessary to
identify such aliens; and
"(C) in the case of an individual identified as such an
alien, pre-arraignment reporting to the court regarding the
Service's intention to remove the alien from the United States.
"(c) Selection of Facilities. - 
"(1) In general. - The Attorney General shall select for
participation in the program each incarceration facility that
satisfies the following requirements:
"(A) The facility is owned by the government of a local
political subdivision described in clause (i) or (ii) of
subparagraph (C).
"(B) Such government has submitted a request for such
selection to the Attorney General.
"(C) The facility is located - 
"(i) in a county that is determined by the Attorney General
to have a high concentration of aliens described in
subsection (a); or
"(ii) in a city, town, or other analogous local political
subdivision, that is determined by the Attorney General to
have a high concentration of such aliens (but only in the
case of a facility that is not located in a county).
"(D) The facility incarcerates or processes individuals prior
to their arraignment on criminal charges.
"(2) Number of qualifying subdivisions. - For any fiscal year,
the total number of local political subdivisions determined under
clauses (i) and (ii) of paragraph (1)(C) to meet the standard in
such clauses shall be the following:
"(A) For fiscal year 1999, not less than 10 and not more than
25.
"(B) For fiscal year 2000, not less than 25 and not more than
50.
"(C) For fiscal year 2001, not more than 75.
"(D) For fiscal year 2002, not more than 100.
"(E) For fiscal year 2003 and subsequent fiscal years, 100,
or such other number of political subdivisions as may be
specified in appropriations Acts.
"(3) Facilities in interior states. - For any fiscal year, of
the local political subdivisions determined under clauses (i) and
(ii) of paragraph (1)(C) to meet the standard in such clauses,
not less than 20 percent shall be in States that are not
contiguous to a land border.
"(4) Treatment of certain facilities. - All of the
incarceration facilities within the county of Orange, California,
and the county of Ventura, California, that are owned by the
government of a local political subdivision, and satisfy the
requirements of paragraph (1)(D), shall be selected for
participation in the program.
"SEC. 2. STUDY AND REPORT.
"Not later than 1 year after the date of the enactment of this
Act [Dec. 5, 1997], the Attorney General shall complete a study,
and submit a report to the Congress, concerning the logistical and
technological feasibility of implementing the program under section
1 in a greater number of locations than those selected under such
section through - 
"(1) the assignment of a single Immigration and Naturalization
Service employee to more than 1 incarceration facility; and
"(2) the development of a system to permit the Attorney General
to conduct off-site verification, by computer or other electronic
means, of the immigration status of individuals who are
incarcerated in local governmental incarceration facilities prior
to arraignment on criminal charges."
CRIMINAL ALIEN TRACKING CENTER                  
Section 130002 of Pub. L. 103-322, as amended by Pub. L. 104-132,
title IV, Sec. 432, Apr. 24, 1996, 110 Stat. 1273; Pub. L. 104-208,
div. C, title III, Secs. 308(g)(5)(B), 326, 327, Sept. 30, 1996,
110 Stat. 3009-623, 3009-630, provided that:
"(a) Operation and Purpose. - The Commissioner of Immigration and
Naturalization shall, under the authority of section 236(d) of the
Immigration and Nationality Act [8 U.S.C. 1226(d)] operate a
criminal alien identification system. The criminal alien
identification system shall be used to assist Federal, State, and
local law enforcement agencies in identifying and locating aliens
who may be subject to removal by reason of their conviction of
aggravated felonies, subject to prosecution under section 275 of
such Act [8 U.S.C. 1325], not lawfully present in the United
States, or otherwise removable. Such system shall include providing
for recording of fingerprint records of aliens who have been
previously arrested and removed into appropriate automated
fingerprint identification systems.
"(b) Authorization of Appropriations. - There are authorized to
be appropriated to carry out this section - 
"(1) $3,400,000 for fiscal year 1996; and
"(2) $5,000,000 for each of fiscal years 1997 through 2001."
(!1) So in original. Probably should be "sentenced".