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Latest ICE Guidance (3/30)

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    Latest ICE Guidance August 16, 2004 March 30, 2004 INFORMATION MEMORANDUM FOR: Michael J. Garcia, Assistant Secretary U.S. Immigration and Customs
    Message 1 of 1 , Aug 16, 2004
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      Latest ICE Guidance
      August 16, 2004

      March 30, 2004


      MEMORANDUM FOR: Michael J. Garcia, Assistant Secretary
      U.S. Immigration and Customs

      Robert Bonner, Commissioner
      U.S. Customs and Border

      FROM: Asa Hutchinson, Undersecretary
      Border and Transportation

      SUBJECT: Guidance On ICE Implementation Of Policy And Practice Changes
      Recommended By The Department Of Justice Inspector General

      On June 2, 2003, the Department of Justice (“DOJ”) Inspector
      General released The September 11 Detainees: A Review Of The Treatment Of Aliens
      Held On Immigration Charges In Connection With The Investigation Of The
      September 11 Attacks (“OIG Report”). The OIG Report contains several
      recommendations directed to the Department of Homeland Security (“DHS”), the Border and
      Transportation Security Directorate (“BTS”) and the Bureau of Immigration and
      Customs Enforcement (“ICE”). Well in advance of the release of the OIG
      Report, DHS, BTS and ICE had initiated a series of actions and policy changes that
      address some of the Report’s findings and recommendations. Over the past
      several months, we have carried out a comprehensive internal review of ICE
      immigration related operations and are instituting further policy and operational
      changes that are responsive to the OIG Report’s recommendations. This Memorandum
      provides guidance on the implementation of these changes in our procedures.

      I. Custody Determinations and Notices to Appear.
      Existing regulations require that, in a case involving a
      warrantless arrest, except in the event of an emergency or other extraordinary
      circumstance, a determination must be made within 48 hours of arrest whether an alien
      is to be continued in custody or released on bond, and whether a Notice to
      Appear and warrant of arrest will be issued. 8 C.F.R. § 287.3(d).
      Regulations also require that an alien be informed of the reasons for his arrest and
      his rights to representation. 8 C.F.R. § 287.3(c). This regulation does not
      define the phrase “emergency or other extraordinary circumstance.” Moreover,
      neither the Immigration and Nationality Act nor regulations require that the
      Notice to Appear be served upon the alien or filed with the Executive Office
      for Immigration Review within specified times, although it was past policy to
      serve a detained alien with the charging document within 72 hours of arrest.
      The following guidance is intended to refine and clarify existing procedures to
      ensure that aliens are promptly notified of their custody status and of the
      immigration charges to be lodged against them, while retaining sufficient
      flexibility in emergency or other extraordinary circumstances.

      A. Initial determination and notification of custody status and
      immigration charges where there is no emergency or other extraordinary circumstance.

      1. Pursuant to 8 C.F.R. § 287.3(d), a custody determination and
      charging decision shall be made within 48 hours of an alien’s arrest.

      2. The initial custody determination will be documented on a
      Notice of Custody Determination (Form I-286) and the Officer making the
      determination will note on the Form I-286 the time and date that the determination is

      3. The Officer will also annotate on the Form I-286 the
      immigration charge or charges of removal that are reasonably believed to be applicable
      and the provision of the Immigration and Nationality Act under which such
      charges are being based.

      4. The completed Form I-286 will be served on the alien within 48
      hours of arrest. The Officer serving the Form I-286 will note on the form the
      time and date of service, and will require the alien to sign the form or
      annotate on the form the alien’s refusal to do so. In instances where the Form
      I-286 is not served within 48 hours, the agent will note an explanation on the
      Form I-286 file copy of the reasons precluding service within this period.

      5. ICE has proposed modifications to Form I-286 to simplify the
      entry of the foregoing information. Until such modifications have been
      implemented, ICE Officers should handwrite on the front of the form “Date and time of
      custody determination _________,” and “Probable charge(s) of

      6. A copy of the served I-286 will be maintained in the alien’s

      B. Initial determination and notification of custody status and
      immigration charges where there is an emergency or other extraordinary circumstance.

      1. Pursuant to 8 C.F.R. § 287.3(d), an initial custody
      determination and charging decision will be made within 48 hours of an alien’s arrest as
      outlined above unless an emergency or other extraordinary circumstance
      requires additional time. In such cases, every effort shall be made to make the
      custody determination and charging decision, and to notify the alien thereof, as
      soon as practicable.

      2. In the event of an emergency or other extraordinary
      circumstance, the Officer shall follow the procedures set out in part I.A. above, except
      for the requirement that a custody determination and charging decision be
      made within 48 hours of arrest, as outlined in B.1.

      3. A memorandum or other written documentation that explains in
      detail the emergency or extraordinary circumstance will be placed in the alien’s

      C. Definition of “emergency or other extraordinary circumstance.” As
      used in 8 C.F.R. § 287.3(d), the phrase “emergency or other extraordinary
      circumstance” is construed to mean:

      1. A significant infrastructure or logistical disruption
      including, but not limited to, disruption caused by an act of terrorism, weather,
      natural catastrophe, power outage, serious transportation emergency or serious
      civil disturbance;

      2. Whenever there is a compelling law enforcement need including,
      but not limited to, an immigration emergency resulting in the influx of large
      numbers of detained aliens that overwhelms agency resources and makes it
      unable to logistically meet the general servicing requirements; or

      3. Individual facts or circumstances unique to the alien
      including, but not limited to, the need for medical care or a particularized compelling
      law enforcement need.

      4. The official making the determination as to whether there is a “
      compelling law enforcement need” shall be at the level of a Special Agent in Charge,
      a Border Protection Chief, a Field Office Director, or an equivalent
      position. This official shall memorialize the decision as required in subparagraph
      B.3. above, and immediately forward that decision to Headquarters. A copy of
      this written decision will be simultaneously provided to ICE’s Principal Legal

      5. Any determination that a “compelling law enforcement need” exists
      shall be reviewed by the official making the determination and the ICE Office of
      the Principal Legal Advisor no later than 30 days after such decision being
      made to determine whether the factors leading to such a determination continue
      to exist.

      D. Service of the Notice to Appear.

      1. The Notice to Appear (NTA) shall be served upon the detained
      alien within 72 hours following arrest, taking into account such factors as
      infrastructure and logistical considerations, the need to obtain conviction
      records and other information related to the alien or immigration charges, the need
      for legal review, and other law enforcement requirements. If the emergency or
      extraordinary circumstances provisions as discussed in sections B and C above
      are activated, service of the NTA shall be made as soon as practicable.

      2. If the detention and/or charging of an alien is on account of
      interest by the Federal Bureau of Investigations for reasons related to the
      national security, local Chief Counsel must approve any national security related
      NTA charges pertaining to any alien. The responsible ICE SAC office will
      coordinate at the earliest possible time with local Chief Counsel, to include
      presenting information that may be used as evidence for sustaining the charges
      presented. The Chief Counsel is responsible for coordinating with the HQ
      National Security Law Division to clear the NTA in a manner that will meet the above
      time guidelines. Once approved, the NTA should be served upon the alien and
      the court.

      3. The Notice to Appear shall be served upon the detained alien
      while the alien is in the custody of the SAC in whose jurisdiction the alien was
      first arrested. No detained alien shall be transferred to another
      jurisdiction prior to service of the Notice to Appear, unless exigent circumstances
      require the alien to be transferred prior to NTA service. In such cases, the SAC
      within whose jurisdiction the alien was first arrested will be responsible for
      ensuring that actual NTA service on the alien is completed in the new area of
      custody as soon as practicable. The arresting bureau shall be responsible
      for ensuring that the NTA is served on the Executive Office of Immigration

      II. Post-Order Custody Reviews.

      All Field Office Directors should be reminded of their requirements in
      ensuring the integrity of the Post Order Custody Review (POCR) process. Following
      the 90-day removal period that carries mandatory post-order detention, the
      continued detention of an alien is governed by 8 CFR § 241.4. Under this section,
      the Field Office Director must review the alien’s case at the conclusion of
      the removal period and determine if the alien is to be released or remain in
      custody. In order to release the alien, the field director must find the alien
      is neither a threat to public safety, nor a flight risk. If these conditions
      are met, the field director should release the alien on an order of
      supervision. If these conditions are not met, that is the alien is deemed a flight risk
      or a threat to public safety, then the Field Office Director may retain
      authority over the case for an additional 90-days. Prior to the conclusion of the
      additional 90-days, the Field Office Director must again review the case to see
      if the alien may be released under 241.4. If the alien is not then released,
      the case must be referred to the Headquarters, Post-Order Detention Unit
      (HQPDU) who will conduct reviews under 8 CFR 241.13 and 241.14 to determine if
      there is a significant likelihood that the alien should be released in the
      reasonably foreseeable future or if the alien has a special circumstance justifying
      continued detention. Additionally, Field Office Directors are reminded to
      elevate cases involving such aliens, which will require HQ DRO’s assistance to
      obtain travel documents at the earliest possible point in the case. I
      understand that at this time, the POCR process under 8 CFR 241.4 and 8 CFR 241.13 is
      under review for possible change that will streamline the process and allow for
      much quicker response by the field offices. Any changes developed to this
      process should be communicated to the field and training on any new procedures
      should be provided.

      Once a case is referred to HQPDU, the case is reviewed, first, pursuant to 8
      CFR 241.13 and then pursuant to 8 CFR 241.14. Under 8 CFR 241.13, if the
      determination is made that there is no significant likelihood that the alien will
      be removed in the reasonably foreseeable future the alien must be released
      from custody. The only way to maintain an alien in custody is to refer the alien
      for further consideration under 8 CFR 241.14 due to special circumstances
      justifying continued detention. However, if HQPDU determines that removal is
      likely in the foreseeable future, the case remains governed by 8 CFR 241.4 and
      HQPDU reviews the case under the same criteria as outlined above.
      Under 8 CFR 241.14, HQPDU can order the continued detention of an
      alien whose removal is not significantly likely in the reasonably foreseeable
      future, if the alien meets any of the following general criteria: highly
      contagious disease that is a threat to public safety; serious adverse foreign
      policy consequences; national security or terrorism concerns; or deemed to be
      specially dangerous.

      III. Coordination of Handling of National Security Cases During
      Period of National Impact

      The OIG Report encouraged enhanced coordination between the Department of
      Homeland Security and the Department of Justice for handling cases in which the
      FBI has expressed interest on account of national security concerns. We are
      currently reviewing and discussing approaches on handling such cases during
      periods of national impact and will provide additional details on the process that
      will be implemented during such periods. As of today, however, the above
      procedures that address some of the coordination issues are effective
      immediately. Please disseminate to your staff and ensure that there is a full
      understanding of these requirements. Local SAC offices can coordinate with their Chief
      Counsel Office on any questions or clarifications that are required.

      ICE personnel and attorneys are directed to independently review
      the individual circumstances of each case in which the FBI requests detention
      solely based upon information regarding an alien’s possible association with
      terrorism. ICE personnel and attorneys must carefully study the underlying
      facts in each case and make assessments as to both the necessity for detention
      and the appropriate conditions of confinement in every case. This will ensure
      that ICE can make the proper recommendations to the immigration courts on bond,
      detention and removal. This independent and individualized assessment is
      essential because ICE attorneys are officers of the court and must have
      confidence in the representations made to the court.

      IV. Limitation on the Applicability of this Guidance

      This Memorandum is intended to provide internal guidance to the operational
      components of the Directorate of Border and Transportation Security. It does
      not, is not intended to, shall not be construed to, and may not be relied upon
      to create any rights, substantive or procedural, enforceable at law by any
      person in any matter, civil or criminal.

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