
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 8USC1226]

 
                     TITLE 8--ALIENS AND NATIONALITY
 
                 CHAPTER 12--IMMIGRATION AND NATIONALITY
 
                       SUBCHAPTER II--IMMIGRATION
 
 Part IV--Inspection, Apprehension, Examination, Exclusion, and Removal
 
Sec. 1226. Apprehension and detention of aliens


(a) Arrest, detention, and release

    On a warrant issued by the Attorney General, an alien may be 
arrested and detained pending a decision on whether the alien is to be 
removed from the United States. Except as provided in subsection (c) of 
this section and pending such decision, the Attorney General--
        (1) may continue to detain the arrested alien; and
        (2) may release the alien on--
            (A) bond of at least $1,500 with security approved by, and 
        containing conditions prescribed by, the Attorney General; or
            (B) conditional parole; but

        (3) may not provide the alien with work authorization (including 
    an ``employment authorized'' endorsement or other appropriate work 
    permit), unless the alien is lawfully admitted for permanent 
    residence or otherwise would (without regard to removal proceedings) 
    be provided such authorization.

(b) Revocation of bond or parole

    The Attorney General at any time may revoke a bond or parole 
authorized under subsection (a) of this section, rearrest the alien 
under the original warrant, and detain the alien.

(c) Detention of criminal aliens

                             (1) Custody

        The Attorney General shall take into custody any alien who--
            (A) is inadmissible by reason of having committed any 
        offense covered in section 1182(a)(2) of this title,
            (B) is deportable by reason of having committed any offense 
        covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) 
        of this title,
            (C) is deportable under section 1227(a)(2)(A)(i) of this 
        title on the basis of an offense for which the alien has been 
        sentence \1\ to a term of imprisonment of at least 1 year, or
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    \1\ So in original. Probably should be ``sentenced''.
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            (D) is inadmissible under section 1182(a)(3)(B) of this 
        title or deportable under section 1227(a)(4)(B) of this title,

    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.

                             (2) Release

        The Attorney General may release an alien described in paragraph 
    (1) only if the Attorney General decides pursuant to section 3521 of 
    title 18 that release of the alien from custody is necessary to 
    provide protection to a witness, a potential witness, a person 
    cooperating with an investigation into major criminal activity, or 
    an immediate family member or close associate of a witness, 
    potential witness, or person cooperating with such an investigation, 
    and the alien 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. A decision relating 
    to such release shall take place in accordance with a procedure that 
    considers the severity of the offense committed by the alien.

(d) Identification of criminal aliens

    (1) The Attorney General shall devise and implement a system--
        (A) to make available, daily (on a 24-hour basis), to Federal, 
    State, and local authorities the investigative resources of the 
    Service to determine whether individuals arrested by such 
    authorities for aggravated felonies are aliens;
        (B) to designate and train officers and employees of the Service 
    to serve as a liaison to Federal, State, and local law enforcement 
    and correctional agencies and courts with respect to the arrest, 
    conviction, and release of any alien charged with an aggravated 
    felony; and
        (C) which uses computer resources to maintain a current record 
    of aliens who have been convicted of an aggravated felony, and 
    indicates those who have been removed.

    (2) The record under paragraph (1)(C) shall be made available--
        (A) to inspectors at ports of entry and to border patrol agents 
    at sector headquarters for purposes of immediate identification of 
    any alien who was previously ordered removed and is seeking to 
    reenter the United States, and
        (B) to officials of the Department of State for use in its 
    automated visa lookout system.

    (3) Upon the request of the governor or chief executive officer of 
any State, the Service shall provide assistance to State courts in the 
identification of aliens unlawfully present in the United States pending 
criminal prosecution.

(e) Judicial review

    The Attorney General's discretionary judgment regarding the 
application of this section shall not be subject to review. No court may 
set aside any action or decision by the Attorney General under this 
section regarding the detention or release of any alien or the grant, 
revocation, or denial of bond or parole.

(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.


    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.''

                  Section Referred to in Other Sections

    This section is referred to in sections 1228, 1368 of this title.
