AILA/BICE COMMITTEE MEETING

Draft Responses of 2:00pm meeting held in Washington, D.C.
At ICE Headquarters on November 12, 2003

Attendees:

ICE – Victor Cerda, Chief of Staff/ICE and Principal Legal Advisor, Barry O’Mellin, Acting Deputy ICE Counsel, Mike Neifach, Principal Legal Advisor’s Chief of Staff/ICE

AILA- Palma Yanni, Denyse Sabagh, Kathleen Walker, Chuck Kuck, David Leopold, Gerry Rovner, Estelle Regolsky, Linda Kenepaske, Patricia Mattos, Jeanne Butterfield, Crystal Williams, Judy Golub

ICE STRUCTURE

1. What is the basic structure of ICE?
    
2. Is there a publicly available organizational chart showing ICE structure i.e. Offices and sub-offices, divisional hierarchy, personnel and titles? If so may we have a copy?
    
3. What are the respective jurisdictions of the five ICE divisions that took effect in June: Investigations; Intelligence; Detention and Removal; Air and Marine Interdiction?
    
4. How are the divisions organized nationally? Do the divisions have equal responsibility over immigration and customs enforcement issues? Is there a cross training program for agents?
    
5. Do the divisions share common enforcement priorities? If so, what are they?
    
6. Over the summer, Michael Garcia gave a speech in which he discussed a unit within the ICE Investigations division that focuses on foreigners who do not comply with registration programs.
   1. What is the name and structure of the unit?
       
   2. Is there a designated officer in charge of the unit? If so who is it?
       
   3. Is there an articulated mission?
       
7. Will the unit focus on all registration mandated by the INA or only special registration programs?
    
8. Is the unit operational at this time? If not when is it expected to become operational?
    
9. What will be its methods of operation? In other words, how will the unit go about investigating foreigners who do not comply with federal registration programs?
    
10. Is the unit only meant to focus on foreigners who may pose a national security risk or all foreigners who don’t comply with registration requirements?
     
11. The immigration laws are very complex. What training programs are in place or planned for agents who will be charged with ICE’s new missions?
     
12. Please explain the Hartford "pilot program" (detention of aliens who lose at their merits hearing). Does this program apply to all aliens? Is this program expected to be implemented as a national policy? What is the objective of such a policy?
    
    Mr. Cerda began the meeting by giving his summary of the current situation. He noted that some permanent Special Agent in Charge (“SAC”) positions have been named (e.g. Chicago) and that more would be forthcoming. ICE has more than 15,000 employees.
    
    The Head of Investigations at headquarters is John Clark, the former Miami Legacy Customs SAC. He noted that the majority of Interim SACs were from Legacy Customs. Their approach was to name Assistant SACs from Legacy INS when the Interim SAC came from Legacy Customs and vice versa.
    
    At ICE headquarters, the largest office is the Office of Investigations (www.bice.gov/graphics/about/organization/index.htm), which is supported by four divisions: the National Security Investigations Division, the Financial Investigations Division, the Smuggling/Public Safety Division, and the Investigative Services Division. The National Security Investigations Division oversees programs designed to protect national security by combating terrorism and preventing the illegal importation, exportation, and transfer of Weapons of Mass Destruction, arms and munitions, and critical technology. Gary Lang has been named the Head of this National Security Investigations Division. This Division is supported by three branches: the Strategic Investigations Branch, the National Security Branch, and the Compliance Enforcement Branch. The Compliance Enforcement Branch focuses on the apprehension and identification of those individuals who have violated the purpose and terms of their admission to the United States as well as those who may be threats to U.S. national security.
    
    The Compliance Enforcement Branch does the follow-up investigative work on SEVIS, NSEERS, and US-VISIT. International Affairs is also apparently being moved to ICE within this branch. We tried to clarify whether the Office of International Enforcement, which houses the visa policy function under the Memorandum of Understanding between the Department of State and the Department of Homeland Security as of September 30, 2003, would be moving to this Branch. Apparently, it is anticipated, but perhaps not final. Mr. Cerda was not sure if the waivers adjudication portion of International Affairs would remain be placed with U.S. Citizenship and Immigration Services (“CIS”) or ICE. He indicated that he would inquire into the matter. CIS will continue to deal with adoption and refugee matters.
    
    Mr. Cerda made some observations that a unit within this Branch was to be dedicated to investigating known SEVIS and NSEERS violators. He noted that these individuals, post investigation, may be taken into custody and issued Notices to Appear (“NTA”s). ICE will determine detention and bond on these matters on a case by case basis. Their intent is not to detain all such violators, but each SAC office will have the latitude to evaluate bed space in the detention facility to determine the detention issue. He gave an example that if the person subject to detention had a USCIS interview the following month, then such person was a potential candidate for release on their own recognizance. He also noted that the decision to issue an NTA would be made on a case-by-case basis.
    
    Committee members provided examples of late NSEERS applicants appearing late to re-register and being told that if they were late, then the officer had no discretion to do anything other than to issue an NTA and disallow bond. Mr. Cerda indicated that no such directive existed, but that he would review the matter.
    
    In responding to comments about Legacy Customs SACS or Interim SACs deciding not to exercise discretion and not to defer to Assistant SACS or Interim SACs from Legacy INS, Mr. Cerda indicated that he believed Legacy Customs officers routinely deferred to Legacy INS officer on immigration related matters.
    
    The Office of Investigations has two major initiatives with Law Enforcement:
     

1. The Law Enforcement Support Center (“LESC”), which serves as a national enforcement operations coordinating center by providing timely immigration status and identity information to local, state, and Federal law enforcement agencies on aliens suspected, arrested or convicted of criminal activity. The LESC operates 24 hours a day, 7 days a week assisting enforcement agencies with information gathered from eight service databases, the National Crime Information Center (“NCIC”), the Interstate Identification Index (“III”), and other state criminal history indices.
    
2. The Forensic Document Laboratory, which provides forensic support to Federal, state, and local law enforcement in matters relating to documents, fingerprints, and other evidence.
    

The Smuggling/Public Safety Division will be headed by Joe Green of Legacy INS. This Division has six branches: Commercial Fraud, Critical Infrastructure Protection, Smuggling/Human Trafficking, Contraband Smuggling, Identity and Benefits Fraud, and Human Rights Violations.

This organizational structure is reflected on the U.S. Immigration and Customs Enforcement (“ICE”) website at www.bice.gov. The other Offices are: the Office of Detention and Removal, the Office of Air and Marine Operations, the Office of Federal Protective Service, the Office of Intelligence, and as of November 1, 2003, the Federal Air Marshal Service.

Mr. Cerda noted that Operation Predator had resulted in the removal of 1100 individuals based on work in Miami and New York. He also used Operation Cornerstone (described on website and which focuses on money laundering issues), which is a predominantly Customs-based operation as an example of how the immigration and customs laws are being reviewed jointly to use all legal available options from an enforcement perspective. For example, there are obvious immigration law violation considerations in typical money laundering situations as well as in the import/export of sensitive technology. U.S. attorneys continue to prosecute all federal criminal charges, but ICE attorneys have more involvement in such actions than in the past to allow better coordination.

It appears that ICE or CBP have the authority to make initial bond determinations. Within ICE, Detention and Removal should always be evaluating available bed space and the case facts to make a detention/bond determination. There appears to be some confusion with respect to whether, if ICE is unable to hold an individual in the first instance, it can re-determine bond subsequent to a bond re-determination by an immigration judge.

We were advised that Tony Tangeman was in charge of the Hartford Project. This project is an experimental project in which ICE detains non-citizens subsequent to an adverse decision by an immigration judge on the merits of their removal case. Mr. Cerda also noted that ICE was considering various alternatives, such as Electronic Monitoring (apparently ICE does not sanction the “tethering” term) to detention in non-mandatory detention cases. Mr. Cerda stated that mandatory detention cases will not be considered for the Electronic Monitoring Project. ICE is also focused on accounting for everyone who is subject to a final removal order and removing them. In order to reach this goal, they are constantly addressing bed space and resource issues. To evaluate a project’s success, they consider whether people are reporting, whether the cases are moving, and the time bed space is occupied. As to the Electronic Monitoring Project going on in Florida an elsewhere, Mr. Cerda noted that an employee in Detention and Removal would not have even contemplated such an option five years ago. There was a discussion about the use of electronic monitoring devices as an alternative method of “detention” in the cases of non-citizens subject to mandatory detention At this point, the idea is not on the table, but the point was by ICE that this option was considered unacceptable in the criminal context. A discussion also occurred as to using such electronic monitoring at least for those not convicted of crimes of violence. Jeanne Butterfield noted that the methodology used by investigations to subject individuals to electronic monitoring should be reviewed. She gave examples of excessive intimidation tactics used in some field sectors.

As to the bond issue, Barry O’Mellin noted that there was BIA precedent which provides authority for ICE’s unilateral redetermination of bond prior or subsequent to an Immigration Judge’s decision on the merits of a case. More specifically Mr. O’Mellin stated that stated that ICE can revoke the bond previously determined by the Immigration Judge without going back to the Immigration Judge. We requested a copy of the case.

A discussion ensued about the administrative delays being experienced when all parties agree to removal. Examples were given by the committee of three to four week delays or longer. Mr. Cerda indicated that they certainly did not support such delays and would try to look into the matter. He requested the committee to provide A numbers of case examples. The committee will be soliciting such examples to be forwarded to Mr. Cerda and his deputy for potential action. Examples were also given as to the Hartford project wherein the IJ had granted Voluntary Departure as the sole form of relief requested and the individual was then taken into custody.

Mr. Cerda did indicate that numerous detention options were being considered, even some type of parole arrangement in non-mandatory detention cases.

LEGAL REPRESENTATION OF ICE

13. In the past few months government counsel in immigration court have started to refer to themselves as Chief Counsel, Bureau of Customs and Immigration Enforcement, whereas earlier they had identified themselves as counsel for DHS. Who is the legal representative of ICE? Trial Attorneys are assigned to ICE. CIS has its own legal counsel.
     
14. Do the Chief Counsel’s represent any other agencies or divisions of DHS? It remains unclear as to whether the chief counsels represent CBP. It appears that ICE counsel does not advise CIS offices. We will seek further clarification.

DATA BASE

Information about an alien may be contained in a variety of databases, which are “owned” by various agencies, and accessible to a variety of others. As with any database, some information may be input incorrectly, subject to being interpreted differently, or outdated and no longer relevant. In addition, aliens with the same very common name may be incorrectly identified. We have also found that criminal aliens will sometimes give another alien’s name when arrested. As information sharing increases, the potential increases that an individual may become subject to lengthy, unnecessary and/or repeated interrogations sometimes leading to detention or denial of benefits because of erroneous information. AILA would like to work with ICE to develop means to identify and eliminate erroneous information.

15. What databases do you check when encountering a foreign national within the borders of the U.S.?
     
16. Are the databases being ‘purged” of errors when BCIS, BCBP, BICE, DOS or other participating agencies identify these errors? If so, is there coordination with any other databases from which information may have been drawn? Would ICE consider working with fellow agencies in light of Homeland Security goals to create one methodology for the public to use in submitting database requests for database corrections or purges of incorrect information?
     
17. Where checks have to be redone frequently, such as IBIS checks which are good for only 35 days, would it be possible (and would it save time) to check from the date of completion of the last check rather than always going back to the beginning?
     
18. How should an attorney bring errors concerning information in the databases to government attention? How long does it take for such corrections to be implemented?
    
    Unfortunately, the response to this line of questioning did not result in any new information. Bottom line, as to database removal, Mr. Cerda noted that the information must be removed by the entity/agency entering the information. We noted that we understood that one of the benefits of the merging of the agencies with the Department of Homeland Security was to create an easier process for such corrective actions, but we were not given hope of any change at this level by Mr. Cerda. It would seem that the LESC could provide assistance. We will need to follow-up on this issue with CBP and CIS as well as ICE.

ADJUSTMENT OF STATUS/NTA (NOT ADDRESSED)

19. What is ICE’s the policy regarding placing individuals in proceedings that have I-485s pending?
     
20. What are the criteria used to determine if someone should be placed in proceedings with an I-485 pending before BCIS?
     
21. How is that criteria disseminated to the field?
     
22. In the case of Visa Waiver applicants, how is ICE handling those cases when it encounters an individual who has properly filed an AOS? This is particularly important since the regulations allow them to file for AOS under certain circumstances, but DHS takes the position that they are not entitled to a removal hearing so they could conceivably face summary removal if placed in proceedings.

JOINT MOTIONS TO REOPEN REMOVAL PROCEEDINGS (NOT ADDRESSED)

In his memo of 5/17/2001 former General Counsel for INS, Bo Cooper, modified the INS position regarding "exceptional and compelling circumstances" in addressing motions to reopen for consideration of adjustment of status applications. In his memo, Bo Cooper stated:

"This office has determined that applying the ‘exceptional and compelling circumstances’ standard to motions to reopen for consideration of adjustment of status, will no longer advance significant law enforcement objectives. The INS may join in a motion to reopen (or a motion to the BIA to remand) for consideration of adjustment of status pursuant to INA 245 if such adjustment of status was not available to the respondent at the former hearing, the alien is statutorily eligible for adjustment of status, and the respondent merits a favorable exercise of discretion."

Attorneys across the country have reported that many local Chief Counsels are generally not following the guidelines set forth in the memo, but are instead refusing to join in most joint motion requests for aliens who are eligible for adjustment and are not statutorily barred from adjustment. The Chief Counsels seem to be applying the old "exceptional and compelling circumstances" standards, rather than the new standards set forth in the 5/17/2001 memo. Most requests for joint motions involve aliens who have overstayed their voluntary departure time. Even if the alien is otherwise eligible because of the passage of time, and the only negative factor is that the alien has overstayed his voluntary departure time and all other factors are positive, the chief counsels are refusing to join in the motions. More often than not the only reason given for the refusal is that the alien has overstayed his voluntary departure time. This violates the spirit and intent of the Bo Cooper memo.

23. Why are Chief Counsels not following the guidelines set forth in the Bo Cooper memo?
     
24. What standards are the Chief Counsels using in deciding whether to join in a request for a joint motion?
     
25. If General Counsel has issued another memo regarding joint motions, may we have a copy of it?

EMPLOYER COMPLIANCE (NOT ADDRESSED)

26. When does ICE expect to issue final regulations regarding the proposed Employer Sanctions rules published in 1998?
     
27. May employers continue to rely on the published Handbook until the final regulations are issued?
     
28. Does ICE foresee any changes in its enforcement of the employer sanctions provisions as a result of the reorganization of the INS? If so, what are those changes?
     
29. Does ICE have any plans to restart on site inspections to verify employers' compliance with the Employer Sanctions provisions? If so, what particular types of employers will it be concentrating on?

AR-11 (NOT ADDRESSED)

30. When an AR-11 is filed in KY, what procedure is followed by the KY location: Is the information entered into BCIS-ICE databases, and, if so, which one(s).
     
31. How long after receipt of the AR-11 at KY can we expect the new address to be entered? Upon data entry, do all offices then have access to the new address?
     
32. Is the physical AR-11 retained in the alien's A File?
     
33. Why is it necessary to send copies of the AR-11 to a District Office/Service Center in which an Application/Petition is pending?
     
34. We can send the AR-11 via certified mail and have proof that the AR-11 was received, but how can counsel request proof that the information was actually entered?
     
35. If ICE, in the course of an investigation, believes an alien has not filed an AR-11, what action will ICE take? What discretion does an ICE agent have in this situation? Will the alien be given an opportunity to file, if there appears to be no intent on the alien's part to deceive the government by the move, or will there be an automatic referral to the EOIR.?

SPECIAL REGISTRATION/NSEERS

36. A few months ago Tom Ridge made remarks hinting at the end of Special Registration, to be replaced by a U.S. Visitor and Immigration Status Indication Technology System, also known as “US Visit”.
    1. What is the timeline for such a change?
       
       We do not have an answer to this point. We did discuss and ask for follow-up on the issue of whether departure control under US VISIT might replace the current departure registration required. In addition, we submitted additional questions about how an NSEERS subject applicant for admission after complying with departure registration might not have to be subject to the full NSEERS interview and 10 print procedure under US VISIT.
        
    2. How will this affect Special Registration, if at all?
       
       Bottom line, this point does not seem resolved yet due to uncertainty on implementation of US VISIT. It was clarified that ICE deals with investigatory follow-up on these cases not actually admission or departure procedures, which are implemented by U.S. Customs and Border Protection (“CBP”).
       
        
37. In a few months we will be coming up on re-registration under the Special Registration program.
    1. Will Re-registration be required? YES
        
    2. Is there a plan to help the district offices staff with re-registration? None discussed
        
    3. Will re-registration be streamlined or shorter? Not discussed
        
    4. Will there be larger time frames for re-registration to occur? Not discussed
        
    5. Will there be a policy for dealing with those who register late? At this point, case by case decision on whether to issue NTA. Yes, we did note that this would certainly not be an incentive to encourage those who are late for whatever reason to appear to re-register.
        
38. Will NSEERs (or its successor) be expanded to other ports of entry and exit? Don’t know if this will be effectuated by US VISIT procedures or not yet.
     
39. Is there a mechanism for a person who is initially required to Special Register to be removed from the list if he or she becomes a legal permanent resident or has been granted asylum? Mr. Cerda noted that such information should be available through CLAIMS database to inspectors as well as to CIS. He also noted that if a person was granted asylee or legal permanent resident status while in the U.S., that they would no longer be subject to NSEERS requirements as of such date.
     
40. How is a person taken off of the Special Registration list? We were not able to ascertain a formalized procedure for this. Bottom line, at the moment, it seems the applicant will have to be the one to assert this position.
    
    Mr. Cerda did confirm that if an NSSERS call-in registrant departed the U.S. after appropriately registering their departure, that upon readmission through a port of entry, he would be converted to potential port of entry NSEERS registrant. If subject to NSEERS registration, they would be subject to compliance with the reporting requirements tied to the date of last admission at the port.
    
    The question was also raised regarding individuals who comply with call-in and departure registration and return to the U.S. but are not registered at the border. The committee asked whether such individuals would be subject to re-registration even though they had departed and were not re-registered upon readmission. Mr. Cerda said he needed time to think about the issue.
    
    Committee members also discussed that during the first two weeks of NSEERS, some applicants could only make paper filings and did not have FIN#s due to the initial procedures in place. Mr. Cerda noted that after the Los Angeles incident, they did have records of when offices had turned individuals away on certain days. An example was given of such original NSEERS papers being stored in boxes at various offices. Concern was expressed over the ability of offices to locate such documentation. Mr. Cerda indicated that he would review the issue and instruct the field on how to handle these cases.

IMPLEMENTATION ISSUES - US VISIT

41. How will exit control be implemented as of January 1, 2004 at our air and seaports? This is the bailiwick of CBP.
     
42. How can we document compliance satisfactorily of timely departure, if the system does not reflect accurate information? Although CBP deals with the issue of US VISIT at the ports of entry, ICE will proceed with any investigations or enforcement activity against violators. Thus, we are following up with questions and suggestion on how to document compliance with departure registration for NSEERS applicants and just plain timely departure for those subject to the upcoming exit control. We discussed use of passenger manifests, reporting in departure to U.S. consulates abroad, employer letters, etc. as to documenting only timely departure. As to NSEERS departure registration, we are suggesting appropriate affidavit or testimony evidence when the database may not reflect departure registration compliance. Discussion is ongoing.
     
43. Will US VISIT still be under ICE control? If not, how will ICE investigators coordinate with CIS to verify status issues (e.g. timely files extensions or changes of status still pending)? As noted above, USVISIT entry and exit procedures will be implemented by CBP and then CBP and ICE must coordinate on follow-up investigations and enforcement actions.
     
44. If entry will be tied to a 2 print IDENT check and photo, why are Mexican citizens holding biometrically based laser visas with two prints and photo not exempt from such entry and exit control measures being announced? CBP issue
     
45. What if someone applies for admission or exit from a VWP country, but not as a VWP entrant, for example as L visa holder? Please confirm that nationals of VWP countries are uniformly exempt from such exit and entry control. CBP issue.
     
46. As to entry control, what database will record the entry via a swipe of machine readable passport or visa? Can this database search automatically access CLAIMS, NAILS, IAFIS via a name vs. a biometric, and the same question as to IDENT? CBP issue.
     
47. Why run a search for every admission as to those who enter the U.S. frequently (daily/weekly/monthly)? Will you consider not requiring a print check except for entries after a certain time frame has passed (e.g. print the person on 1/1/04 but not again for six months worth of entries)? CBP issue.
     
48. Will multiple entry I-94s still be issued? CBP issue
     
49. Do you have any connectivity between IBIS and the biometric based IDENT and IAFIS databases to allow a record of entry to run a print based search? Bottom line, right now, you can't run a biometric based search without an IDENT two print or IAFIS 10 print review via a print being taken at the port. CBP issues
    1. What percentage of admissions currently is being subjected to IDENT or IAFIS checks?
        
    2. How many additional staff will it take at each port to conduct these checks in a few seconds as being suggested in information provided to the public?
        
    3. How were the staffing and infrastructure requirements determined?
        
    4. With no RFP out yet for the system, how can you expect to implement this program in accordance with section 110 of IIRAIRA?
50. If an applicant enters through an airport and departs via a land port or vice versa, how is a timely departure determined? How can we advise clients to document such compliance to the satisfaction of ICE? See answer at number 42.
     
51. Do US VISIT procedures apply to US legal permanent residents? CBP issue.
     
52. Do US VISIT procedures apply to Canadian citizens? CBP issue.
     
53. How will the system identify those no longer subject to exit-entry tracking? For example, a legal permanent resident who becomes naturalized? Same thing as to those no longer subject due to changes in status concerning NSEERS registration requirements? CBP issue.

RELATIONSHIP BETWEEN ICE AND FBI (NOT ADDRESSED)

54. There have been many instances where the FBI has either arrested or been involved in the arrest or apprehension of foreigners charged with immigration violations. What is the nature of the relationship between ICE and the FBI as it relates to enforcement, apprehension and arrest?
     
55. In light of the creation of DHS and transfer of immigration policing functions there, under what authority does the FBI check immigration status?
     
56. From what source(s) does the FBI get its information on the H1B (and other) nonimmigrants it investigates? Does the FBI have access to CLAIMS?
     
57. What are the standards for arrest of an alien by the FBI?
     
58. Are there specific categories of cases in which the FBI and ICE will work together? If so what are the categories?
     
59. Is the FBI charged with or delegated any immigration enforcement duties? If so, under what circumstances?
     
60. Is there any training of FBI agents in immigration enforcement or is any such training planned?