(a) When an effective date of parole has been set by the Commission, release on that date is conditioned upon continued satisfactory conduct by the prisoner. If a prisoner granted such a date has been found in violation of institution rules by a Discipline Hearing Officer, or the Center Disciplinary Committee, or is alleged to have committed a new criminal act at any time prior to the delivery of the certificate of parole, the Commissioner shall be advised promptly of such information. The prisoner shall not be released until the institution has been notified that no change has been made in the Commission's order to parole. Following receipt of such information, the Commissioner may reopen the case and retard the parole date for up to 90 days without a hearing, or 120 days for a DC Code sentenced prisoner, or schedule a rescission hearing under this section on the next available docket at the institution or on the first docket following return to a federal institution from a community corrections center or a state or local halfway house.
(b) Upon the ordering of a rescission hearing under this section, the prisoner shall be afforded written notice specifying the information to be considered at the hearing. The notice shall further state that the purpose of the hearing will be to decide whether rescission of the parole date is warranted based on the charges listed on the notice, and shall advise the prisoner of the procedural rights described below.
(c) A hearing before a Discipline Hearing Officer, or the Center Disciplinary Committee, resulting in a finding that the prisoner has committed a violation of disciplinary rules may be relied upon by the Commission as conclusive evidence of institutional misconduct. However, the prisoner will be afforded an opportunity to explain any mitigating circumstances, and to present documentary evidence in mitigation of the misconduct at the rescission hearing.
(d) In the case of allegations of new criminal conduct committed prior to delivery of the parole certificate, the Commission may consider documentary evidence and/or written testimony presented by the prisoner, arresting authorities, or other persons.
(e) The prisoner may be represented at a rescission hearing by a person of his choice. The function of the prisoner's representative shall be to offer a statement following the discussion of the charges with the prisoner, and to provide such additional information as the hearing examiner may require. However, the hearing examiner may limit or exclude any irrelevant or repetitious statement.
(f) The evidence upon which the rescission hearing is to be conducted shall be disclosed to the prisoner upon request, subject to the exemptions set forth at § 2.55. If the parole grant is rescinded, the Commission shall furnish to the prisoner a written statement of its findings and the evidence relied upon.
[44 FR 3406, Jan. 16, 1979, as amended at 45 FR 59871, Sept. 11, 1980; 47 FR 2313, Jan. 15, 1982; 54 FR 15173, Apr. 17, 1989; 68 FR 41530, July 14, 2003; 86 FR 51272, Sept. 15, 2021; 87 FR 66550, Nov. 4, 2022]
Notes of Decisions
Cited in
37
cases (
2 in the last 5 years), 1977–2022 · leading case:
Espinoza v. Sabol, 558 F.3d 83 (1st Cir. 2009).
Espinoza v. Sabol, 558 F.3d 83 (1st Cir. 2009).
· cites it 4× “See 28 C.F.R. § 2.34 (a) (1993). “Retard” is a term of art in the parole context and means to postpone a presumptive parole date.”
Ready v. United States Parole Comm'n, 483 F. Supp. 1273 (M.D. Penn. 1980).
· cites it 11× “The uncontroverted affidavit of the Commission’s regional counsel demonstrates that the Commission complied with 28 C.F.R. § 2.34 (b) (1978) in obtaining the approval of the National Commissioners in re-opening Ready’s case.”
Phillip Bruce Christopher v. U. S. Bd. of Parole, 589 F.2d 924 (7th Cir. 1978).
· cites it 3× “Christopher argues therefore that his interest is in fact analogous to a revocation of parole but his conditional liberty and conditional entitlement to release is merely that conditional.”
Drayton v. McCall, 445 F. Supp. 305 (D. Conn. 1978).
· cites it 6× “On December 16, 1977, the Commission held a rescission hearing in accordance with the procedures outlined in the Commission *307 regulations, 28 C.F.R. § 2.34 (1977). 1 Under these regulations, the inmate must be given notice of the charges of misconduct to be discussed at.”
Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978).
· cites it 7× “5 The only evidence presented against ap-pellee was the IDC’s finding of guilt, which under the regulations, 28 C.F.R. § 2.34 (a)(2), could be considered conclusive on the question of institutional misconduct.”
Green v. Nelson, 442 F. Supp. 1047 (D. Conn. 1977).
· cites it 2× “” 28 C.F.R. § 2.34 (a)(1), 42 Fed.Reg. 39817 (Aug.”
Tippins v. Luther, 869 F. Supp. 331 (W.D. Pa. 1994).
· cites it 4× “” 28 C.F.R. § 2.34 (a)(1993). “A grant of parole shall not be deemed to be operative until a certificate of parole has been delivered to the prisoner.”
Albert E. Lanier v. Michael Fair, Etc., 876 F.2d 243 (1st Cir. 1989).
“Second, reconsideration is authorized when new information adverse to the prisoner and unrelated to prison misconduct is discovered, 28 C.F.R. section 2.34(b), such as a prison[er]’s willful concealment or misrepresentation of information.”
Green v. McCall, 822 F.2d 284 (2d Cir. 1987).
· cites it 3× “The court found, as one exam- *287 pie, that in connection with 21 of 44 parole rescission hearings held within the district between February 1983 and February 1985, the Commission had failed to send the parole grantee the advance notice of hearing mandated by both the…”
Alexander v. United States Parole Comm'n, 514 F.3d 1083 (10th Cir. 2008).
“28 (b)(e)-(f); 28 C.F.R. § 2.34 . The fact that the presumptive release date is generally a prerequisite for a pre-release plan suggests that the district court intended the Commission to set that date.”
— 28 C.F.R. § 2.34(b) — 1 case
Albert E. Lanier v. Michael Fair, Etc., 876 F.2d 243 (1st Cir. 1989).
“Second, reconsideration is authorized when new information adverse to the prisoner and unrelated to prison misconduct is discovered, 28 C.F.R. section 2.34(b), such as a prison[er]’s willful concealment or misrepresentation of information.”
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