T5 B9 Alien Absconder Initiative Fdr- Doj Ins Memos 707

U.S. Department of Justice

Immigration and Naturalization Service HQOPS 50/18.7.2 Office of the Executive Associate Commissioner

425 I Street NW Washington. DC 20536

JUN I 3 2001

MEMORANDUM FOR REGIONAL DIRECTORS FROM:

SUBJECT:

//Michael A. Pearson I Executive Associate Commissioner Office of Field Operations District and Law Enforcement Support Center (LESC) Custody Decision and Detainer Responsibilities and a Revised LESC Enhanced Response Protocol

It has come to my attention that there is some confusion in the field about the role of the Law Enforcement Support Center (LESC) as it relates to custody decisions and placing of detainers. The LESC and the field each have specific responsibilities. Law Enforcement Support Center: *

The LESC will make positive hit confirmation responses to NCIC Wanted Person File (WPF) or Deported Felon File (DFF) queries 24 hours a day via the National Law Enforcement Telecommunications System (NLETS) to the Law Enforcement Agencies (LEAs) and to the local Immigration and Naturalization Service (INS) office having jurisdiction via telephone. The LESC will respond to live law enforcement queries received after normal business hours and determine the custody status of the suspect alien. Where the alien is positively identified as a WPF or DFF, the LESC will contact the duty officer having responsibility for this mission as established by the field office. The duty officer will be provided the alien's criminal history, immigration status, and the LEA contact point. After the duty officer has made a custody decision, if requested, the LESC will lodge a detainer to the LEA on behalf of the duty officer. The LESC is responsible for making a positive identification and for notifying the field office.

Memorandum for Regional Directors Subject: District and Law Enforcement Support Center (LESC) Custody Decision and Detainer Responsibilities and a Revised LESC Enhanced Response Protocol

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Where the alien is believed to be an Aggravated Felon, Prior Deport, Outstanding Warrant of Deportation, a case a LESC Special Agent deems of merit, and is not a WPF or DFF, the LESC will contact the duty officer having responsibility for this mission as established by the field office. The duty officer will be provided the alien's criminal history as provided by the Law Enforcement Agency (LEA), immigration status as found in INS databases, and the LEA contact point. After the duty officer has made a custody decision, if requested, the LESC will lodge a detainer to the LEA on behalf of the duty officer. Field Offices: Where the alien is believed to be an Aggravated felon, Prior Deport, Outstanding Warrant of Deportation, and/or another case a LESC Special Agent deems of merit, the field office is responsible for contacting the LEA and making a positive identification. In all cases, after contact by the LESC, it is the duty officer's responsibility to make a custody decision, contact the LEA to confirm custody status, file a detainer, process for prosecution or removal, and arrange for pickup. The duty officer may request the LESC to lodge a detainer to the LEA on behalf of the duty officer. However, in all instances, the designated duty officer has sole responsibility for determining when a detainer (1-247) will be lodged and for any responsibility thereafter. Recurring requirements: • Field offices were recently requested to provide a list of contact numbers on the LESC's Enhanced Response Protocol (ERP) worksheet. The Enhanced Response Protocol has been revised and simplified. Field components are requested to update and forward a copy of the attached ERP Contact sheet to the LESC during the 4lh week of every month. In order to ensure that the LESC can reach the appropriate duty officer, the field offices are requested to identify which unit, Investigations or Detention and Removals, will have responsibility and respond to calls from the LESC for each case type. In addition, each district is requested to provide the LESC with a map of their jurisdiction showing the counties for which each office is responsible. A list of offices and the counties over which they have jurisdiction is also requested. If this varies between Investigations and Detention and Removals, a map and list for each will be required. Whenever jurisdiction changes and this list is updated, a copy should be forwarded to the LESC.

Memorandum for Regional Directors Subject: District and Law Enforcement Support Center (LESC) Custody Decision and Detainer Responsibilities and a Revised LESC Enhanced Response Protocol

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A copy of this memo and the attached LESC Enhanced Response Protocol should be inserted in Appendix N, Procedures and Field Responsibilities for Enhanced Response in the NCIC Deported Felon and Wanted Person Files manual you recently received. Attachment

Appendix N: Procedures and Field Responsibilities for Enhanced Response LESC Enhanced Response Protocol In order for the Law Enforcement Support Center (LESC) to provide Immigration and Naturalization Service (INS/Service) field offices with assistance in the identification and detention of criminal aliens encountered by Law Enforcement Agencies (LEAs) after normal business hours, it is necessary to identify the field office units and duty officers assigned to specific missions. A. POLICY

Detention, prosecution and removal of aggravated felons previously deported/removed from the United States is one of the Service's highest priorities. INS Districts will pick up and detain Aggravated Felons in accordance with national detention policy. Detention/custody decisions are the responsibility of the District Director or their designated duty officer. B. LESC The LESC will make positive hit confirmation on NCIC Wanted Person File (WPF) or Deported Felon File (OFF) queries and will respond 24 hours a day via the National Law Enforcement Telecommunications,«System (NLETS) to the LEA and the local INS office having jurisdiction. The LESC will respond to live law enforcement queries received after normal business hours and determine the custody status of the suspect alien. Where the alien is positively identified as a WPF or DFF, the LESC will contact the duty officer having responsibility for this mission as established by the field office. The duty officer will be provided the alien's criminal history, immigration status, and the LEA contact point. After the duty officer has made a custody decision, if requested, the LESC will lodge a detainer to the LEA on behalf of the duty officer. The LESC is responsible for making a positive identification and for notifying the field office. Where the alien is believed to be an Aggravated Felon, Prior Deport, Outstanding Warrant of Deportation, a case a LESC Special Agent deems of merit, and is not a WPF or OFF, the LESC will contact the duty officer having responsibility for this mission as established by the field office. The duty officer will be provided the alien's criminal history as provided by the Law Enforcement Agency (LEA), immigration status as found in INS databases, and the LEA contact point.

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Appendix N-1

Replaces Version 2/2/01

C. Field Offices: The field office will identify which unit, Investigations or Detention and Removals, will have responsibility and respond to calls from the LESC. The field office will provide an initial list of contact numbers. The field component will update and forward that list to the LESC during the 4th week of'every month. Where the alien is believed to be an Aggravated felon, Prior Deport. Outstanding Warrant of Deportation, and/or another case a LESC Special Agent deems of merit, the field office is responsible for contacting the LEA and making a positive identification. During Normal Business Hours, after receipt of an Immigration Alien Response (IAR), the field component is responsible for contacting the LEA to confirm custody status, authorize detention, and process for prosecution or removal. After Normal Business Hours, the duty officer may request the LESC to lodge a detainer with the LEA on behalf of the District. However, in all instances, the designated duty officer has sole responsibility for determining when a detainer (I247) will be lodged and is responsible for any follow-up thereafter.

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Appendix N-2

Replaces Version 2/2/01

LESC ENHANCED RESPONSE PROTOCOL CONTACT SHEET District:

Office:

Roster for Month of:

Activity/Mission

Unit Assigned

Wanted Person Files (WPF) Deported Felon Files (OFF) Aggravated Felon Prior Deport (Non OFF) or Outstanding Warrant of Deportation/Removal (Non WPF) Other Aliens Encountered by Law Enforcement Agencies

Investigations Investigations - General Day Time Numbers

Telephone Number (Not Voice Mail)

SSAs - General Day Time Numbers

Telephone Number (Not Voice Mail)

Fax Number Telephone Number

After Hours Duty Agent

Pager Number Cell Phone Number Telephone Number

After Hours SSA

Pager Number Cell Phone Number

Detention and Removals Detention & Removals-General Day Time Numbers

Telephone Number (Not Voice Mail)

SDOs - General Day Time Numbers

Telephone Number (Not Voice Mail)

Fax Number Telephone Number

After Hours Duty Officer

Pager Number Cell Phone Number Telephone Number

After Hours SDO

Pager Number Cell Phone Number

Duty Roster - If no response within 20 minutes, contact the following: Investigations S/A

Submitted by: 06/12/01

Contact #

Detention & Removals D/O

Contact #

Telephone #: Appendix N-3

Replaces Version 2/2/01

of tlje
January 25, 2002

MEMORANDUM FOR

COMMISSIONER IMMIGRATION AND NATURALIZATION SERVICE DIRECTOR FEDERAL BUREAU OF INVESTIGATION DIRECTOR UNITED STATES MARSHALS SERVICE UNITED STATES ATTORNEYS

FROM:

THE DEPUTY ATTORNEY GENERAL

SUBJECT:

Guidance for Absconder Apprehension Initiative

A.

Introduction

This memorandum is directed to those Department of Justice agencies that will be primarily responsible for implementing the Absconder Apprehension Initiative ("the Initiative"). The objective of this Initiative is to locate, apprehend, interview and deport a group of alien fugitives known as "absconders." These absconders are aliens who, though subject to a final order of removal, have failed to surrender for removal or to otherwise comply with the order. The Immigration and Naturalization Service ("INS") has determined that there are approximately 314,000 such individuals. While the INS will ultimately undertake to deport all 314,000 from the United States, there are several thousand among that group who come from countries in which there has been Al Qaeda terrorist presence or activity. We want to focus our initial efforts on these "priority absconders," as we believe that some of them have information that could assist our campaign against terrorism. Among these priority absconders is a group of fewer than a thousand, many of whom appear to be convicted felons, who will constitute the first list of absconders we will ask you to investigate. The purpose of this memorandum is to explain the process for apprehending and interviewing the priority absconders. That process will involve the following steps: (1) entry of the absconders into the National Crime Information Center database ("NCIC") by the INS; (2) assignment of the absconders by judicial district, based on the most current address information; (3) transmission of the relevant portions of each absconder's INS file to the INS Field Office in the assigned district; (4) assignment of the absconder fugitive investigations to apprehension teams

absconders has been entered as a subject or target of any other investigation. If there is a match for any absconder in the PENTTBOM database or the other FBI databases, the FTTTF will remove that absconder from the list for this Initiative. This filtering process will help to ensure that the list of absconders does not include individuals who are subjects of active terrorism investigations. 2.

Entry of the Absconders into NCIC

The FTTTF will transmit the finalized list of priority absconders to the INS Headquarters Investigations Division, where agents will obtain and examine the absconders' INS Administrative Files ("A-Files"). Agents will confirm that each A-file contains documentation reflecting that the absconder had received notice that he was to be deported or, for those absconders who failed to appear at their deportation hearings, that he would be deported if he so failed to appear. After confirming that the absconder was on notice and that the deportation warrant remains valid, the agents at the Investigations Division will transmit the absconders' A-Files to the INS Law Enforcement Support Center in Burlington, Vermont for entry of the absconders' names into NCIC. At the same time, the list of absconders assigned to each district will be distributed to the INS and FBI Field Offices and to the United States Attorney's Office in each district. 3.

Transmission of Documents from the Absconders' A-Files

The INS will create a "fugitive folder" for each absconder on the list. These folders will contain duplicates of relevant documents from the absconder's original A-File. INS Headquarters will then transmit the fugitive folder for each absconder to the INS Field Office in the judicial district of the absconder's last known address. If no last known address information exists, the fugitive folder will be sent to the district of the office of origin for the alien's deportation proceeding. 4.

District Coordination Meeting

Each INS and FBI Field Office will appoint an Initiative Coordinator who will be responsible for overseeing his or her agency's involvement in the Initiative in that district. Prior to receipt of the fugitive folders, those Coordinators will meet with the United States Attorney's Anti-Terrorism Coordinator to discuss plans for implementation of the Initiative. At those meetings, the three Coordinators should: (1) make arrangements for consultation among themselves throughout the apprehension process; (2) determine how to staff each of the "apprehension teams," consistent with the guidance below; (3) decide who will check the list of absconders against local and/or state criminal databases; (4) discuss how to handle fugitive investigations that extend outside the district; and (5) decide any other logistical issues relating to timely implementation of this Initiative. 5.

Assignment of Absconder Cases to the Apprehension Teams

Upon receipt of the absconder fugitive folders, the INS Coordinator must contact his or her 3

consisting of INS, Federal Bureau of Investigation ("FBI") and other federal agents and, where appropriate, members of the Anti-Terrorism Task Forces ("ATTFs"); (5) apprehension of the absconders; (6) interviews of the absconders by the apprehension teams; (7) entry of the results of the interviews into the database; and (8) prosecution or removal of the absconders. While there are aspects of this Initiative that are similar to the Interview Project that was recently conducted by the ATTFs, I want to make clear that this is a very different undertaking. The Interview Project was directed at individuals who were not suspected of involvement in criminal activity, and investigators' contacts with the individuals were entirely consensual. This Initiative, by contrast, is directed at persons who have violated the law by remaining in the country after issuance of a deportation order and, in some cases, by committing other criminal offenses. Unlike the subjects of the Interview Project, therefore, these absconders are to be apprehended and treated as criminal suspects, and they are to be afforded all standard procedural rights and constitutional protections. In addition, while the Department and certain United States Attorneys' Offices intentionally publicized the Interview Project, this Initiative will not entail any official notice to either the public or the absconders. It would be counterproductive, and potentially dangerous, to provide the absconders with official warning that agents and officers will be seeking to locate and capture them. This Initiative will require a sustained and vigorous effort by a number of federal law enforcement agencies. As the agency tasked with enforcement of the immigration laws, the INS will be the lead investigative agency in all phases of the Initiative. The United States Attorneys will be responsible for coordinating the assignment of ATTF members to the apprehension teams, ensuring that the results of interviews of captured absconflers are entered into the database, and handling any prosecutions arising out of this Initiative. The FBI Field Offices and their Joint Terrorism Task Forces ("JTTFs") will actively participate in the apprehension effort, and they will be responsible for assessing each arrested absconder to determine whether the FBI has an interest in that absconder as a criminal suspect or as a source of information. Finally, it is expected that the United States Marshals Service ("USMS"), with its vast experience in capturing federal fugitives, will play a significant role in the apprehension effort. B.

The Process

1.

Creation of the List of Absconders

The Foreign Terrorist Tracking Task Force ("FTTTF") drew the names of the priority absconders from the INS' Depprtable Alien Control System ("DACS"). In order to finalize the list, the FTTTF is currently completing the following tasks: (1) running the absconders on the list through public source databases to determine a last known address in the United States; (2) using the last known address information to designate an investigating district for each absconder; (3) cross-checking the entire list against the PENTTBOM investigation database to determine whether any of these absconders has previously been identified as having a connection to that investigation; and (4) cross-checking the entire list against the FBI's other databases to determine if any of the

counterparts at the FBI and the United States Attorney's Office. The three Coordinators should then jointly decide how to staff the apprehension teams. The composition of the apprehension team assigned to each absconder will vary from district to district, depending upon agency staffing, the number of open absconder cases in the district, and the Coordinators' judgment about the appropriate manner of making assignments. If the INS and FBI in a particular district lack the manpower to conduct the fugitive investigations and apprehensions in a timely manner ~ or if their agents are occupied with other investigations — the United States Attorney will solicit assistance from the members of the Anti-Terrorism Task Force in that district. The apprehension teams will each be provided with copies of the fugitive folder and any relevant background material for each absconder, a copy of the interview questions and any operational instructions developed by the Coordinators. 6.

Apprehension of the Absconders

Every absconder who is located will be apprehended and taken into custody. The legal basis for that custody may differ depending on the law enforcement members on the apprehension team. If INS is represented on the apprehension team, the absconder can be arrested pursuant to the INS' authority under 8 U.S.C. § 1357 to arrest individuals on the basis of the civil warrant of deportation or removal. Because only INS agents have that clear authority, apprehension teams that do not include INS agents may not arrest absconders solely on the basis of the civil warrant. Instead, they can arrest absconders on the basis of probable cause that the absconder has committed the federal felony violation of Failure to Depart under 8 U.S.C. § 1253v The probable cause that the absconder has committed that offense would be based on the existence of a final deportation order and the absconder"s presence on American soil. 7.

Interviewing the Absconders

When an absconder is arrested, the arresting officers or agents will interview him about his knowledge of terrorist activity. The absconder should be advised of his rights under Miranda v. Arizona prior to the interview, and the interview should proceed only if he waives those rights. The interview should follow the list of questions that will be provided to all Anti-Terrorism Coordinators for distribution to the apprehension teams. This list of questions will be similar to the topics covered in the Interview Project. Following any interview, the investigators conducting the interview must provide the written results to the Anti-Terrorism Coordinator in the United States Attorney's Office, who will ensure that the information is entered into the Computerized Reporting System that was developed and used in the Interview Project. Investigators conducting interviews should feel free to use all appropriate means of encouraging absconders to cooperate, including reference to any reward money that is being offered and reference to the availability of an "S Visa" under the Responsible Cooperators Program for alien informants. Investigators should fully explain these inducements, but should be careful not

be taken before the nearest federal magistrate judge without unnecessary delay. In those instances where he was arrested by the INS on the civil warrant, the absconder need only be presented when and if criminal charges are filed. If the decision is not to prosecute, the absconder will be deported in accordance with standard INS procedures. 11.

Deportation of the Absconders

Absent an affirmative notification from the Anti-Terrorism Coordinator or the FBI Coordinator of the desire to undertake further investigative or prosecutive action against the absconder, the INS will make every effort to remove the absconder from the country as quickly as possible. 12.

Absconder Investigations Outside the Initial Investigating District

It will often become necessary to pursue leads for an absconder outside of the initial investigating district. As lead agency, it will be the responsibility of the INS to determine how best to conduct that investigation. In those instances where there are only isolated leads outside the district, or where the leads are in a nearby district, the INS Coordinator may determine that it is more efficient for the original apprehension team to pursue those leads. In those instances where the apprehension team determines that the absconder has moved to a distant district, the INS Coordinator would probably transfer the case to the INS Field Office in that district. In deciding whether to shift the investigation to another district, the INS Coordinator should always consult with and consider the views of the apprehension team members who are assigned to that investigation. Also, whenever the INS Coordinator decides to transfer an investigation to another district, he or she must communicate with INS headquarters, so that the fugitive folder may be reassigned, and with the Anti-Terrorism Coordinator and the FBI Coordinator, so that they can alert their counterparts in the other district. 13.

Tracking of Absconder Cases

The results of any interview with an absconder will be provided to the Anti-Terrorism Coordinator in each district, who will ensure that the results are entered into the Computerized Reporting System. The Anti-Terrorism Coordinator will provide the Executive Office for United States Attorneys regular reports on the number of absconders apprehended and interviewed in each district and the status of any prosecutions arising from this Initiative. In addition, the INS will be responsible for tracking each absconder's case following apprehension, and providing my office with regular reports on the number and timing of those removed under this Initiative. C.

Legal Issues

I.

Authority of Law Enforcement Officers to Effect Arrests

There is no question about the legal authority of federal agents to participate in arresting these absconders, as the United States Code specifically authorizes agents of the FBI and deputies

of the USMS to make warrantless arrests for federal violations where probable cause exists. In many districts, however, I expect that state and local law enforcement members of the ATTF will also participate in this effort. Their legal authority is less clear, as some states and municipalities place certain restrictions on the extent to which their officers can be involved in enforcement of the immigration laws. The INS has researched this issue on a state-by-state basis, and the Director of the Executive Office of United States Attorneys (EOUSA) will arrange a conference call with the fifty State Attorneys General to discuss this issue. The INS research will be shared with the AntiTerrorism Coordinator for each district. 2.

Consular Notification

In connection with the arrest of these absconders, the United States has certain obligations under the Vienna Convention on Consular Relations (VCCR). Under the VCCR, every foreign national arrested or detained within the United States must be informed that consular officials of his/her country of nationality may be notified of the detention. If the foreign national "so requests," or if the detainee is a national of a "mandatory notification" country, the appropriate consular officials are entitled to be notified and to have access to their incarcerated nationals. The INS Coordinator in each district will be responsible for making consular notification, in accordance with existing INS guidelines. D.

Implementation Deadlines

This Initiative is to be implemented by taking the following steps within the designated deadlines: 1.

The FTTTF will finalize the list of priority absconders on or before January 25, 2002.

2.

The INS, the FBI and EOUSA will send to their offices in each district the initial list of priority absconders assigned to that district on or before January 28, 2002.

3.

The Director of EOUSA, members of my staff and the Anti-Terrorism Coordinators will hold a conference call concerning the Initiative on January 29, 2002.

4.

The Anti-Terrorism Coordinator and the INS and FBI Coordinators in each district will meet to discuss implementation of this Initiative in their district on or before January 31,2002.

5.

The INS Law Enforcement Support Center in Burlington, Vermont will have the first group of priority absconders entered into NCIC, and their fugitive folders will be distributed to the appropriate districts on or before February 1, 2002.

6.

The Anti-Terrorism Coordinator and the INS and FBI Coordinators in each district will assign apprehension teams for all absconders on their list and distribute the fugitive folders and interview questions to those apprehension teams on or before February 11,2002.

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U.S. Department of Justice Immigration and Naturalization Service

HQOPS50/11.5-P Office of the Executive Associate Commissioner

4251 Street NW Washington, DC 20536

JAN 28 2002

MEMORANDUM FOR REGION FROM:

Jearson Executive Associate Commissioner Office of Field Operations

SUBJECT: Field Guidance: Absconder Apprehension Initiative This memorandum is directed to Immigration and Naturalization Service (INS) regional and field offices primarily responsible for implementing the Absconder Apprehension Initiative announced in the Deputy Attorney General's directive of January 25, 2002. The purpose of the Absconder Apprehension Initiative (Initiative) is to locate, apprehend and interview aliens with unexecuted orders of removal. These cases include those aliens who have failed to surrender for removal or to comply with a removal order. The INS recently determined that there are approximately 314,000 individuals believed to be in the United States who have unexecuted orders of removal. The INS will enter these cases into the National Crime Information Center (NCIC) database and arrest and remove these violators where feasible per Commissioner directive. The initial phase of the Absconder Apprehension Initiative will target several thousand male absconders from countries in which the Intelligence Community indicates Al-Qaeda terrorist presence or activity. This subset of the overall number of absconders is of special interest in continued efforts to investigate the attacks of September 11th and prevent future terrorism. It is believed that this group of aliens includes individuals with information that could assist in the United States campaign against terrorism. Accordingly, significant resources are going to be focused in an effort to apprehend and interview the individuals in this group. District Directors are expected to place the highest priority on these nationally designated, Headquarters reportable investigations, utilizing Investigations and Detention and Removal (D&R) officers as necessary for the Investigations Program controlled initiative. If additional resource needs are identified, District Directors should communicate immediately with the Headquarters National

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Memorandum for Regional Directors Subject: Field Guidance: Absconder Apprehension Initiative

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Security Unit (HQNSU) as existing, experienced D&R Fugitive Operations Teams may be available to assist with these efforts. The purpose of this guidance is to implement a process for apprehending and interviewing this subset of absconders. Phase I of the Absconder Apprehension Initiative will require a sustained and vigorous effort by a number of federal law enforcement agencies. As stated in the attached Deputy Attorney General directive, the INS is the lead agency for the enforcement of immigration law. As such, the INS will be the lead investigative agency in all phases of this operation. The INS will begin the operation by focusing on a group of approximately 700-750 absconders; many believed to be convicted felons. The operation will continue as additional cases from the overall group are referred to INS offices for apprehension and interview. It is essential that District Directors coordinate investigative activity with local Anti-Terrorism Task Forces (ATTFs) to ensure the assignment of multi-agency apprehension and interview teams under the leadership of the INS Investigations Program where necessary. Prompt decisions regarding potential prosecutions arising from the Initiative, including prosecutions for violation of 8 U.S.C. § 1253, "Failure to Depart," will be the responsibility of local United States Attorneys. The following INS Field Guidance augments the guidance detailed in the attached Deputy Attorney General directive. Please note the upcoming deadlines indicated in the directive. In anticipation of the need for open communication between HQNSU and regional and field personnel regarding this guidance, HQNSU will convene teleconferences with each region to include participation by the Assistant Regional Director for Investigations and the Regional Joint Terrorism Task Force (JTTF) Coordinator. Details regarding the dates and times of these individual teleconferences are forthcoming. The HQNSU designated point of contact for the Initiative is Louis F. Nardi. Mr. Nardi can be reached at 202-307-2757. Procedures 1. Preparation of Target Folders The targeted list of absconders produced by the Foreign Terrorist Tracking Task Force has been forwarded to the HQNSU for review, assignment and tracking. All Alien Files (AFiles) will be requested by HQNSU through the Headquarters Office of Records Management. Upon receipt of an original A-file, HQNSU will create a scanned electronic copy. HQNSU will review each A-File to determine if the case will be referred to the Headquarters Office of Intelligence (HQINT) for preparation of investigative Master Target Folders. Master Target Folders will include the results of various agency and commercial database checks, to ensure that leads sent to the field include the most current information available. Concurrently, the Law Enforcement Support Center (LESC) will complete Service database checks to determine the

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Memorandum for Regional Directors Subject: Field Guidance: Absconder Apprehension Initiative

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absconder's amenability to removal. Additionally, the LESC will be responsible for entering the case into the National Crime Information Center (NCIC) database and maintaining custody of the original A-File until the absconder is apprehended. Daily, HQNSU will electronically verify the mailing and receipt of original A-Files between Headquarters and the LESC. 2. Assignment of Target Folders After the Master Target Folders are completed by HQINT, they will be forwarded to HQNSU for assignment to INS field offices. Prior to assignment, HQNSU will review the Master Target Folders, determine the control office location, and assign those cases with viable, workable leads. Field copies of Master Target Folders, herein referred to as Fugitive Folders, will be sent via overnight delivery directly to District Offices for assignment based on absconder's last known address (LKA) or the district in which removal proceedings were initiated. HQNSU will notify Regional Office JTTF Coordinators via cc:Mail of the cases assigned to Field offices under their respective jurisdictions. The field office is responsible for immediately notifying HQNSU, the Regional JTTF Coordinator, and the ATTF Coordinator at the local United States Attorney's Office when the Fugitive Folder has been received. This notification can be done via cc:Mail to HQNSU at address [email protected]. The Regional Offices will also verify receipt of the target folders in the field and advise HQNSU. It is anticipated that the assigned field office will complete the assigned absconder investigation(s) within 30 days of receipt. If additional time is required to complete the investigation, the field office is responsible for requesting an extension from HQNSU. The Regional JTTF Coordinator must concur with the request for additional time. Three Significant Incident Reports (SIRs) will be utilized for the duration of the Initiative. Templates for each of these SIRs are provided with this memorandum for field office use. An Investigative Status SIR must be completed by the assigned field office in all instances. If the investigation discloses that the targeted absconder is residing/working in another jurisdiction or all leads have been exhausted and an apprehension has not occurred, immediate notification must be made to HQNSU and the Regional JTTF Coordinator via an Investigative Status SIR. This SIR will be sent via facsimile to HQNSU at 202-305-0833. All Fugitive Folders will be returned to HQNSU along with an Investigative Status SIR upon completion of investigative activity. INS Field offices will not transfer Fugitive Folders directly to other offices. HQNSU will create a new Fugitive Folder with the relating Investigative Status SIR and forward it to the appropriate field office. In those instances where there are only isolated leads outside the district, or where the leads are in a nearby district, the field office may determine that it is more efficient to pursue those leads itself and not seek reassignment. In those

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Memorandum for Regional Directors Subject: Field Guidance: Absconder Apprehension Initiative

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cases, intradistrict cooperation should be exercised as dictated by standing INS policies and procedures. If the investigation does not result in the apprehension of the identified absconder, HQNSU will retain the Fugitive Folder for a period of 90 days from the date on which the Investigative Status SIR relaying the inability to locate is received by HQNSU. After 90 days, the Master Target Folder will be resubmitted to HQINT for a second round of agency and commercial database checks for subsequent reassignment to the field, if warranted. Pursuant to the Deputy Attorney General's directive, INS and Federal Bureau of Investigation (FBI) points of contact (POCs) must be established for this initiative. Furthermore, District Offices should also coordinate with the United States Marshals Service in cases that pose a significant security risk. Also, every INS District Office must be prepared to respond on a 24hour basis in the event a state or local law enforcement agency encounters a targeted absconder. In such instances, the LESC will confirm the existence of the INS "want" and immediately notify the field office with jurisdiction over the particular case. 3. Apprehension of Absconders/HQ Notification All absconder apprehensions will be immediately reported to HQNSU via facsimile at 202-305-0833 utilizing the Investigative Status SIR. Although it is anticipated that the majority of arrests will occur with INS team members present, the INS POC will be immediately notified of the apprehension of an absconder by the ATTF Coordinator, FBI POC, or other ATTF team member in the event that INS is not represented. INS will take custody of and process the individual for either civil or criminal immigration-related offenses as soon as possible, unless the individual faces criminal prosecution for other than immigration-related offenses. The INS field office assuming custody of the arrested alien will contact the LESC and request the original AFile via express delivery. Please see the attached memorandum dated June 13, 2001 detailing "District and LESC Custody Decision and Detainer Responsibilities and a Revised LESC Enhanced Response Protocol." When INS agents encounter alien(s) believed to be in the United States in violation of law collateral to the arrest of an absconder, they should exercise sound judgment in determining whether circumstances require immediate arrest and detention. Generally, due to Servicewide resource implications, those arrests should be limited to aliens that possess information that could assist in the US campaign against terrorism. In instances in which aliens are apprehended other than those included in the Alien Absconder Initiative, the alien's name, A number, INS charge, and custody status must be reported to HQNSU via the Investigative Status SIR. After an arrest is made, the United States Attorney must decide whether to proceed with prosecution for a violation of 8 U.S.C. § 1253 or other applicable criminal statute. Additionally,

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Memorandum for Regional Directors Subject: Field Guidance: Absconder Apprehension Initiative

Page 5

the FBI must determine whether the absconder has any ties to terrorism that would justify further contact with the absconder by the FBI. If there is a basis for further investigation of the absconder, the local FBI officials will immediately notify the Service POC. These determinations will generally be made within 72 hours of INS assuming custody of the absconder. The field office will notify HQNSU no later than 72 hours of arrest of the absconder of the final United States Attorney and FBI determinations. The notification shall be made via facsimile utilizing the 3rd Agency Notification SIR. The amount of time available to the FBI to conduct additional interviews and/or investigation will depend, to a great extent, on the status of proposed removal arrangements. If criminal prosecution is authorized, it is imperative that an I247 Service Detainer be lodged against the absconder. Furthermore, case agents should work closely with the Assistant United States Attorney to coordinate any federal detention hearing with an emphasis that the subject remains in custody. 4. Interviewing Absconders/ Preparation of Reports of Investigation In addition to the guidance provided in the Deputy Attorney General's memorandum, absconders will be photographed and fingerprinted. Likewise, copies of all evidentiary materials (i.e., address books, copies of passports, pocket trash) and all Service-related documentation generated from the apprehension and interview will be forwarded to HQNSU with the completed Report of Investigation (ROI). Field offices should immediately ensure that they have transmitted copies of all of the following documents in each such case directly to HQNSU: Criminal Complaint/Indictment, Criminal Warrant, Criminal Search Warrant (as applicable), Affidavits filed in support of the above, Investigative reports surrounding the charge(s), photograph(s), and any other relevant data or information relating to the alien. Upon receipt of the original A-File from the LESC, the Fugitive Folder and ROI will be returned to the HQNSU via overnight mail to HQNSU/AAI, 425 I Street NW, Room 5122, Washington, DC 20536. This material will be provided to HQINT for input in the Criminal Investigative Reporting System (CIRS), further analysis, and possible additional lead generation. Many of these targeted absconders have not been in contact with INS personnel in several years. Therefore, it is imperative that INS personnel thoroughly document the de-briefing of the absconder, including prior residences, contacts, and associations in the United States. Investigators conducting interviews should use all appropriate means of encouraging absconders to cooperate, including reference to any reward money that is being offered and the availability of "S" visa status under the Responsible Cooperation Program for alien informants. Other forms of incentives such as Voluntary Departure, Stays of Removal, work authorization and monetary rewards are available and should be considered. These can be extremely useful

LIMITED OFFICIAL USE /LAW ENFORCEMENT SENSITIVE

LIMITED OFFICIAL USE /LAW ENFORCEMENT SENSITIVE

Memorandum for Regional Directors Subject: Field Guidance: Absconder Apprehension Initiative

Page 6

tools because they are immediately available and can be approved at the local level. Investigators conducting interviews should be cautioned against making any promises regarding immigration benefits to absconders. Only the Service, in consultation with the Department of Justice, may make such decisions. If investigators encounter instances in which the potential for Temporary Protected Status (TPS) or other benefits arise, District Counsel should be consulted for advisement regarding how to proceed. 5. Removal of Absconders/HQ Notification It is imperative that the Fugitive Folders be tracked through completion of the case. Therefore, it is the responsibility of the Investigations Program at the assigned field office to follow up on the removal status of any and all absconders placed in INS custody. Communication between Investigations and Detention and Removal personnel regarding the custody status of the absconder must be sustained from arrest through removal and conveyed timely. Every effort must be made to locate and secure the travel documents of any alien apprehended given the difficulties the Service has in obtaining such documents from the countries of those nationalities targeted during this initiative. Once the absconder has been removed from the United States, the field office will immediately report the removal to HQNSU via facsimile at 202-305-0833 utilizing the Notification of Removal SIR. 6. Additional Guidance District Directors will ensure that these apprehension and interview efforts are supported, to include providing Service officers to locations where they can immediately respond to requests from state and local officers involved in the interviews in the event that any violation of the immigration law is suspected. For G-23 monthly reporting purposes, affected field offices will utilize line 516.4, HQINV Project, for administrative cases and line 511.6, HQINV Project, for absconders with previous criminal convictions. Please ensure that this memorandum, with all attachments, is promptly distributed to field offices, consistent with its marking as a Limited Official Use/Law Enforcement Sensitive document. It is important that officers engaging in joint interviews pursuant to the directive carefully familiarize themselves with it. HQNSU expects the initial group of A-Files will be entered into NCIC and the first group of Fugitive Folders transmitted to INS agents and United States ATTF members by no later than January 31, 2002.

LIMITED OFFICIAL USE /LAW ENFORCEMENT SENSITIVE

LIMITED OFFICIAL USE /LAW ENFORCEMENT SENSITIVE

Memorandum for Regional Directors Subject: Field Guidance: Absconder Apprehension Initiative

Attachments: Attorney General's memorandum with associated guidance Memorandum of June 13, 2001; District and LESC Custody Decision and Detainer Responsibilities and a Revised LESC Enhanced Response Protocol Operational Guidance: Enforcement Operations at Certain Locations Operational Guidance: Detention Standards and Visitation Three SIR Templates Four Absconder Apprehension Initiative Flowcharts

LIMITED OFFICIAL USE /LAW ENFORCEMENT SENSITIVE

Page 7

U.S. Department of Justice Executive Office for United States Attorneys Office of the Director

Main Justice Building, Room 2244A 950 Pennsylvania Avenue, N. W. Washington. D.C. 20530

(202) 514-2121

MEMORANDUM - Sent via Electronic Mail DATE:

January 28, 2002

TO:

ALL ALL ALL ALL

FROM:

Kenneth L. Wainstein Director

SUBJECT:

Guidance for Absconder Apprehension

UNITED STATES ATTORNEYS FIRST ASSISTANT UNITED STATES ATTORNEYS CRIMINAL CHIEFS ANTI-TERRORISM COORDINATORS

Initiative

Please find attached a guidance memorandum from the Deputy Attorney General regarding a new project, the Absconder Apprehension Initiative. As explained in the memorandum, this Initiative will involve the apprehending and interviewing of a group of alien fugitives known as "absconders." While the INS will be the lead investigative agency in this Initiative, the United States Attorneys will play a significant role. You will be responsible for, among other things, coordinating the assignment of ATTF members to apprehension teams, ensuring that the results of interviews of captured absconders are entered into 'the database, and handling any prosecutions arising out of this Initiative. We will have a conference call for all Anti-Terrorism Coordinators on Tuesday, January 29 at two o'clock p.m., Eastern Standard Time, to discuss the Initiative. In order to access the conference call, you should dial (202) 353-0879 and provide passcode 7841. If you have any questions or concerns that you would like to discuss prior to Tuesday's conference call, feel free to call me at (202) 514-2121. Attachment cc:

All United States Attorneys' Secretaries

JUL. 12. 2002

8:07AM

NO. 9991 U.S. Department of Justice Executive Office For United Slates Attorneys

Main Justice BuOtUng, Boom 2244A 950 Pennsylvania Avenue fW Washington D.C, 20S30-OOOI

(202) 514-2121 FAX(202)616-227B

FACSIMILE TRANSMISSION COVER SHEET

TO:

Kris Kobach

FAX:

TELEPHONE:

5-9687

FROM:

Ken Wainstein

ORGANIZATION:

Executive Office For United States Attorneys

TELEPHONE:

VOICE: (202) 514-2121

DATE:

July 12, 2002

NUMBER OF PAGES (EXCLUDING COVER SHEET): CONTENTS:

FAX: (202) 616-ZZ78

2,

Absconder Apprehension Initiative Memo

NOTE: IT you do not receive the total number of pages indicated, please call the sending individual listed above, The information contained hi this transmission to the property of the United States, attorney-client privileged and exempt from disclosure under applicable lav, It is intended only for the use of the Individual or entity named above. IT the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sending office immediately via collect telephone call, and return the original message to us at the above address via United Sutes Mall. Thank you.

OAG014-0058

Jl/L. 12.2002- 8:07AMw

usao OC/T

h

NO. 9991

H P.

2

US. Department of Justice United States Attorney Southern District of New York

United States Attorney Eastern District of New York Mailing Addraat

One & AnJrr* 't Plaza flew York, Hew York 10007

Brooklyn. New York 11201 July 3 , 2002

Bon. Larry Thompson

Deputy Attorney General United State? Department of Justice Main Justice Building 950 Pennsylvania Avenue, N>w, Washington, DC 20530 Re:

Absconder Apprehension Initiative

Dear Deputy Attorney General Thompsons In January 2002, we received your memorandum outlining the objectives of the Absconder Apprehension Initiative (WA\I"), with its emphasis on arresting and deporting "priority absconders" who might have information relevant to the campaign against terrorism. Our offices, together with the Immigration and Naturalization Service (*INS"> and the Federal Bureau of Investigation (*FBI*) , have been endeavoring to complete the project. We ara anxious to do so effectively and in a timely manner, especially given the overwhelming importance of the A&l's prime objective. Severe personnel shortages here in New York, however, are undermining our ability to meet the project's goals. At the inception of the AAI, approximately 5,000 priority absaonders were identified nationwide. These priority abseondere, like the subjects of Round I and Round II of the DOJ Interview Project, are not geographically dispersed equally among the 50 states. Rather, a large percentage of them are located in the New York region. Thus, a significant portion of the work falls on our districts. To date, approximately 1,100 eases have been assigned to the New York District of the INS, nearly twenty percent of the nationwide total. The INS 'a New York District includes tha Eastern District of New York, the Southern District of New York and a small portion, of the Northern District of New York.

OAG014-0059

JUL. 12. 2 0 0 2 " 8:08AM*''

Lt>m uc/r

r>NO. 9 9 9 1

Currently, the apprehension, portion of the New York AAI project is being staffed with 12 IUS agents, 7 detectives, and 2 state troopers. With thip limited staffing it will take at least 12 months to complete the project. The delays inherent in processing the large number of AAI subjects further compound the problem, making it more difficult to find and apprehend abseondere who have become aware of the existence of the AAI project and taken steps to avoid arrest. Moreover, nan- INS personnel, while helpful in. staffing apprehension teams, must work under IMS oversight because they do nor. have the authority to arrest persons for immigration violations. Accordingly, the resources the INS can contribute to the AAI project are crucial to its success • After careful analysis, we are convinced that, in order to complete the AAI project within a reasonable time frame, the INS personnel dedicated to the initiative should be increased by at least 13 agents to a total of 25 agents. In addition, INS should seek to augment those resources by requesting assistance from other agencies to contribute a total of 25 detectives, state troopers and deputy marshals. We believe that it is necessary to seek this assistance from the INS from outside the New York district. The men and women of the New York district have been working diligently on a host of projects, but the office is grossly understaffed for the needs of this area. The local INS office has an authorized staff of approximately 250 positions. However, the nuniber of employees currently available to address all district responsibilities is less than a third of that total. When vacancies, supervision, support staff and specialized positions (such as OCDETF, JTTF, and the Institutional Removal Program) are deducted, there are approximately BO Special Agents to fulfill pre-existing program responsibilities and also tackle an increasing number of post -September 11th initiatives. Simply puc, INS resources in the New York district are not sufficient to carry out the important work assigned to that office. We have been advised that an official in your office has asked the INS to direct additional reeoiirces to the New York District but the results of that inquiry are uncertain. For that reason, we feel compelled to submit this extraordinary r ague at for outaide assistance. • "

OAG014-0060

JUl. 12. 2002 : 8:08ANf

UBPO oc/r

/^0_ 999,

Pp

We are deeply- cbmniitted to the AAI project, but we are concerned that the New York District 'e heavy caseload and lack of personnel, coupled with the staggering number of AAI subjects in our two districts, will render completion of. the project in a . timely manner virtually impossible. For these reasons, we are requesting your assistance in directing additional INS regional or national resources towards completion of the AAI project. Very truly yours,

y 'ALAN VINEGRAD

United States Attorney Eastern District of New York

United States Attorney southern District of New York

O AG014-0061

U.S. Department of Justice Immigration and Naturalization Service

HQCOM50/H.I Office of the Commissioner

4251 Street NW Washington. DC 20536

MEMORANDUM FOR THE ATTORNEY GENERAL THROUGH: THE DEPUTY ATTORNEY GENERAL FROM:

James W. Ziglsb^A^sS^Commissioner V (J\n andJNaturaliMion Service

SUBJECT:

Entry of Alien Absconders in the National Crime Information Center Database

In the Absconder Apprehension Initiative (AAI), the Immigration and Naturalization Service (INS or Service) has dedicated significant personnel resources and collected tens of thousands of immigration files from around the country to begin entering records of aliens who have not complied with final orders of removal into the Wanted Person File of the National Crime Information Center (NCIC) database. Review of these files prior to entry has uncovered a variety of legal and operational issues that have a significant impact on the number of records that are being entered. One of the issues affecting a substantial number of cases was whether a signed registered mail receipt, U.S. Postal Service Form PS-3811, is required to prove that the alien was on notice of the removal order or the demand that the alien surrender. Service practice in recent years has required that there be a signed PS-3811 in the file evidencing receipt of the "run letter" (INS Form 1-166) prior to entry of the case into NCIC. Pursuant to recent discussions of this issue with Stuart Levey and others on your staff, we are no longer viewing the registered mail receipt as a requirement, which should greatly increase the number of cases being entered.' I wanted to ensure, however, ihat you are apprised of some of the issues that present themselves regarding the ability of state and local law enforcement officials to effect arrests 1 The initial months of the second phase of the AAI have shown a 95% rejection rate due to various A-file deficiencies. Of those, 38% do not have (he Forms I-166 or PS-3811. Thus, although eliminating the requirement for the PS-3811 receipt will substantially raise the number of cases entered, the rate is still likely to remain below 50%. Even if the "amenable to prosecution" standard were eliminated entirely, it it estimated that approximately 40% of files do not have adequate identification (fingerprints, recent photographs, and biographical information) to allow for NCIC entry.

EXS001-0065

Memorandum for the Attorney General Subject: Entry of Alien Absconders into NCIC

Page 2

based on these entries. Foremost is the question of what authority state and local law enforcement officers have to effect arrests in these cases, and the INS has examined various alternative theories. One theory is that state and locals would make such arrests based on their criminal arrest authority. Under this theory, probable cause to arrest for violation of the rarely-used 8 U.S.C. § 1253(a) exists any time an alien with a final order of removal is encountered in the United States by a law enforcement official and learns of a Service record in NCIC.3 However, the statute requires that the alien acted willfully in failing to depart, to present himself or herself for removal, or to cooperate in obtaining travel documents. Proving a willful violation would require proof that the alien was duly notified of the order or obligation to present himself or herself for removal -- problematic due to flaws in ENS's address update and mail filing systems. Thus, a certain unknown percentage of cases we would be entering into NCIC would not actually be prosecutable due to notice issues. In addition to undercutting probable cause, this fact will weaken confidence of state and local authorities in the integrity of NCIC records entered by the Service. This lack of confidence will be exacerbated by concerns about pretextual arrests if state and local authorities find they are making arrests for which no one is prosecuted. Most state authorities do not believe they have authority to arrest for civil immigration violations, based in part on Department of Justice statements on the issue in recent decades4. Unless the March 11, 2002 Office of Legal Counsel (OLC) opinion regarding the inherent authority of state and local law enforcement officials to arrest for civil immigration violations is made public, such concerns may lead many states to decline to act on Service NCIC records. The second theory we have also explored is whether the Service could, through use of a detainer lodged upon confirmation of the NCIC "hit," effect a Service arrest. When a local police officer encounters someone in a traffic stop and discovers a Service record when running an NCIC check, the local agency contacts the Service's Law Enforcement Support Center It is not clear whether the decision that a PS-3811 is not required constitutes in fact a deviation from the "amenable to prosecution" standard. As the potential grounds for prosecution all have a willfulness element, some basis for probable cause as to willfulness - and thus some basis for believing the alien was on notice of his or her administratively final order - is required It may be -that the mailing of the requisite document - either the Board of Immigration Appeals' mailing of the final order, or die Service's mailing of the demand that the alien present himself or herself for removal - would be a sufficient basis for probable cause even in the absence of proof of receipt. The view of the Criminal Division and the Executive Office for United States Attorneys on this and other criminal law issues (including statute of limitations and "continuing violation" issues) is needed. 2

While peace officers in most states are authorized under state law to arrest for federal felony violations, this is not universally true. In some states (e.g., Virginia and Florida) they cannot make such arrests, and in some states (e.g., Massachusetts and New Jersey) the issue is not settled under state law. In January, the INS Office of General Counsel provided the Deputy Attorney General's staff with a summary of the authority of peace officers to arrest for federal crimes in each of the 50 states, and later in the spring this was supplemented with what little information -was available on state law authority for peace officers to enforce federal civil violations. 3

See, e.g.. February 5,1996 opinion of OLC for Ala* Bersin finding that "[s]tate police lack recognized legal authority to arrest or detain aliens solely for purposes of civil deportation proceedings, as opposed to criminal prosecution." This opinion is still found at the OLC website, www.usdqi.govfalc/19°6opiru'ons.ritm. See also. Opinion of the Nevada Attorney General No. 83-16, Nov. 23,1983,1983 WL 171453 (quoting 1978 Department guidelines that state and local officers should not detain aliens suspected of non-criminal immigration violations). 4

EXSO01-0066

Memorandum for the Attorney General Subject: Entry of Alien AbsceBtkrs into NCIC

Page 3

(LESC) in Vermont. The officer at the LESC reviews the file and, upon determining that there is probable cause to make the arrest, informs the state or local officer that the INS is effecting an arrest of the alien and requests, through use of a detainer, that the state or local law enforcement agency temporarily hold the aliea However, even if the Department releases the revised OLC opinion regarding state and local authority, OLC has recently informally opined that they do not see authority for these remote arrests on administrative warrants. Thus, according to OLC, local law enforcement officials cannot hold an alien for INS to make the probable cause determination unless authorized to do so under state law. In sum, there is a substantial likelihood that many states will decline to respond to INS entries in NCIC, undercutting the effectiveness of the AAI, in the absence of either (1) a determination that the Service can effect a remote arrest for which state and local agencies can serve as short-term custodial agents, (2) the release of the OLC opinion and each state's examination of its own officers' authority under state law to arrest for federal civil violations, or (3) maintaining strict adherence to an "amenable to prosecution" standard for NCIC entries. This latter alternative would mean a diminished number of files could be entered, could have possible ramifications for future initiatives to place immigration violators into NCIC, and would not resolve the concerns of a number of states where authority to arrest for federal crimes is not recognized. In contrast, the first alternative, if feasible, would have the most immediate and positive impact, as it would apply irrespective of state law constraints on arrest authority and thereby minimize each state's concerns about authority and liability.

EXSO01-0067

Department of Justice

EXECUTIVE SECRETARIAT CONTROL SHEET DATE OF DOCUMENT: DATE RECEIVED:

01725/2002 09/04/2002

FROM:

The Honorable Larry D. Thompson Deputy Attorney General U.S. Department of Justice

WORKFLOW ID: 216940 DUE DATE:

Washington, DC 20530

TO:

INS, FBI, USMS & USAs

MAIL TYPE:

General

SUBJECT:

Memo providing guidance for the absconder apprehension initiative.

DATE ASSIGNED 09/04/2002

ACTION COMPONENT & ACTION REQUESTED Controlled for search purposes only.

INFO COMPONENT: COMMENTS:

Memo prepared and dispatched by EOUSA. ODAG provided a copy to ES for DAG files.

FILE CODE:

DAG FILE: DAG MEMORANDA General

EXECSEC POC:

Kim Tolson: 202-514-8588

EXSO01-0068

(f)ffirr nf tttr ^rputu Aftnnmj •ffl.-islimgtntt, D.C. 211330

- January 25, 2002

MEMORANDUM FOR

COMMISSIONER IMMIGRATION AND NATURALIZATION SERVICE DIRECTOR FEDERAL BUREAU OF INVESTIGATION DIRECTOR UNITED STATES MARSHALS SERVICE UNITED STATES ATTORNEYS

FROM:

THE DEPUTY ATTORNEY GENERAL

SUBJECT:

Guidance for Absconder Apprehension Initiative

A.

Introduction

This memorandum is directed to those Department of Justice agencies that will be primarily responsible for implementing the Absconder Apprehension Initiative ("the Initiative"). The objective of this Initiative is to locate, apprehend, interview and deport a group of alien fugitives known as "absconders." These absconders are aliens who. though subject to a final order of removal, have failed to surrender for removal or to otherwise comply with the order. The Immigration and Naturalization Service ("INS") has determined that there are approximately 314,000 such individuals. While the INS will ultimately undertake to deport all 314,000 from the United States, there are several thousand among that group who come from countries in which there has been AJ Qaeda terrorist presence or activity. We want to focus our initial efforts on these "priority absconders," as we believe that some of them have information that could assist our campaign against terrorism. Among these priority absconders is a group of fewH-jh^in^ipusand, many of whom appear to be convicted felons, who will constitute the first list of jbscpndiers we will ask you to investigate. The purpose of this memorandum is to explain the process for apprehending and interviewing the priority absconders. That process will involve the following steps: (1) entry of the absconders into the National Crime Information Center database ("NCIC") by the INS; (2) assignment of the absconders by judicial district, based on the most current address information: (3) transmission of the relevant portions of each absconder's IXS file to the INS Field Office in the assigned district; (4) assignment of the absconder fugitive investigations to apprehension teams

EXS001-0069

consisting of INS, Federal Bureau of Investigation ("FBI") and other federal agents and, where appropriate, members of the Anti-Terrorism Task Forces ("ATTFs"); (5) apprehension of the absconders; (6) interviews of the absconders by the apprehension teams; (7) entry of the results of the interviews into the database; and (8) prosecution or removal of the absconders. While there are aspects of this Initiative that are similar to the Interview Project that was recently conducted by the ATTFs, I want to make clear that this is a very different undertaking. The Interview Project was directed at individuals who were not suspected of involvement in criminal activity, and investigators' contacts with the individuals were entirely consensual. This Initiative, by contrast, is directed at persons who have violated the law by remaining in the country after issuance of a deportation order and, in some cases, by committing other criminal offenses. Unlike the subjects of the Interview Project, therefore, these absconders are to be apprehended and treated as criminal suspects, and they are to be afforded all standard procedural rights and constitutional protections. In addition, while the Department and certain United States Attorneys' Offices intentionally publicized the Interview Project, this Initiative will not entail any official notice to either the public or the absconders. It would be counterproductive, and potentially dangerous, to provide the absconders with official warning that agents and officers will be seeking to locate and capture them. This Initiative will require a sustained and vigorous effort by a number of federal law enforcement agencies. As the agency tasked with enforcement of the immigration laws, the INS will be the lead investigative agency in all phases of the Initiative. The United States Attorneys will be responsible for coordinating the assignment of ATTF members to the apprehension teams, ensuring that the results of interviews of captured absconders are entered into the database, and handling any prosecutions arising out of this Initiative. The FBI Field Offices and their Joint Terrorism Task Forces ("JTTFs") will actively participate in the apprehension effort, and they will be responsible for assessing each arrested absconder to determine whether the FBI has an interest in that absconder as a criminal suspect or as a source of information. Finally, it is expected that the United States Marshals Service ("USMS")i with its vast experience in capturing federal fugitives, will play a significant role in the apprehension effort. B.

The Process

1.

Creation of the List of Absconders

The Foreign Terrorist Tracking Task Force ("FTTTF") drew the names of the priority absconders from the INS' Deportable Alien Control System ("DACS"). In order to finalize the list, the Fn it is currently completing the following tasks: (1) running the absconders on the list through public source databases to determine a last known address in the United States; (2) using the last known address information to designate an investigating district for each absconder; (3) cross-checking the entire list against the PENTTBOM investigation database to determine whether any of these absconders has previously been identified as having a connection to that investigation; and (4) cross-checking the entire list against the FBI's other databases to determine if any of the

EXSO01-0070

absconders has been entered as a subject or target of any other investigation. If there is a match for any absconder in the PENTTBOM database or the other FBI databases, the FTTTF will remove that absconder from the list for this Initiative. This filtering process will help to ensure that the list of absconders does not include individuals who are subjects of active terrorism investigations. 2.

Entry of the Absconders into NCIC

The FTTTF will transmit the finalized list of priority absconders to the INS Headquarters Investigations Division, where agents will obtain and examine the absconders' INS Administrative Files ("A-Files"). Agents will confirm that each A-file contains documentation reflecting that the absconder had received notice that he was to be deported or, for those absconders who failed to appear at their deportation hearings, that he would be deported if he so failed to appear. After confirming that the absconder was on notice and that the deportation warrant remains valid, the agents at the Investigations Division will transmit the absconders1 A-Files to the INS Law Enforcement Support Center in Burlington, Vermont for entry of the absconders' names into NCIC. At the same time, the list of absconders assigned to each district will be distributed to the INS and FBI Field Offices and to the United States Attorney's Office in each district. - 3.

Transmission of Documents from the Absconders' A-Files

The INS will create a "fugitive folder" for each absconder on the list. These folders will contain duplicates of relevant documents from the absconder's original A-File. INS Headquarters will then transmit the fugitive folder for each absconder to the INS Field Office in the judicial district of the absconder's last known address. If no last known address information exists, the fugitive folder will be sent to the district of the office of origin for the alien's deportation proceeding. 4.

District Coordination Meeting

Each INS and FBI Field Office will appoint an Initiative Coordinator who will be responsible for overseeing his or her agency's involvement in the Initiative in that district. Prior to receipt of the fugitive folders, those Coordinators will meet with the United States Attorney's Anti-Terrorism Coordinator to discuss plans for implementation of the Initiative. At those meetings, the three Coordinators should: (1) make arrangements for consultation among themselves throughout the apprehension process; (2) determine how to staff each of the "apprehension teams," consistent with the guidance below; (3) decide who will check the list of absconders against local and/or state criminal databases; (4) discuss how to handle fugitive investi gations that extend outside the district; and (5) decide any other logistical issues relating to timely implementation of this Initiative. 5.

Assignment of Absconder Cases to the Apprehension Teams

Upon receipt of the absconder fugitive folders, the INS Coordinator must contact his or her 3

EXS001-0071

counterparts at the FBI and the United States Attorney's Office. The three Coordinators should then jointly decide how to staff the apprehension teams. The composition of the apprehension team assigned to each absconder will vary from district to district, depending upon agency staffing, the number of open absconder cases in the district, and the Coordinators' judgment about the appropriate manner of making assignments. If the INS and FBI in a particular district lack the manpower to conduct the fugitive investigations and apprehensions in a timely manner—or if their agents are occupied with other investigations — the United States Attorney will solicit assistance from the members of the Anti-Terrorism Task Force in that district. The apprehension teams will each be provided with copies of the fugitive folder and any relevant background material for each absconder, a copy of the interview questions and any operational instructions developed by the Coordinators. 6.

Apprehension of the Absconders

Every absconder who is located will be apprehended and taken into custody. The legal basis for that custody may differ depending on the law enforcement members on the apprehension team. If INS is represented on the apprehension team, the absconder can be arrested pursuant to the INS' authority under 8 U.S.C. §1357 to arrest individuals on the basis of the civil warrant of deportation or removal. Because only INS agents have that clear authority, apprehension teams that do not include INS agents may not arrest absconders solely on the basis of the civil warrant. Instead, they can arrest absconders on the basis of probable cause that the absconder has committed the federal felony violation of Failure to Depart under 8 U. S.C. § 1253. The probable cause that the absconder has committed that offense would be based on the existence of a final deportation order and the absconder's presence on American soil. 7.

Interviewing the Absconders

When an absconder is arrested, the arresting officers or agents will interview him about his knowledge of terrorist activity. The absconder should be advised of his rights under Miranda v. Arizona prior to the interview, and the interview should proceed only if he waives those rights. The interview should follow the list of questions that will be provided to all Anti-Terrorism Coordinators for distribution to the apprehension teams. This list of questions will be similar to the topics covered in the Interview Project. Following any interview, the investigators conducting the interview must provide the written results to the Anti-Terrorism Coordinator in the United States Attorney's Office, who will ensure that the information is entered into the Computerized Reporting System that was developed and used in the Interview Project. Investigators conducting intem'ews should feel free to use all appropriate means of encouraging absconders to cooperate, including reference to any reward money that is being offered and reference to the availability of an "S Visa" under the Responsible Cooperators Program for alien informants. Investigators should fully explain these inducements, but should be careful not

EXS001-0072

to promise that they will be forthcoming in a particular case. Additional information about the Responsible Cooperators Program will be provided to the Anti-Terrorism Coordinators for further dissemination. 8.

Custody of the Absconders

In those instances where an INS agent is not physically present at the time of an absconder's arrest, the INS should be contacted immediately by the arresting investi gators, so that arrangements can be made to take the absconder into INS custody. When an absconder is taken into custody, he will usually be subject to prompt removal without further proceedings. In the ordinary case, the absconder will be held until the INS can complete the processing of travel documents, at which point he will be sent out of the country. If a particular absconder is to be the subject of further investigation or prosecution, the involved agencies will need to make quick decisions regarding the basis for continued custody of the absconder. 9.

FBI Assessment of the Absconders

At the time that an absconder is taken into INS custody, the INS Coordinator must notify the FBI Coordinator of the arrest. Once notified; the FBI Coordinator must expeditiously review the absconder's case and the results of his interview and determine whether it appears that the absconder has any ties to or knowledge of terrorism that would justify further contact with the absconder by the FBI. In reaching this determination, the FBI Coordinator must be mindful of the INS' responsibility to remove absconders from this country in an expeditious fashion. Given that the INS might be working under a restrictive time frame, the FBI Coordinator will often have to base his or her determination on an oral report of the interview from the interviewing investigator and/or the INS Coordinator without the benefit of a written report. The FBI Coordinator will then determine if there is reason to investigate the absconder further. If so, he or she must immediately notify the INS Coordinator and the United States Attorney's Anti-Terrorism Coordinator of the FBI's desire to conduct further investigation prior to deportation. 10.

Prosecution of the Abscond era

At me time that an absconder is taken into INS custody, the INS Coordinator must also notify the Anti-Terrorism Coordinator of the arrest. The Anti-Terrorism Coordinator will then decide whether to proceed with a prosecution for Failure to Depart under 8 U.S.C. § 1253, or to forgo prosecution and allow the absconder to be deported by the INS. In deciding whether there is a law enforcement interest in pursuing a prosecution against a particular absconder, the United States Attorney's Office should consider whether the absconder has engaged in criminal conduct, aside from the immigration violation, during his stay in this country. If the decision is to prosecute, the United States Attorney's Office will file charges and ensure that the absconder is presented before a federal magistrate. In those instances where the absconder was initially arrested on probable cause that he had violated 8 U.S.C. § 1253, he must

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be taken before the nearest federal magistrate judge without unnecessary delay. In those instances where he was arrested by the INS on the civil warrant, the absconder need only be presented when and if criminal charges are filed. If the decision is not to prosecute, the absconder will be deported in accordance with standard INS procedures. 11.

Deportation of the Absconders

Absent an affirmative notification from the Anti-Terrorism Coordinator or the FBI Coordinator of the desire to undertake further investigative or prosecutive action against the absconder, the INS will make every effort to remove the absconder from the country as quickly as possible. 12.

Absconder Investigations Outside the Initial Investigating District

It will often become necessary to pursue leads for an absconder outside of the initial investigating district. As lead agency, it will be the responsibility of the ENS to determine how best to conduct that investigation. In those instances where there are only isolated leads outside the district, or where the leads are in a nearby district, the INS Coordinator may determine that it is more efficient for the original apprehension team to pursue those leads. In those instances where the apprehension team determines that the absconder has moved to a distant district, the INS Coordinator would probably transfer the case to the INS Field Office in that district. In deciding whether to shift the investigation to another district, the INS Coordinator should always consult with and consider the views of the apprehension team members who are assigned to that investigation. Also, whenever the INS Coordinator decides to transfer an investigation to another district, he or she must communicate with INS headquarters, so that the fugitive folder may be reassigned, and with the Anti-Terrorism Coordinator and the FBI Coordinator, so that they can alert their counterparts in the other district. 13.

Tracking o f Absconder Cases

The results of any interview with an absconder will be provided to the Anti-Terrorism Coordinator in each district, who will ensure that the results are entered into the Computerized Reporting System. The Anti-Terrorism Coordinator will provide the Executive Office for United States Attorneys regular reports on the number of absconders apprehended and interviewed in each district and the status of any prosecutions arising from this Initiative. In addition, the INS will be responsible for tracking each absconder's case following apprehension, and providing my office with regular reports on the number and timing of those removed under this Initiative. C.

Legal Issues

1.

Authority of Law Enforcement Officers to Effect Arrests

There is no question about the legal authority of federal agents to participate in arresting these absconders, as the United States Code specifically authorizes agents of the FBI and deputies

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of the USMS to make warrantless arrests for federal violations where probable cause exists. In many districts, however, I expect that state and local law enforcement members of the ATTF will also participate in this effort. Their legal authority is less clear, as some states and municipalities place certain restrictions on the extent to which their officers can be involved in enforcement of the immigration laws. The INS has researched this issue on a state-by-state basis, and the Director of the Executive Office of United States Attorneys (EOUSA) will arrange a conference call with the fifty State Attorneys General to discuss this issue. The INS research will be shared with the AntiTerrorism Coordinator for each district. 2.

Consular Notification •*

In connection with the arrest of these absconders, the United States has certain obligations under the Vienna Convention on Consular Relations (VCCR). Under the VCCR, every foreign national arrested or detained within the United States must be informed that consular officials of his/her country of nationality maybe notified of the detention. If the foreign national "so requests," or if the detainee is a national of a "mandatory notification" country, the appropriate consular officials are entitled to be notified and to have access to their incarcerated nationals. _ The INS Coordinator in each district will be responsible for making consular notification, in accordance with existing INS guidelines. D.

Implementation Deadlines

This Initiative is to be implemented by taking the following steps within the designated deadlines: 1.

The FTTTF will finalize the list of priority absconders on or before January 25, 2002.

2.

The INS, the FBI and EOUSA will send to their offices in each district the initial list of priority absconders assigned to that district on or before January 28,2002.

3.

The Director of EOUSA, members ofmy staff and the Anti-Terrorism Coordinators will hold a conference call concerning the Initiative on January 29,2002.

4.

The Anti-Terrorism Coordinator and the INS and FBI Coordinators in each district will meet to discuss implementation of this Initiative in their district on or before January 31,2002.

5.

The INS Law Enforcement Support Center in Burlington, Vermont will have the first group of priority absconders entered intoNCIC, and their fugitive folders will be distributed to the appropriate districts on or before February 1, 2002.

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6.

The Anti-Terrorism Coordinator and the INS and FBI Coordinators in each district will assign apprehension teams for all absconders on their list and distribute the fugitive folders and interview questions to those apprehension teams on or before February 11, 2002.

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