T5 B7 Cru Dro 9-11 Detainees Fdr- Doj Document Request 9- Memo- 2 Cru Special Interest Cases- Withdrawal Notice- 27 Pgs Cru Si Cases 200

DOJ DOCUMENT REQUEST NO. 9 Thomas H. Kean CHAIR

Lee H. Hamilton VICE CHAIR

Richard Ben-Veniste

The National Commission on Terrorist Attacks Upon the United States ("the Commission") requests that the U.S. Department of Justice (DOJ or the "respondent") provide the Commission with copies of the following materials no later than November 3,2003:

MaxQeland Fred F. Fielding Jamie S. Gorelick Slade Gorton John Lehman Timothy J. Roemer James R. Thompson Philip D. Zelikow EXECUTIVE DIRECTOR

1. Documents from and to senior DOJ officials regarding counterterrorism and immigration and border security policy and programs. Documents setting forth communications and policy statements from the Office of the Attorney General (OAG) or the Office of the Deputy Attorney General (ODAG) to the Executive Office for United States Attorneys (EOUSA), the Executive Office for Immigration Review (EOIR), the office of the IMS Commissioner, INS Deputy Commissioner, or INS .Executive Associate Commissioners, and from the latter to the former, from February 26,1993 through September 20, 2001, regarding immigration policies, strategies, funding, programs, and practices concerning screening for terrorists at the border and elsewhere, and the use of immigration law to prosecute known or suspected terrorists in the U.S., including PDD-39 and PDD-62 insofar as they concerned immigration and border security matters. 2. Documents from senior DOJ officials to the Executive Office of the President Documents setting forth communications by the OAG or the ODAG with officials in the Executive Office of the President (EOP) who had responsibility for border and homeland security, concerning immigration (including refugees) and border security issues related to counterterrorism, including the specific events of September 11,2001, (a) from February 26,1993 through September 20, 2001, and (b) sufficient to describe current policies and programs (e.g., visa namecheck programs; immigration enforcement involving aliens in the U.S.; and international border-related efforts concerning intelligence, law enforcement, and travel document fraud), and setting forth evaluations and results of those current programs. ; 3. Communications from senior DOJ officials to the Department of - Defense DoD). Documents setting forth communications by the OAG, ODAG, or the Office of Legal Policy (OLP), to the DoD concerning protection of U.S. borders from terrorist infiltration, from September 11, 2001 through September 20, 2001. 4. Communications with foreign counterparts. OAG and ODAG communications with foreign counterparts regarding cooperative immigration and border-related counterterrorism measures, from January TEL (202) 331-4060 FAX (202) 296-5545 http://wwvi.9-l lcommission.gov

DOJ Document Request INk October 20, 2003 Page 2

1, 1998 through September 20, 2001. Such requests are limited to counterterrorism measures generally and do not include items relating to specific individuals. 5. Documents to and from the Criminal Division Terrorism and Violent Crime Section (TVCS) on counterterrorism/immigration policy and programs. Documents setting forth communications and policy statements from the OAG or the ODAG to the Chief of the TVCS, and from the latter to the former, from June 1, 1995 to September 20, 2001, regarding visa and border screening related to counterterrorism; the use of immigration law violations to combat terrorism; the use of secret evidence in immigration proceedings against suspected terrorists; international cooperation in reducing terrorist transnational mobility, and PDD-39 and PDD-62. 6. .(Documents from and to the Criminal Division, Office of International Affairs (OIA). Documents setting forth communications and/or policy statements from the OAG or the ODAG to the Chief of OIA, and from the Chief of OIA to the OAG or the ODAG, from January 1, 1998 through September 20, 2001, regarding bilateral, regional, and multilateral discussions on immigration, travel, and border issues, including intelligence sharing, law enforcement and criminal justice matters, and preventative measures, to the extent those discussions related to combatting terrorism. 7. Documents from and to the Criminal Division's TVCS and OIA. Documents setting forth communications and/or policy statements from the Commissioner of INS, the Executive Associate Commissioners, the head of the National Security Unit, and the Director for Intelligence to the Chiefs of the TVCS and the OIA, relating to counterterrorism at the visa stage or prior to travel to the U.S., at the border, or involving aliens within the U.S. from January 1, 1995, through September 20, 2001. 8. Alien Terrorist Removal Court (ATRC). Documents summarizing policies on the use of and the activities of the ATRC; and policy statements or memoranda to or from the TVCS analyzing, evaluating or stating the legal or factual criteria or standard for bringing a case before the ATRC, from January 1, 1996, through September 20, 2001. 9. J NCIC. Documents from sufficient to show (a) the current process and requirements for entering the name of an ah' en absconder into the National Crime Information Center (NCIC) database; and (b) the number of alien absconders by country of origin currently entered into NCIC.

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10.; September 11 detainees. Documents summarizing the results of the detention of ah' ens in •—•' connection with the investigation of the attacks of September 1 1 , 2001 , including documents summarizing (a) the number of individuals detained, deported, and released; (b) the countries of origin of the detainees; (c) the legal grounds upon which they were detained, charged, and deported; and (d) the intelligence, counterterrorism, and law enforcement benefits which resulted from those detentions. TEL (202) 331^060 FAX (202) 296-5545 http://www.9-ll commission.gov

DOT Document Request I October 20, 2003 Page3

11. The National Security Entry-Exit Registration System (NSEERS or special registration). Documents from September 11, 2001 through the present prepared for the OAG or the ODAG summarizing the results of the NSEERS program, including (a) the number of registered individuals by country; (b) the number of individuals who were detained or deported in connection with their registration; and (c) the intelligence, counterterrorism, and law enforcement benefits which resulted from the NSEERS program. 12. Voluntary Interview Program. Documents from September 11, 2001 through the present prepared for the OAG or the ODAG summarizing the origin, mission and results of the Voluntary Interview Program, including (a) the number of proposed interviewees; (b) the number of actual interviewees; (c) the number of interviewees who were detained on any charge; and (d) the intelligence, counterterrorism, and law enforcement benefits which resulted from the program. 13. Absconder Initiative. Documents sufficient to describe the origin and results of the Absconder Initiative, including (a) documents setting forth the criteria used to determine which individuals or groups of individuals were to be given a priority out of those with prior deportation orders; and (b) reports summarizing the number of aliens detained pursuant to the Absconder Initiative and the results of any immigration or criminal proceedings brought against them. (14yCrimmal justice statistics on enforcement actions. Documents for the period from January 1,1998 through the present summarizing the number of ah'ens who were charged with both immigration and terrorism-related charges. ;15. Analytic reports on criminal justice statistics. Analytic reports prepared by DOJ """"" agencies, including BJS and INS, discussing terrorism-related immigration enforcement, and terrorism-related immigration prosecutions, from January 1,1998 through the present. 16. "INS Weekly". All "INS Weekly" agendas prepared for the ODAG from January 1,1998 through September 20, 2001, which include terrorism-related items. .,"""~\17./Transition. Documents prepared for or communicated by DOJ to the Bush-Cheney """"" Transition Team or incoming Bush-Cheney officials related to INS counterterrorism measures. The Commission further requests that documents requested above be provided as soon as they are available, even though all requested documents may not be provided at the same time, thorough means of a "rolling" production. If any requested documents are withheld from production, even temporarily, based on an alleged claim of privilege or for any other reason, the Commission requests that the respondent, as soon as possible and in no event later than the production date, identify and describe each such document TEL (202) 331-4060 FAX (202) 296-5545 http://UTSTv.9-l lcommission.gov

B.S. Department of HoaKtana awuirHy

Washington, DC 20528

Homeland Security March 30,2004 INFORMATION MEMORANDUM FOR:

Michael J, Garcia, Assistant Secretary U.S. Immigration and Customs Enforcement

Robert Bonner, Commissioner U.S. Customs and Border Protect^ Asa Hutchinson, Undersecretary Border and Transportation S

FROM:

SUBJECT:

Guidance On ICE Implementation Of Policy And Practice Changes Recommended By TheDepartment Of Justice Inspector General

On June 2,2003, the Department of Justice ("DOJ") kspector General released JTie September 11 Detainees' A Review Of The Treatment Of Aliens Held On Immigration Charges In Connection mhfliefaest&tionQfThe September 11 Attacks ("OIGReport"). The OIGR.eport 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 resppnsiye to the Q1G. Report's recommendations. This Memorandum provides guidance on iljein-^ «.-,-•=.--•

I.

Custody Determinations and Notices to Appear.

Existing regulations requirethat, 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 borid^ and whether a Notice to Appear and warrant of arrest will bi 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 Irnmigration 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

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 detennination 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 Detennination (Form 1-286) and the Officer making the detennination will note on the Form 1-286 the time and date that the determination is made.

3.

The Officer will also annotate on the Form 1-286 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.

[jThe completed Form 1-286 will be servedon the alien within 48 hours of arrest/Jlie Officer serving the Form 1-286 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 1-286 is not served within 48 hours, the agent will note an explanation on the Form 1-286 file copy of the reasons precluding service within this period.

5.

ICE has proposed modifications to Form 1-286 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 ofcustody determination ________J" and "Probable charge(s) of removability ."

6. B.

- A copy of the seized 1-286

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

Pursuant to 8 C.F.R. § 287.3(d), an initial custody detennination 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 LA. above, except for the requirement that a custody determination and charging decision be made within 48 hours of arrest, asoutlined hi B.I,

3. C.

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

Dennition 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, serioustransportation 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 mat overwhelmsAgency 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 particularizedcompelling law enforcement • . , ' • ' . need,' . ' " " A -• : - :. . ' " - ' - • - ' - '.;• ' • • ' . . . - . • • •

.

4; The official making the determination asito 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. Acopy of this written decision will be simultaneously provided to ICE's Principal L^gal Advisor. 5. Any detennination that a "compelling law enforcement need" exists shall be reviewed by the official maldng me detennination and the ICE Office of the

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detennine syhether the factors leading to such a detennination 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^ST logistical considerations, the need to obtain conviction records and other information related to the alien or immigratioh. 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 areactivated, 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 wiU meet the above time guidelines. Once approved, the NTA should be served upon the alien and the court, 3.

H.

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 bei 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 mat the NTA is served on the Executive Office of Immigration Review.

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 theremovalperiod and determine ifllie aliem is to be released or remain in custody. Inorderto_ 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 riot 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 caselor an additional 90days. 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 Umt (HQPDU) who will conduct reviews under 8 CFR 241.13 arid 241.14 to determine if there is a significant likelihood that the alien -Should be released in me ^a^pMy-fosass^Me future or if the alien has a special circumstance _ justifying continued deteation. 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 mat will streamline the process and allow for much quickea: response by the field offices. Any changes developed to this process should becommunicated to the field and training on anynew 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 24L14, 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 hi 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 theinimigration 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

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This Memorandum is intended to provide internal guidance to the operational components of the Directorate of Border and Transponation 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.

9/11 Personal Privacy

CRU Special Interest Cases The following was extracted from the Deportable Alien Control System (DACS) on one case:

Citizen of Pakistan « Arrested on 11/23/01 in NYC r Status at entry: Entry without inspection 0 Violation: Illegal entry f Hearing date: 12/5/01, detained no bond » Next hearing dates: 12/14/01, 12/17/01,2/5/02 At hearing on 2/12/02 bail set and SUBJECT posted bail Hearing on 2/24/03, SUBJECT granted voluntary departure, appeal filed. - SUBJECT still in US on bail The information we will need is from the DCAS system. It is easily accessed through the A number. The information is found on the following DACS screens: UHR OSCBIOS CCOM CASS BIAD LCAS CRIM WaltHempel

0

.•/'9/11 Personal Privacy

CRU Special Interest Cases The following was extracted frorri the Deportable Alien Control System (DACS) on one case:

Citizen of Pakistan Arrested on 11/23/01 in NYC Status at entry: Entry without inspection Violation: Illegal entry Hearing date: 12/5/01, detained no bond Next hearing dates: 12/14/01, 12/17/01,2/5/02 At hearing on 2/12/02 bail set and SUBJECT posted bail Hearing on 2/24/03, SUBJECT granted voluntary departure, appeal filed. SUBJECT still in US on bail The information we will need is from the DCAS system. It is easily accessed through the A number. The information is found on the following DACS screens: IJHR OSCBIOS CCOM CASS BIAD LCAS CRM Walt Hempel

WITHDRAWAL NOTICE RG: 148 Box: 00004 Series: Copies: 1

Folder: 0001 Document: 1 9/11 Commission Team 5 Pages: 27

ACCESS RESTRICTED The item identified below has been withdrawn from this file: Folder Title: CRU DRO 9-11 Detainees Document Date: Document Type: Report From: To:

Subject:

Cudstody Review Unit Special Interest Cases

In the review of this file this item was removed because access to it is restricted. Restrictions on records in the National Archives are stated in general and specific record group restriction statements which are available for examination. ui (J in

NND: 46009 Withdrawn: 05-29-2007

by:

RETRIEVAL #: 46009 00004 0001 1