Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
AILA Doc No. 03120243 | Dated November 12, 2003
AILA/BICE COMMITTEE MEETING
Draft Responses of 2:00pm meeting held in Washington, D.C.
At ICE Headquarters on November 12, 2003
ICE – Victor Cerda, Chief of Staff/ICE and Principal Legal Advisor, Barry O’Mellin, Acting Deputy ICE Counsel, Mike Neifach, Principal Legal Advisor’s Chief of Staff/ICE
AILA- Palma Yanni, Denyse Sabagh, Kathleen Walker, Chuck Kuck, David Leopold, Gerry Rovner, Estelle Regolsky, Linda Kenepaske, Patricia Mattos, Jeanne Butterfield, Crystal Williams, Judy Golub
- The Law Enforcement Support Center (“LESC”), which serves as a national enforcement operations coordinating center by providing timely immigration status and identity information to local, state, and Federal law enforcement agencies on aliens suspected, arrested or convicted of criminal activity. The LESC operates 24 hours a day, 7 days a week assisting enforcement agencies with information gathered from eight service databases, the National Crime Information Center (“NCIC”), the Interstate Identification Index (“III”), and other state criminal history indices.
- The Forensic Document Laboratory, which provides forensic support to Federal, state, and local law enforcement in matters relating to documents, fingerprints, and other evidence.
The Smuggling/Public Safety Division will be headed by Joe Green of Legacy INS. This Division has six branches: Commercial Fraud, Critical Infrastructure Protection, Smuggling/Human Trafficking, Contraband Smuggling, Identity and Benefits Fraud, and Human Rights Violations.
This organizational structure is reflected on the U.S. Immigration and Customs Enforcement (“ICE”) website at www.bice.gov. The other Offices are: the Office of Detention and Removal, the Office of Air and Marine Operations, the Office of Federal Protective Service, the Office of Intelligence, and as of November 1, 2003, the Federal Air Marshal Service.
Mr. Cerda noted that Operation Predator had resulted in the removal of 1100 individuals based on work in Miami and New York. He also used Operation Cornerstone (described on website and which focuses on money laundering issues), which is a predominantly Customs-based operation as an example of how the immigration and customs laws are being reviewed jointly to use all legal available options from an enforcement perspective. For example, there are obvious immigration law violation considerations in typical money laundering situations as well as in the import/export of sensitive technology. U.S. attorneys continue to prosecute all federal criminal charges, but ICE attorneys have more involvement in such actions than in the past to allow better coordination.
It appears that ICE or CBP have the authority to make initial bond determinations. Within ICE, Detention and Removal should always be evaluating available bed space and the case facts to make a detention/bond determination. There appears to be some confusion with respect to whether, if ICE is unable to hold an individual in the first instance, it can re-determine bond subsequent to a bond re-determination by an immigration judge.
We were advised that Tony Tangeman was in charge of the Hartford Project. This project is an experimental project in which ICE detains non-citizens subsequent to an adverse decision by an immigration judge on the merits of their removal case. Mr. Cerda also noted that ICE was considering various alternatives, such as Electronic Monitoring (apparently ICE does not sanction the “tethering” term) to detention in non-mandatory detention cases. Mr. Cerda stated that mandatory detention cases will not be considered for the Electronic Monitoring Project. ICE is also focused on accounting for everyone who is subject to a final removal order and removing them. In order to reach this goal, they are constantly addressing bed space and resource issues. To evaluate a project’s success, they consider whether people are reporting, whether the cases are moving, and the time bed space is occupied. As to the Electronic Monitoring Project going on in Florida an elsewhere, Mr. Cerda noted that an employee in Detention and Removal would not have even contemplated such an option five years ago. There was a discussion about the use of electronic monitoring devices as an alternative method of “detention” in the cases of non-citizens subject to mandatory detention At this point, the idea is not on the table, but the point was by ICE that this option was considered unacceptable in the criminal context. A discussion also occurred as to using such electronic monitoring at least for those not convicted of crimes of violence. Jeanne Butterfield noted that the methodology used by investigations to subject individuals to electronic monitoring should be reviewed. She gave examples of excessive intimidation tactics used in some field sectors.
As to the bond issue, Barry O’Mellin noted that there was BIA precedent which provides authority for ICE’s unilateral redetermination of bond prior or subsequent to an Immigration Judge’s decision on the merits of a case. More specifically Mr. O’Mellin stated that stated that ICE can revoke the bond previously determined by the Immigration Judge without going back to the Immigration Judge. We requested a copy of the case.
A discussion ensued about the administrative delays being experienced when all parties agree to removal. Examples were given by the committee of three to four week delays or longer. Mr. Cerda indicated that they certainly did not support such delays and would try to look into the matter. He requested the committee to provide A numbers of case examples. The committee will be soliciting such examples to be forwarded to Mr. Cerda and his deputy for potential action. Examples were also given as to the Hartford project wherein the IJ had granted Voluntary Departure as the sole form of relief requested and the individual was then taken into custody.
Mr. Cerda did indicate that numerous detention options were being considered, even some type of parole arrangement in non-mandatory detention cases.
LEGAL REPRESENTATION OF ICE
Information about an alien may be contained in a variety of databases, which are “owned” by various agencies, and accessible to a variety of others. As with any database, some information may be input incorrectly, subject to being interpreted differently, or outdated and no longer relevant. In addition, aliens with the same very common name may be incorrectly identified. We have also found that criminal aliens will sometimes give another alien’s name when arrested. As information sharing increases, the potential increases that an individual may become subject to lengthy, unnecessary and/or repeated interrogations sometimes leading to detention or denial of benefits because of erroneous information. AILA would like to work with ICE to develop means to identify and eliminate erroneous information.
ADJUSTMENT OF STATUS/NTA (NOT ADDRESSED)
JOINT MOTIONS TO REOPEN REMOVAL PROCEEDINGS (NOT ADDRESSED)
In his memo of 5/17/2001 former General Counsel for INS, Bo Cooper, modified the INS position regarding "exceptional and compelling circumstances" in addressing motions to reopen for consideration of adjustment of status applications. In his memo, Bo Cooper stated:
"This office has determined that applying the ‘exceptional and compelling circumstances’ standard to motions to reopen for consideration of adjustment of status, will no longer advance significant law enforcement objectives. The INS may join in a motion to reopen (or a motion to the BIA to remand) for consideration of adjustment of status pursuant to INA 245 if such adjustment of status was not available to the respondent at the former hearing, the alien is statutorily eligible for adjustment of status, and the respondent merits a favorable exercise of discretion."
Attorneys across the country have reported that many local Chief Counsels are generally not following the guidelines set forth in the memo, but are instead refusing to join in most joint motion requests for aliens who are eligible for adjustment and are not statutorily barred from adjustment. The Chief Counsels seem to be applying the old "exceptional and compelling circumstances" standards, rather than the new standards set forth in the 5/17/2001 memo. Most requests for joint motions involve aliens who have overstayed their voluntary departure time. Even if the alien is otherwise eligible because of the passage of time, and the only negative factor is that the alien has overstayed his voluntary departure time and all other factors are positive, the chief counsels are refusing to join in the motions. More often than not the only reason given for the refusal is that the alien has overstayed his voluntary departure time. This violates the spirit and intent of the Bo Cooper memo.
EMPLOYER COMPLIANCE (NOT ADDRESSED)
AR-11 (NOT ADDRESSED)
IMPLEMENTATION ISSUES - US VISIT
RELATIONSHIP BETWEEN ICE AND FBI (NOT ADDRESSED)
Cite as AILA Doc. No. 03120243.