Compliance Enforcement Investigations Handbook, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, 2010
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Department of Homeland Security Office of Investigations Compliance Enforcement Investigations Handbook OI HB 10-01 January 25, 2010 OFFICIAL USE ONLY Foreword The Compliance Enforcement Invest igat ions Handbook provides a si ngle source of national policies, procedures, responsibili ties, gui deli nes, and controls to be followed by U.S. Immigration and Customs Enforcement (ICE) Office of Investigations (01) Special Agents when conduct ing investigations relat ing to compliance enforcement. This Handbook contains instructions and guidance to help ensure uniformity and operational consistency among all 0 1 field offices. Ove rsight over the national Compliance En fo rcement Program resides with the Uni t Chief: Compliance Enforcement Uni t, National Security Investigations Division, 0 1. The Co mpliance Enforcement Handbook is the orig inating and estab li sh ing Handbook on Compliance Enforcement. (See Appendix A for a detailed li st of the documents superseded by this Handbook.) The Com pl iance Enforcement Investigations Handbook is an internal policy of 01 and docs not confer any right or benefit on any pri vate person or party. If disclosure of this Handbook or any portion of it is demanded in any judicial or admi nistrative proceed ing, the 0 1 Informat ion Disclosure Unit, Mi ss ion Support Di vision, and the appropriate ICE Counsel andlor U.S. Attorney should be consulted so that appropriate measures can be taken to invoke privi leges against disclosure. This Handbook contains informat ion whic h may be exempt from discl osure to the pub li c. Any further request fo r disclosure o f this Hand book or information contained herein should be re ferred to the 01 Info rmation Disclosure Uni t. The 0 1 Policy Unit is responsible for coordilHlIing Ihe dcvc lopme11l and issuance of 0 1 policy. All suggested changes or updates to thi s Handbook should bc submitted to the Of Policy Unit whic h will coordinale all nceded revisions with the Co mpliance Enforcement Unit. D· ec tor, Office of In vestigations COJllp/UIIICf! f:llj orCt' mr lll 1""f!,tIIKWW"S I/""t/book OFF1ClM. USE ONl. Y COMPLIANCE ENFORCEMENT INVESTIGATIONS HANDBOOK Table of Contents Chapter 1. PURPOSE AND SCOPE........................................................................................1 Chapter 2. BACKGROUND .....................................................................................................1 Chapter 3. DEFINITIONS........................................................................................................2 • 3.1 • • • • • • • • • • • • • • • • • • • • • • • • • • • • 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 3.11 3.12 3.13 3.14 3.15 3.16 3.17 3.18 3.19 3.20 3.21 3.22 3.23 3.24 3.25 3.26 3.27 3.28 3.29 Advanced Visual Abstracted Links and Name Collection Handler Engine .......................................................................................................2 Alien Change of Address Request Database .............................................3 Alien Flight Student Program....................................................................4 Alternate Responsible Official ..................................................................4 Arrival Departure Information System......................................................4 Automated Biometric Identification System .............................................4 Central Index System ................................................................................4 Computer Linked Automated Information Management System .............4 Consular Consolidated Database...............................................................4 Deportable Alien Control System (Historical) ..........................................5 Designated School Official .......................................................................5 Enforcement Case Tracking System Database..........................................5 ENFORCE Alien Removal Module ..........................................................5 Enforcement Integrated Database..............................................................5 Fingerprint Identification Number ............................................................5 I-94 Subject Query in TECS .....................................................................6 LeadTrac Database ....................................................................................6 National Security Entry-Exit Registration System....................................6 Principal Designated School Official ........................................................6 Refugee and Asylee Processing System....................................................6 Responsible Official ..................................................................................6 Secondary Inspection Tool........................................................................6 Significant Event Notification...................................................................7 Significant Incident Report .......................................................................7 Student and Exchange Visitor Information System ..................................7 Student and Exchange Visitor Program ....................................................7 TECS .........................................................................................................7 United States Visitor and Immigrant Status Indicator Technology ..........7 Web-Based Commercial Databases ..........................................................7 _____________________________________________________________________________________________________________________ Compliance Enforcement Investigations Handbook OFFICIAL USE ONLY i January 25, 2010 Chapter 4. RESPONSIBILITIES.............................................................................................8 • • • • 4.1 4.2 4.3 4.4 Director, Office of Investigations..............................................................8 Unit Chief, Compliance Enforcement Unit ...............................................8 Special Agents in Charge ..........................................................................9 Special Agents...........................................................................................9 Chapter 5. AUTHORITIES ......................................................................................................9 • 5.1 • 5.2 • 5.3 NSEERS ....................................................................................................9 SEVIS......................................................................................................10 US-VISIT ................................................................................................11 Chapter 6. COMPLIANCE ENFORCEMENT PROGRAMS AND PROCEDURES .....11 • • • • • • • • • • 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9 6.10 NSEERS ..................................................................................................11 Student and Exchange Visitor Information System ................................15 US-VISIT ................................................................................................18 Automated Biometric Identification System ...........................................20 International Criminal Police Organization ............................................20 Visa Revocation ......................................................................................21 Retroactive Visa Revocation Request .....................................................22 Lost and Stolen Passport .........................................................................22 Alien Flight Student Program..................................................................23 Visa Waiver Enforcement Program ........................................................23 Chapter 7. COMPLIANCE ENFORCEMENT INVESTIGATIONS ................................24 • • • • • • • • • • • 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 Violator Identification ..............................................................................24 Database Analysis ....................................................................................24 LeadTrac Database ...................................................................................25 Investigative Lead Referral ......................................................................25 Case Categories ........................................................................................25 Collateral Request Assignment ................................................................25 Timely Assignment and Reporting Requirement.....................................26 Database Review ......................................................................................26 Field Investigation and Interview.............................................................26 Removability Determination ....................................................................28 Database Reporting/Management Notification ........................................29 APPENDIX Appendix A Acronyms ............................................................................................... A-i _____________________________________________________________________________________________________________________ Compliance Enforcement Investigations Handbook OFFICIAL USE ONLY ii January 25, 2010 COMPLIANCE ENFORCEMENT INVESTIGATIONS HANDBOOK Chapter 1. PURPOSE AND SCOPE The Compliance Enforcement Investigations Handbook establishes policy and procedures for U.S. Immigration and Customs Enforcement (ICE) Office of Investigations (OI) Special Agents (SAs) when they conduct investigations relating to compliance enforcement. Specifically, this Handbook: 1) Explains the components of the Compliance Enforcement Program; 2) Provides information related to the research, identification, and assignment of immigration status violator investigations; 3) Explains specified programs established to facilitate entry, tracks nonimmigrant status changes, and identifies nonimmigrants who fail to comply with immigration laws and regulations; and 4) Establishes uniform standards and procedures for accurate case development and the coordination of investigative lead referrals, as well as management accountability and proper tracking and control. Chapter 2. BACKGROUND Prior to the events of September 11, 2001, there was no effective system in place to accurately monitor the status of foreign students and other visitors in the United States, with disastrous consequences. The 9/11 Commission wrote in its report: “We also found that had the immigration system set a higher bar for determining whether individuals are who or what they claim to be – and ensuring routine consequences for violations – it could potentially have excluded, removed, or come into further contact with several hijackers who did not appear to meet the terms of admitting short-term visitors.” (The 9/11 Commission Report, July 22, 2004, page 401.) In June 2003, OI established the Compliance Enforcement Unit (CEU) within the National Security Investigations Division, the first national program dedicated to the enforcement of nonimmigrant visa violations. The pursuit of these visa violators provides significant support to the “disrupt and deter” counterterrorism strategy of the United States. Compliance Enforcement Investigations Handbook January 25, 2010 1 OFFICIAL USE ONLY Chapter 3. DEFINITIONS The following definitions are provided for the purposes of this Handbook: 3.1 Advanced Visual Abstracted Links and Name Collection Handler Engine A. AVALANCHE The Advanced Visual Abstracted Links and Name Collection Handler Engine (AVALANCHE) is a database developed by the ICE Office of Intelligence that enables users to perform key-word and biographic searches of 15 Department of Homeland Security (DHS) systems simultaneously. B. DHS systems that can be accessed through AVALANCHE The 15 DHS systems that can be accessed through AVALANCHE searches are as follows: 1) Central Index System (CIS) Computer Linked Automated Information Management System (CLAIMS) (Partial): The U.S. Citizenship and Immigration Services (USCIS) Service Center CLAIMS database. (Note: This is not to be confused with a search of the CIS mainframe system.) 2) Criminal Investigative Reporting System (CIRS) Subject Data: Subject data from archived CIRS databases; the legacy Immigration and Naturalization Service (INS) Investigations case management system. 3) Deportable Alien Control System (DACS) (Partial): All historical DACS cases as of April 14, 2005. (Note: The Enforcement Case Tracking System (ENFORCE) Alien Removal Module (EARM) replaced DACS in August 2008.) 4) Documents: Searches against ICE, U.S. Customs and Border Protection (CBP), and DHS unclassified intelligence reports. Access to these reports is also available from the DHS Operations Intelligence Fusion website (https://intel.ice.dhs.gov). 5) Enforcement Integrated Database (EID): Searches civilian records from EID. EID is the data warehouse for information entered in ENFORCE and the National Security Entry/Exit Registration System (NSEERS). This data is updated on a daily basis. 6) LeadTrac: Data from the LeadTrac system of visa overstays and absconders. LeadTrac is an OI database used by CEU that contains Compliance Enforcement Investigations Handbook January 25, 2010 2 OFFICIAL USE ONLY violator leads from NSEERS, Student and Exchange Visitor Information System (SEVIS), and the United States Visitor and Immigrant Status Indicator Technology (US-VISIT). This data is updated on a weekly basis. 7) National Targeting Center (NTC): Searches names of interest against CBP’s NTC daily operation reports. 8) No Fly List: Searches names on the Transportation Security Administration (TSA) No Fly List. Subjects on the No Fly List have been deemed a threat to commercial aviation. This data is updated on a daily basis. 9) Selectee List: Searches names on the TSA Selectee List. Subjects on the Selectee List have been deemed potential threats to commercial aviation. This data is updated on a daily basis. 10) SEVIS Exchange Visitor: Searches information within the SEVIS database of persons with exchange visitor visas. 11) SEVIS Exchange Visitor Dependents: Searches against information on dependents of exchange visitors found in SEVIS. 12) SEVIS Students: Searches the SEVIS database. 13) SEVIS Student Dependents: Searches dependents of students available in SEVIS. 14) Social Security Non-Authorized Worker Data: Searches information on individuals known to the Social Security Administration as authorized to work only with approval from USCIS. 15) Students and Schools (STSC): Searches student names from an archive of the STSC database, which preceded SEVIS. This data is not updated. AVALANCHE is located on the DHS Operations Intelligence Fusion website and is available to all SAs. The web address is https://intel.ice.dhs.gov. 3.2 Alien Change of Address Request Database The Alien Change of Address Request (Form AR-11) database is available through Teleview and contains change of address information filed by aliens via Form AR-11. Compliance Enforcement Investigations Handbook January 25, 2010 3 OFFICIAL USE ONLY 3.3 Alien Flight Student Program The Alien Flight Student Program (AFSP) is the TSA program utilized to vet and approve individuals for flight training. Section 113 of the U.S. Air Transportation Security Act amended Title 49, United States Code (U.S.C.) by adding a new section: Section 44939 (the authority granted by Section 113 of the act is codified as 49 U.S.C. § 44939). 3.4 Alternate Responsible Official The Alternate Responsible Official (ARO) is the official designated by the exchange visitor program to assist the Responsible Official (RO) in performing responsibilities and duties pertaining to SEVIS. 3.5 Arrival Departure Information System The Arrival Departure Information System (ADIS) generates reports by gathering and matching arrival and departure information. Information contained within ADIS is submitted to SEVIS, which notifies the appropriate school that the foreign student entered the United States and should report to school within 30 days. 3.6 Automated Biometric Identification System The Automated Biometric Identification System (IDENT) is a part of the DHS biometric database. It collects biometric, biographic, and encounter-related data for operations environments. Biometric data includes, but is not limited to, fingerprints and photographs. Biographical data includes, but is not limited to, name, date of birth, nationality, and other personal descriptive data. 3.7 Central Index System CIS is a master records management system that displays biographical information on certain classes of aliens and certain U.S. citizens. CIS contains information on the status of an alien, as well as the physical location of the alien’s file (A-file). 3.8 Computer Linked Automated Information Management System CLAIMS contains information on aliens who have filed applications for immigration benefits. It supports the processing and maintenance of applications and petitions for immigration benefits by providing an information systems infrastructure. 3.9 Consular Consolidated Database The Consular Consolidated Database (CCD) is a U.S. Department of State (DOS), Bureau of Consular Affairs, database that contains information on all immigrant and nonimmigrant visa applications submitted to U.S. consulate offices. Compliance Enforcement Investigations Handbook January 25, 2010 4 OFFICIAL USE ONLY 3.10 Deportable Alien Control System (Historical) DACS was a mainframe system that contained information regarding the status of illegal aliens under removal proceedings, including detention status and location. DACS also contained information regarding the alien’s entry and departure status until the alien was deported or relief was granted. (Note: As stated in Section 3.1(B)(3) above, EARM replaced DACS in August 2008.) 3.11 Designated School Official The Designated School Official (DSO) is the official designated by the academic institution to assist the Principal Designated School Official (PDSO) in performing responsibilities and duties pertaining to SEVIS. 3.12 Enforcement Case Tracking System Database ENFORCE is an event-based case management system that documents, tracks, and manages the reporting of enforcement cases. Its functions include subject processing, biometric identification, allegations and charges, preparation and printing of appropriate forms, data repository, and interface with the national database of enforcement events. ENFORCE supports alien apprehension processing for both “Voluntary Return” and “Notice to Appear” actions. ENFORCE also contains the NSEERS module through which all NSEERS registrations are performed. ENFORCE is the principal user interface with EID. 3.13 ENFORCE Alien Removal Module EARM is a web-based application that supports case management activities for the ICE Office of Detention and Removal Operations. EARM is integrated with other enforcement applications through the use of EID which makes it possible to collect, track, manage, and store data in a secure centralized location. EARM is ICE’s replacement for DACS, the legacy INS application, and is the official system of record for removal operations. 3.14 Enforcement Integrated Database EID is the data warehouse of information entered in ENFORCE and is the DHS common database repository for enforcement applications. 3.15 Fingerprint Identification Number The Fingerprint Identification Number (FIN) is the primary unique subject fingerprint reference used by DHS. FIN is generated by IDENT and US-VISIT. Compliance Enforcement Investigations Handbook January 25, 2010 5 OFFICIAL USE ONLY 3.16 I-94 Subject Query in TECS The I-94 Subject Query (SQ 94) in TECS provides the user with the ability to query for information regarding the entry of a nonimmigrant and includes information on entry classification, intended address, and departure. (Note: TECS is the former acronym of the Treasury Enforcement Communications System; it is now used as a stand-alone name.) 3.17 LeadTrac Database The LeadTrac database is a stand-alone compliance enforcement database utilized to store, track, and manage nonimmigrant status violator information for use in field investigations. 3.18 National Security Entry-Exit Registration System NSEERS provides detailed information about a nonimmigrant, including background, purpose of the nonimmigrant’s visit to the United States, and departure confirmation. 3.19 Principal Designated School Official The PDSO is the principal SEVIS point of contact for ICE at academic institutions, as well as the official designated by the academic institution to perform the responsibilities and duties pertaining to SEVIS. 3.20 Refugee and Asylee Processing System The Refugee and Asylee Processing System (RAPS) is a database that contains information related to asylum applicants and related asylee casework. The database maintains updates regarding application status and progress. 3.21 Responsible Official The RO is the primary SEVIS point of contact for ICE and DOS for exchange visitor programs, as well as the official designated by the exchange visitor program to perform the responsibilities and duties pertaining to SEVIS. 3.22 Secondary Inspection Tool The Secondary Inspection Tool (SIT) is a web-based tool that functions within a suite of integrated applications. SIT relies on external data and applications to help identify comprehensively a subject’s identity, to corroborate the subject’s identity, and to assess the risk that the subject’s presence in the United States may pose. While SIT does not gather biographical and biometric data, it is the conduit for the use of that information to Compliance Enforcement Investigations Handbook January 25, 2010 6 OFFICIAL USE ONLY help confirm a subject’s identity. Exit information is being captured in SIT at 12 airports and two seaports. 3.23 Significant Event Notification The Significant Event Notification (SEN) system is a transactional Intranet application and reporting system designed to facilitate the seamless entry, query, and modification of reports such as the Significant Incident Reports (SIRs). 3.24 Significant Incident Report The SIR is a report submitted through the SEN system and is the vehicle for reporting high-interest incidents, significant events, and other emerging or sensitive matters. 3.25 Student and Exchange Visitor Information System SEVIS is an Internet-based system that maintains accurate and current information on nonimmigrant students (F and M visa), exchange visitors (J visa), and their dependents (F-2, M-2, and J-2). SEVIS enables schools and program sponsors to transmit mandatory information and event notifications, via the Internet, to DHS and DOS throughout a student’s or exchange visitor’s stay in the United States. 3.26 Student and Exchange Visitor Program The Student and Exchange Visitor Program (SEVP) is the ICE program that administers SEVIS and conducts outreach with the educational community. SEVP also approves schools for certification to enroll F and M nonimmigrant students and withdraws such certification when the school is determined to be no longer eligible. 3.27 TECS TECS is an automated enforcement and inspection system designed to support DHS and other federal users. 3.28 United States Visitor and Immigrant Status Indicator Technology US-VISIT is part of a continuum of biometrically-enhanced security measures that begin outside U.S. borders and continue through a visitor’s arrival in, and departure from, the United States. Registration in US-VISIT currently applies to all visitors (with limited exemptions) entering the United States, regardless of country of origin or whether they are traveling on a visa by air, sea, or land. 3.29 Web-Based Commercial Databases Web-based commercial databases, such as Accurint, AutoTrack XP, and the Consolidated Lead Evaluation and Reporting database, store millions of public source Compliance Enforcement Investigations Handbook January 25, 2010 7 OFFICIAL USE ONLY records such as state and local government records, information from public utilities, driver’s license and vehicle registration records. These commercial databases are available to the U.S. Government and the public sector, and special access to the information is available to law enforcement. Chapter 4. RESPONSIBILITIES 4.1 Director, Office of Investigations The Director of OI has the responsibility for the oversight and implementation of the policies and procedures set forth in this Handbook. 4.2 Unit Chief, Compliance Enforcement Unit A. Responsibilities of the Unit Chief, CEU The Unit Chief, CEU, is responsible for the implementation of the policies and procedures set forth in this Handbook. The Unit Chief, CEU, is also responsible for coordinating with OI Headquarters (HQ) management on all aspects of the Compliance Enforcement Program, including, but not limited to, operational, investigative, policy, personnel, budget, and logistical issues. B. Delegation of Authority to the Unit Chief, CEU The following authorities established by Title 8, Code of Federal Regulations (C.F.R.), Part 264.1(f), as amended by 68 Federal Register (FR) 67578 (Dec. 22, 2003) (see Note below) are delegated to the Unit Chief, CEU: 1) The authority to issue notice to an alien of NSEERS registration or reregistration interview requirements. 2) The authority, to the extent permitted by law and subject to the availability of appropriations, to provide administrative services, funds, facilities, staff and other support services as may be necessary for the performance of functions as set forth in 8 C.F.R. § 264.1(f). 3) The authority to monitor department compliance with policies and recommendations of the Assistant Secretary of ICE as set forth in 8 C.F.R. § 264.1(f). 4) The authority to carry out such acts on behalf of the Assistant Secretary of ICE that are necessary to perform the duties and responsibilities entailed in exercising said authority. Compliance Enforcement Investigations Handbook January 25, 2010 8 OFFICIAL USE ONLY These authorities may not be redelegated. (Note: DHS’ interim rule, 68 FR 67578, suspended both the automatic annual and 30-day re-registration requirements. Aliens who previously registered at a port of entry at the time of admission or as part of a domestic call-in program continued to have an obligation to register their departure. NSEERS registered aliens remained subject to continuing registration interviews at the discretion of the Assistant Secretary of ICE or designee.) 4.3 Special Agents in Charge OI Special Agents in Charge (SACs) are responsible for implementing the provisions of this Handbook within their area of responsibility (AOR). 4.4 Special Agents OI SAs are responsible for complying with the provisions of this Handbook. Chapter 5. AUTHORITIES 5.1 NSEERS A. 8 C.F.R. Part 214.1(f), Registration and false information. Nonimmigrant aliens’ admission and continued stay in the United States are conditioned on compliance with any registration, fingerprinting, and photographing requirements upon arrival in the United States as described in section 264.1(f) of the regulations. B. 8 C.F.R. § 264.1(f), Registration, fingerprinting, and photographing of certain nonimmigrant aliens. Nonimmigrants may be required to register, submit fingerprints, and be photographed upon arrival to the United States if they are, or are believed to be, citizens or nationals of a designated country, or are believed to meet designated criteria. (Paragraph (f) was revised effective September 11, 2002, through notice in the Federal Register, 67 FR 52584.) (Note: DHS’ final rule, 67 FR 52584, originally established the NSEERS program, imposing the 30-day and annual special registration requirements for aliens coming from certain designated countries.) Compliance Enforcement Investigations Handbook January 25, 2010 9 OFFICIAL USE ONLY 5.2 SEVIS A. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Section 641 Required the creation of a program to collect student and exchange visitor information and to monitor student and exchange visitors. B. 8 U.S.C. § 1372, Program to collect information relating to nonimmigrant foreign students and other exchange program participants 8 U.S.C. § 1372 is the statutory authority for SEVIS. C. 8 C.F.R. § 214.2(f),(m), and (j) 8 C.F.R. § 214.2(f),(m), and (j) set forth the rules for admission, extension, and maintenance of status for F, M, and J visa holders, respectively. D. 8 C.F.R. § 214.3 8 C.F.R. § 214.3 sets rules for approval of schools seeking to enroll F and M nonimmigrant students, and for compliance post-approval. E. 8 C.F.R. § 214.4 8 C.F.R. § 214.4 sets rules for denial of certifications, denial of recertification, and withdrawal of SEVP certification. F. 22 C.F.R. § 62, Exchange Visitor Program 22 C.F.R. § 62 sets rules for the administration of the exchange visitor program (J visa holders – oversight for the program falls under DOS). G. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Section 416 The USA PATRIOT Act of 2001 mandates the full implementation and expansion of SEVIS as set forth in 8 U.S.C. § 1372. H. The Homeland Security Act of 2002 The Homeland Security Act of 2002 delegated responsibility of SEVIS to the Assistant Secretary of the Bureau of Border Security (BBS). Pursuant to section 1502 of the Homeland Security Act, the BBS was renamed the Bureau of “Immigration and Customs Enforcement (ICE)” through the Compliance Enforcement Investigations Handbook January 25, 2010 10 OFFICIAL USE ONLY President’s “Reorganization Plan Modification for the Department of Homeland Security,” effective March 1, 2003. I. The Enhanced Border Security and Visa Entry Reform Act of 2002 The Enhanced Border Security and Visa Entry Reform Act (EBSVERA) of 2002 sets specific time frames for the implementation of SEVIS, strengthens the SEVIS requirements, and sets standards for the certification of schools and the designation of exchange visitor programs. The EBSVERA of 2002 also provides for DHS to recertify schools approved for attendance by F and/or M students every 2 years to confirm the schools’ continuing eligibility for certification and compliance with recordkeeping and reporting requirements. 5.3 US-VISIT DHS and DOS instituted US-VISIT (see Section 3.28) as part of their authority to ensure eligibility of nonimmigrants for immigration benefits. Chapter 6. COMPLIANCE ENFORCEMENT PROGRAMS AND PROCEDURES 6.1 NSEERS In September 2002, as the result of a Congressional mandate, the Department of Justice (DOJ) developed and implemented NSEERS. Also known as “special registration,” NSEERS verifies compliance with U.S. immigration laws through the implementation of a national registry for the entry and exit of nonimmigrants. NSEERS provides detailed information about the nonimmigrant, including background, purpose of an individual’s visit to the United States, and departure confirmation. A. Port of Entry Encounter There are four different methods by which a nonimmigrant is identified as being subject to special registration at a port of entry. The four methods are: 1) identification of citizens or nationals of countries designated through publication of a notice in the Federal Register; 2) notification through the Interagency Border Inspection System; 3) identification of pre-existing criteria as defined by the Secretary of Homeland Security; and 4) exercise of officer discretion. Compliance Enforcement Investigations Handbook January 25, 2010 11 OFFICIAL USE ONLY If a nonimmigrant is identified as being subject to NSEERS registration, he or she is referred to secondary inspection for enrollment in NSEERS. During the secondary inspection process, the nonimmigrant is questioned under oath by CBP regarding employment, education, intended address in the United States, points of contact, and credit card information. Additionally, a digital photograph is captured and biometric information is obtained from the nonimmigrant’s two index fingers. The fingerprints are compared to fingerprints stored in law enforcement databases, which include convicted aggravated felons, known or suspected terrorists, criminal wants and warrants, and criminal alien recidivists. The biometric and biographic data are stored in EID and are accessible through the NSEERS module in ENFORCE. Absent any derogatory information, the nonimmigrant will be enrolled in NSEERS and will be admitted to the United States. The registrant will be provided with “walk-away materials” which direct the registrant to report to a designated port of departure for a departure interview on the date he or she intends to depart from the United States. B. Domestic Call-In Registration The domestic call-in registration period began on November 15, 2002, and ended on April 25, 2003. Four call-in notices were announced through publication in the Federal Register. The call-in notices defined the countries and conditions under which certain nonimmigrants were required to register. Male citizens and/or nationals 16 years of age or older from Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Unites Arab Emirates, and Yemen who were admitted as nonimmigrants on or before September 30, 2002, and who remained in the United States after the termination of the specified call-in period were directed to register for NSEERS. The notices also defined the effective period for call-in registration. Ultimately, four additional notices were published in the Federal Register reopening and/or extending the call-in period. The nonimmigrant would have been interviewed, under oath, to obtain the information needed to complete the registration data fields in the NSEERS module in ENFORCE. These data fields include simple but detailed biographic information relating to each registrant. The Federal Register Notice required call-in registrants to bring documentation relating to their stay in the United States, such as travel documents and proof of where they were staying. Compliance Enforcement Investigations Handbook January 25, 2010 12 OFFICIAL USE ONLY C. Amendment of NSEERS Regulation Requiring 30-Day and Annual Interview On December 2, 2003, an interim rule published in the Federal Register became effective that substantially modified 8 C.F.R. § 264.1(f), the section that authorizes NSEERS. The rule suspended the automatic 30-day and annual re-registration requirements and provided DHS with greater flexibility for notifying aliens of future registration requirements. DHS retains the authority to call in an NSEERS-registered alien for a compliance interview. All NSEERS-registered aliens, with the exception of crewmen, are required to register their departure at a designated port. An alien who willfully failed to appear for the call-in registration and/or comply with the applicable special registration requirements after appearing for the call-in is deportable under section 237(a)(1)(C)(i) of the Immigration and Nationality Act (INA) for failure to maintain nonimmigrant status. In addition, an alien who failed to appear for the call-in registration prescribed by the Federal Register Notice is deportable pursuant to section 237(a)(3)(A) of the INA. An alien who has been registered in NSEERS and fails (without good cause) to comply with the departure registration requirement is subject to a presumption of future inadmissibility to the United States under section 212(a)(3)(A)(ii) of the INA. D. Departure NSEERS registrants are required to depart from the United States at designated ports of departure. Prior to departure, the registrants must submit to a departure interview conducted by a CBP Officer. The registrant’s identity is confirmed through biometrics, and the registrant is required to present evidence that the alien will depart on that date. Failure to register a departure could result in the alien being found inadmissible at the next application for admission to the United States. E. U.S. Citizenship and Immigration Services Referrals Aliens subject to NSEERS registration and applying for an immigration benefit must provide USCIS satisfactory evidence of NSEERS compliance or qualification for exemption. If the alien does not satisfy USCIS standards, the alien will be referred to ICE for an interview. ICE has the responsibility for making the final determination of whether the alien is subject to NSEERS and whether or not the failure to register was willful or not reasonably excusable. (See the memorandum entitled, “NSEERS Referrals from Citizenship and Immigration Services,” signed by John P. Clark, Director of OI (April 22, 2004).) Compliance Enforcement Investigations Handbook January 25, 2010 13 OFFICIAL USE ONLY F. Special Registration Interview A Special Registration Interview is for individuals who appear to be complying with the terms of their admission, but have been determined that a special registration interview is warranted. NSEERS registrants identified as requiring such an interview will be sent a Notice of Special Registration Interview by the Unit Chief, CEU. Special Registration Interviews are based on specific factors indicating that the individual requires additional scrutiny and should be conducted accordingly. These interviews allow interaction with individuals from special interest countries, some of which are areas where terrorist groups are known to recruit and operate. Also, the potential for community outreach, intelligence, and/or source recruitment should not be overlooked. Prior to the interview, the alien’s identity should be confirmed by conducting a Special Alien Registration search in IDENT/ENFORCE. After the initial interview, if it is determined that the individual has maintained status and no additional derogatory information is discovered, the individual’s NSEERS record must be updated. Investigative Assistants are authorized to complete the process of updating NSEERS records. The location and date of the special registration should be entered in the “Interview” screen, and additional comments may be entered as a narrative on the biographical screen. A properly completed interview disposition in NSEERS is essential for the accurate capture of statistics related to the Special Registration program. A Notice to Appear (NTA) (DHS Form I-862) should be issued if evidence is uncovered during the interview which would indicate that the individual violated the terms of admission. If an NTA is issued, the decision to issue a warrant of arrest or to set bond conditions shall be determined utilizing the same local office criteria as is used for other immigration violators. If a national security charge under either INA § 212(a)(3) or 237(a)(4) seems applicable, a local Office of the Chief Counsel (OCC) must be contacted so that the National Security Law Division (NSLD) in the Office of the Principal Legal Advisor can be consulted in the matter. Similarly, if a national security bar under 212(a)(3) or 237(a)(4) seems applicable, SAs should make every effort to coordinate matters with the local OCC so that NSLD may be consulted if necessary. G. CEU NSEERS Enforcement Process CEU receives a weekly list of nonimmigrants who were enrolled upon entry and who do not have a registered departure, indicating that they potentially overstayed their period of admission. The information is reviewed by CEU to determine if any individuals are in violation of their status and are still Compliance Enforcement Investigations Handbook January 25, 2010 14 OFFICIAL USE ONLY present in the United States. Viable leads are referred to OI field offices for enforcement action. SAs are reminded that the decision of whether an alien’s failure to register was not willful or was reasonably excusable must be made with supervisory concurrence. 6.2 Student and Exchange Visitor Information System SEVIS provides ICE and educational institutions with detailed information regarding nonimmigrant entry into the United States, the arrival at the designated educational institution, and the registration of the nonimmigrant for the intended program. Additionally, SEVIS is continually updated by the DSO who is responsible for monitoring the status of nonimmigrants as they progress through their course of study. CEU extracts from SEVIS a weekly list of nonimmigrant students and exchange visitors who have been terminated (i.e., failure to enroll, unauthorized early withdrawal, failure to maintain full course load, etc.). However, not all terminated records are for adverse reasons; therefore, a few termination reasons (such as change of status) are excluded from further review. This information, as well as the nonimmigrant’s potential threat to national security or public safety, is incorporated into the lead generation process. A. Student and Exchange Visitor Program SEVP is responsible for the physical maintenance of SEVIS, the coordination of policy and regulations concerning foreign students, and outreach and liaison with the academic community. CEU works closely with SEVP to establish policy and guidance related to ICE enforcement matters. SEVP maintains information on schools that apply for certification and are currently certified by SEVP. This information includes the Petition for Approval of School for Attendance by Nonimmigrant Student (ICE Form I-17) and supporting documentation. Accordingly, SEVP can be a valuable investigative resource, especially in cases where an academic institution is engaged in criminal activity such as visa fraud or alien smuggling. Any requests for information or assistance from SEVP will be coordinated through the CEU SEVIS Program Manager. B. Certification/Recertification of Schools All academic institutions must be certified by SEVP in order to access SEVIS and issue the Certificate of Eligibility for Nonimmigrant F1 or M1 Student Status (ICE Forms I-20 A-B and I-20 M-N). Additionally, SEVPcertified institutions must recertify biannually. CEU assists SEVP in the review process to approve academic institutions for certification and recertification. This review includes an investigation into reports of suspected illegal activity, an assessment of any regulatory non-compliance, and consideration of a school’s level of cooperation with field agents. CEU Compliance Enforcement Investigations Handbook January 25, 2010 15 OFFICIAL USE ONLY also conducts a review of the DSOs to ensure that they meet the eligibility requirements to access SEVIS as set forth by regulations. C. Procedure for Obtaining Information from SEVP-Certified Schools ICE’s requests for information from schools for SEVP enforcement purposes are exempt from the requirements under the Family Educational Rights and Privacy Act (FERPA) of 1974. Schools are legally bound to provide information requested by ICE. Statutory authority for requesting information from schools for SEVP purposes is found in 8 U.S.C. § 1372(c)(2). Regulatory authority for school reporting requirements is found in 8 C.F.R. § 214.3(g). OI SAs may obtain information needed for enforcement purposes from institutions by directly requesting the information from the DSOs. Many institutions will provide information informally without written requests (orally, by email, or via facsimile). If such a relationship exists with an institution, a formal written request does not need to be submitted. ICE has the authority to obtain the information without a subpoena; therefore, SAs shall not request information for SEVP enforcement purposes using an Immigration Enforcement Subpoena. Upon receiving a notice in writing, regulations require an institution to provide the information requested on an individual student within 3 workdays, and within 10 workdays for a class of students (i.e., all students in a particular major or of a certain nationality). For individuals in custody, the institution must provide the information orally on the same day when the request is made. The oral request will then be followed by a written notification if requested by the institution. Written requests, on ICE letterhead, will be made by certified mail, courier, or by other means so that receipt of the notification can be documented. D. Failure to Provide Information If an institution has failed to provide the information requested within the specified time frame, SAs will contact the institution’s PDSO to determine why the request was not addressed. If the failure to respond was due to an oversight by the school, SAs will make a second request and will notify the CEU SEVIS Program Manager via email. The second request may be made orally or informally since the first written request meets the standard set forth in the regulation. If an institution fails to provide the requested information a second time or refuses to comply with the official ICE request, the SA will notify the CEU SEVIS Program Manager for further action. Compliance Enforcement Investigations Handbook January 25, 2010 16 OFFICIAL USE ONLY E. Decertification of Schools SAC offices may request the withdrawal of a school’s SEVP certification by contacting the CEU SEVIS Program Manager. This request must be accompanied by supporting documentation outlining the justification for the withdrawal. Final authority for the withdrawal of a school’s certification is vested with the SEVP School Certification Branch (SCB). 8 C.F.R. § 214.4 sets forth the regulations concerning the withdrawal of a school’s certification. CEU and SAC field offices will work closely with the SEVP SCB to provide information concerning schools that are subject to the withdrawal of SEVP certification. This will include timely reports of violations, documentation of incidents, and collection of evidence needed to support the withdrawal of certification. F. Rejection of PDSO/DSO ICE has the authority to certify who has access to SEVIS and may reject the submission of any DSO nominee or withdraw a previous appointment. Should a SAC office suspect that a PDSO/DSO is not eligible to access SEVIS, it should contact the CEU SEVIS Program Manager for guidance. G. Contact with SEVP-Certified Institutions 8 C.F.R. § 214.3(I)(1)(ii) requires schools to designate one PDSO and 8 C.F.R. § 214.3(I)(1)(iii) authorizes each school to designate up to ten DSOs at any one time, including the PDSO. DSOs are responsible for updating SEVIS and issuing Forms I-20 A-B or I-20 M-N to prospective and current students, as appropriate. PDSOs also serve as the principal points of contact for ICE. These functions may not be delegated to any other person. If additional information is required to verify the nonimmigrant student status, SAs can contact the DSOs directly. For issues concerning contact with DSOs, SAs should contact the CEU SEVIS Program Manager. H. Requests for Data and Other Information SAs will use the current SEVIS reporting module to obtain the information needed for their investigations. SEVIS enforcement guidance or requests for support of special projects or investigations should be referred to the CEU SEVIS Program Manager. I. Use of SEVIS Project Codes in TECS SAs will use the appropriate TECS project codes relating to SEVIS (YR2) for all criminal and administrative investigations involving SEVP-certified Compliance Enforcement Investigations Handbook January 25, 2010 17 OFFICIAL USE ONLY schools or school officials. This includes, but is not limited to, immigration fraud and alien smuggling occurring at SEVP-certified schools. J. Exchange Visitor Programs Exchange visitor programs are those programs designated by DOS to facilitate exchange visitors (J1 nonimmigrant visa holders and their dependents) via a Certificate of Eligibility for Exchange Visitor Status (DS 2019) through SEVIS. The policies that apply to academic institutions and F and M nonimmigrant students in this section also apply to exchange visitors. The equivalent of the PDSO/DSO is the RO and ARO, and the equivalent of the academic institution is the exchange visitor program. The equivalent of Form I-20 is Form DS-2019. Exchange visitor regulations are found in 22 C.F.R. § 62. 6.3 US-VISIT The US-VISIT Program (see Section 3.28) is the centerpiece of the U.S. Government’s efforts to transform our nation’s border management and immigration systems in a way that meets the needs and challenges of the 21st century. Most visitors experience US-VISIT’s biometric procedures – digital, inkless finger scans and digital photograph – upon entry to the United States. DHS continues to work closely with DOS, building on the biographic and biometric collection underway at U.S. consulates around the world. In those cases where a visitor requires a visa, DOS collects the visitor’s biometric and biographic information through the BioVisa program. The BioVisa program is checked against various U.S. Government watch lists, thereby improving the ability of DOS to make a visa determination. When a visitor arrives in the United States, US-VISIT procedures allow DHS to determine whether the person applying for entry is the same person who was issued the visa by DOS. Additionally, US-VISIT’s watch list checks improve the ability of DHS to make admissibility decisions. US-VISIT entry procedures are currently in place at airports and seaports with international arrivals and in the secondary inspection areas of all U.S. land border ports of entry. A. US-VISIT Biometric Watch List An integral part of the US-VISIT process is a fingerprint comparison of foreign visitors’ fingerprints to the fingerprint records of individuals identified via the US-VISIT Biometric Watch List. Biometric comparisons of a foreign visitor’s fingerprints to the US-VISIT Biometric Watch List can occur up to four times during the US-VISIT lifecycle of a foreign visitor: Compliance Enforcement Investigations Handbook January 25, 2010 18 OFFICIAL USE ONLY 1) during the visa issuance process; 2) upon entry during primary inspection; 3) subsequent to entry when new records are received outside the US-VISIT enrollment process (i.e., extracts from the Federal Bureau of Investigation’s (FBI) Integrated Automated Fingerprint Identification System’s (IAFIS) Criminal Master File) and enrolled; or 4) upon exit from the United States. All potential fingerprint matches to the various IDENT databases, including the US-VISIT Biometric Watch List, are referred to the DHS Biometric Support Centers (BSCs) for comparison and matching by certified fingerprint examiners. B. US-VISIT Biometric Support Center In cases involving comparisons against IDENT watch list records, BSC fingerprint examiners immediately communicate all findings to the submitter. The US-VISIT BSCs are staffed 365 days per year, 24 hours a day by expert fingerprint examiners. (Note: The results of fingerprint matches received from BSCs are very accurate, as matches are completed by expert fingerprint examiners. Although these results can be used as an articulable fact to establish probable cause for an arrest, results should be confirmed through a certified laboratory prior to the beginning of an adversarial process. If the BSCs are later converted into certified fingerprint laboratories, the results may be used as court room evidence.) CEU and US-VISIT are collaborating to utilize fingerprint data contained in IDENT to identify the fingerprints of unidentified suspects, victims, and witnesses and are obtaining investigative assistance from ICE. IDENT contains the fingerprints of millions of foreign nationals encountered by DHS and, during visa issuance, by DOS that are not accessible to state and local law enforcement agencies by any other means. The US-VISIT BSCs have access to millions of biometric and biographic records that are collected and maintained by DHS. C. US-VISIT Biometric Exit In 2006, US-VISIT piloted its deployment of an automated biometric exit process to record the departure of foreign visitors. Exit procedures were in place in 12 airports: Atlanta, Baltimore-Washington (BWI), Chicago, Dallas-Fort Worth (DFW), Denver, Detroit, Ft. Lauderdale, Newark, Compliance Enforcement Investigations Handbook January 25, 2010 19 OFFICIAL USE ONLY Philadelphia, San Francisco, San Juan, and Seattle; and 2 seaports: Miami, Florida, and Los Angeles (Long Beach/San Pedro), California. Most foreign visitors, including nationals from Visa Waiver countries, must comply where exit procedures are established. Canadian citizens are not required to participate unless they fall under current US-VISIT enrollment criteria. Effective May 6, 2007, international visitors are no longer required to check out at a US-VISIT exit kiosk when they leave the United States. DHS is now prepared to begin implementing exit procedures in the commercial air environment, where the significant majority of those subject to US-VISIT depart the United States. DHS recently began discussing the air exit strategy with the airline industry and will be collaborating with air carriers to implement it. DHS will publish a regulation in the future outlining its plans for implementing an integrated air exit strategy. 6.4 Automated Biometric Identification System IDENT is a fingerprint matching system for rapid biometric identification of subjects. IDENT was developed in 1995 to assist the U.S. Border Patrol in identifying illegal aliens with multiple attempted illegal entries (recidivists). Since then, IDENT has grown from 5,000 subjects to over 50 million subjects. IDENT currently supports a variety of users for both enforcement and immigration business processes. IDENT users submit fingerprint transactions that search multiple databases depending on the user’s specific business requirements. The response times from IDENT back to the user submitting fingerprints range from a few seconds to up to 24 hours, depending on the type of submission and the relevant IDENT databases that are searched. CBP Officers submitting the fingerprints of foreign visitors attempting to enter the United States who are subject to the US-VISIT provisions would be provided the results of the search of the US-VISIT Biometric Watch List database within 10 seconds. DOS Consular Officers submitting a fingerprint of a visa applicant requesting a Border Crossing Card to IDENT would be provided search results within 24 hours. User applications such as the ICE Enforcement Automated Booking Module within ENFORCE and the USCIS Application Support Centers are equipped to capture 10-print records for submission to both IDENT and the FBI’s IAFIS. OI field offices have 10print scanners; as a result, 2-print scanners should no longer be used. 6.5 International Criminal Police Organization In cooperation with the U.S. National Central Bureau (USNCB) of the International Criminal Police Organization (INTERPOL) and US-VISIT, CEU has developed a biometric-based program to identify foreign fugitives and criminals who have entered the United States. The program’s goal is to identify and to locate foreign fugitives and career criminals and to take the appropriate law enforcement action(s), including administrative and/or criminal arrest, removal, or extradition. Compliance Enforcement Investigations Handbook January 25, 2010 20 OFFICIAL USE ONLY The USNCB provides fingerprints related to the Red, Blue, and Green Notices to US-VISIT, which are then uploaded and/or checked against IDENT. Subsequently, US-VISIT creates lookout records to provide notification to IDENT users if there is a fingerprint match related to the INTERPOL notices. Confirmed match information is forwarded to CEU for further analysis and potential field assignment. Explanations of these notices, as provided by INTERPOL, are as follows: A. Red Notices Red Notices seek the arrest of subjects for whom an arrest warrant has been issued and where extradition will be requested. B. Blue Notices Blue Notices seek information (identity or criminal records) for subjects who have committed a criminal offense, and are used to trace and locate a subject whose extradition may be sought (unidentified offenders or witnesses). C. Green Notices Green Notices provide information on career criminals who have committed or are likely to commit offenses in several countries (e.g., habitual offenders, child molesters, or pornographers). U.S. law does not allow for the arrest of an individual based solely on the existence of a Red Notice from INTERPOL. U.S. law enforcement officers are required to obtain a provisional arrest warrant or develop probable cause for another violation that is a violation of U.S. law. Provisional arrest warrants are obtained after the country requesting extradition from the United States submits a provisional arrest warrant package to DOJ’s Office of International Affairs, and the provisional arrest warrant is issued by the appropriate U.S. court. In circumstances where obtaining a provisional arrest warrant is necessary to take an individual into custody, the field agent assigned to the case should work closely with CEU at ICE OI HQ, INTERPOL, and/or the U.S. Marshals Service. 6.6 Visa Revocation DOS is responsible for the issuance and revocation of nonimmigrant visas. DOS regularly revokes nonimmigrant visas for a variety of reasons, including national security concerns. In coordination with DOS, the Terrorist Screening Center, the FBI, and CBP, CEU ensures that all nonimmigrant aliens currently in the United States who have had their visas revoked on national security grounds are thoroughly investigated and, if possible, removed from the United States. Visa revocation does not strip subjects of their legal status in the United States. Compliance Enforcement Investigations Handbook January 25, 2010 21 OFFICIAL USE ONLY When DOS revokes a visa because of terrorism concerns, OI ensures that the proper investigative actions are taken. CEU is notified when DOS revokes a visa for national security concerns. OI SAs are encouraged to liaison with the local OCC (so that NSLD can be consulted if necessary) as early in the process as feasible, as soon as the applicability of either a national security bar or a charge under INA § 212(a)(3) or 237(a)(4) becomes a possibility. CEU fully reviews the lead and, if the subject of the revocation is found to be present in the United States, a collateral investigative request is forwarded to the appropriate field office. As mentioned above, since the revocation does not become effective until the alien departs the United States, visa revocation does not strip subjects of their legal status in the United States. In many visa revocation cases, classified derogatory information related to the subject exists. Should SAs require access to classified information regarding the individual, HQ contact information is contained in the initial Report of Investigation (ROI). The ICE Reporting and Operations Center is a secure contact available to SAs on a 24/7 basis and allows updated classified derogatory information relating to the target to be provided in a timely manner to requesting SAs. Additionally, the SAC Joint Terrorism Task Force (JTTF) representative has access to classified derogatory information. The Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 granted explicit authority to DHS to remove an alien whose nonimmigrant visa is revoked by DOS. 8 U.S.C. § 1227(a)(1)(B). DOS has long had the authority to revoke an alien’s visa at any time as a matter of discretion pursuant to INA § 221(i). Generally, revocations by DOS are not reviewed by courts under the doctrine of consular nonreviewability. This protection from judicial review gives DOS great flexibility to revoke visas on a low threshold of information. While IRTPA § 5304 grants explicit authority to DHS to remove aliens based on a DOS revocation, that revocation is subject to judicial review when a visa revocation is the sole basis for DHS removing an alien. This judicial review provision has significantly, if not completely, defused the new authority gained from making revocations a ground for removal. 6.7 Retroactive Visa Revocation Request It is important to note that visa revocation does not strip the subject of his or her legal status in the United States. DHS and DOS implemented a program that allows for the retroactive revocation of nonimmigrant visas. In certain exceptional cases, DHS may request DOS to retroactively revoke an individual’s visa to the date it was issued, rendering the subject inadmissible and, if present in the United States, with no valid immigration status. This places the alien in the same position as an alien who has not been admitted. ICE may then initiate removal proceedings. 6.8 Lost and Stolen Passport Since November 2004, CEU has been responsible for initiating lost and stolen passport investigations for ICE. The CBP NTC generates investigative lead information related to nonimmigrants who have entered the United States using a lost or stolen foreign passport. CEU thoroughly reviews each lead and assigns field investigations on those individuals it Compliance Enforcement Investigations Handbook January 25, 2010 22 OFFICIAL USE ONLY determines to be present in the United States. If, during the review, CEU identifies a nexus to terrorism or national security, the investigation is forwarded to the National Security Integration Center for further review and dissemination to OI JTTF SAs. 6.9 Alien Flight Student Program TSA is responsible for vetting nonimmigrants who seek to attend flight training within the United States and for conducting a threat assessment. As a result of the September 11, 2001, terrorist attacks, TSA implemented the AFSP. Beginning in April 2005, CEU assumed responsibility for evaluating the immigration status of certain applicants. Nonimmigrants who wish to attend flight training that will lead to a Federal Aviation Administration certification type or rating must submit a request to TSA. Candidates use the TSA website on the Internet and submit their background information and flight training requests. TSA reviews the applications and conducts a threat assessment to determine if the alien is eligible for flight training. In support of the TSA threat assessment, CEU performs database research and provides TSA with a determination as to the immigration eligibility of applicants for flight training. If the CEU determines that the nonimmigrant is in violation of his or her status or is amenable to removal, it will forward a lead to the appropriate OI field office for further investigation. 6.10 Visa Waiver Enforcement Program CEU developed the Visa Waiver Enforcement Program (VWEP) to address inherent vulnerabilities in the Visa Waiver Program (VWP) by identifying and targeting high-risk overstay and status violators who entered the United States under the VWP. The potential exists that an individual who seeks to do harm to the United States could obtain a passport from one of the VWP countries as a way of circumventing the scrutiny of the visa application process. The VWEP identifies potentially high-risk participants who overstay their term of admission in the United States and assigns investigations to OI field offices. VWP non-immigrant overstays are not entitled to a hearing before an immigration judge and the removal process at the SAC office unless the alien applies for asylum, in which situation the case must be referred to the immigration judge. While aliens who enter, or attempt to enter the United States under the VWP have extremely limited forms of relief available, it is not accurate to state that they are not entitled to any due process. See McGuire v. INS, 804 F. Supp. 1229 (N.D. Cal. 1992) (waiver of hearing was knowing and intelligent; VWP does not violate due process or equal protection). Compliance Enforcement Investigations Handbook January 25, 2010 23 OFFICIAL USE ONLY Chapter 7. COMPLIANCE ENFORCEMENT INVESTIGATIONS 7.1 Violator Identification CEU receives nonimmigrant compliance information from various immigration databases. The information identifies nonimmigrants who have entered or are attempting to enter the United States through an established immigration entry process and have failed to comply with immigration regulations. CEU prioritizes the information based on the potential threat to national security or public safety and forwards the information to research analysts for further review. A. System Leads CEU obtains leads on potential status violators on a weekly basis from SEVIS, NSEERS, and US-VISIT. NSEERS and US-VISIT provide information on overstays, while SEVIS provides information on terminated students. B. Specialized Leads Visa Revocations, Lost and Stolen Passports, TSA AFSP, INTERPOL, and Biometric Watch List investigative leads are a result of the cross reference of information among various law enforcement entities and their respective databases. Although the subject of a lead may have entered and appears to be present in the United States legally, additional investigative information could indicate that further scrutiny is required. 7.2 Database Analysis Research analysts use both general investigative and immigration-specific databases to verify the current status and residential location of nonimmigrant status violators. While assessing the viability of a nonimmigrant status violator lead, research analysts determine if the nonimmigrant is in violation, if the nonimmigrant is present in the United States, and if the information obtained identifies the current location of the nonimmigrant and a valid U.S. address by using information contained in the databases below: A. B. C. D. E. F. G. H. I. ADIS AR-11 AutoTrac AVALANCHE CCD CIS (Note: CIS does not always reflect the proper status of an alien; only a review of the individual’s A-file can determine his or her actual status.) CLAIMS EARM ENFORCE Compliance Enforcement Investigations Handbook January 25, 2010 24 OFFICIAL USE ONLY J. K. L. M. N. O. P. Law Enforcement Analysis Data System (NETLeads) National Crime Information Center RAPS SIT SEVIS TECS U.S. Postal Service Throughout the process, all relevant information pertaining to an identified nonimmigrant status violator is documented in the LeadTrac database. 7.3 LeadTrac Database Information collected relating to nonimmigrant status violators is consolidated, categorized, and entered into a CEU-specific internal database known as LeadTrac, which is maintained at HQ. LeadTrac information is entered, tracked, verified, and managed by research analysts and CEU Program Managers at HQ. 7.4 Investigative Lead Referral CEU works closely with the Intelligence Community to maintain a risk-based matrix with which to prioritize the hundreds of thousands of potential status violators that CEU reviews annually. All nonimmigrant status violators identified as viable for further field investigation are reviewed by HQ CEU Program Managers. HQ CEU Program Managers initiate a TECS case for each nonimmigrant status violator and prepare the case for dissemination to the appropriate OI field office. 7.5 Case Categories Case numbers are assigned to CEU cases in TECS based on the following criteria: 18D 19B 19C 19D 19E 19F 19H 7.6 Lost and Stolen Passport NSEERS SEVIS/TSA AFSP INTERPOL/Biometric Watch list Visa Revocation US-VISIT Overstay VWEP Collateral Request Assignment All information located by CEU is consolidated and uploaded into a TECS ROI by a CEU Program Manager. The TECS ROI initiates a collateral request for the designated field office. Field CEU coordinators review, assign, and ensure that all CEU collateral requests are investigated in a timely manner. In compliance with the OI Case Management Handbook (OI HB 08-02, dated February 1, 2008), an ROI must be posted Compliance Enforcement Investigations Handbook January 25, 2010 25 OFFICIAL USE ONLY by the case agent to an opened investigation within 20 days of the initiation of the investigation. If the receiving office determines that the nonimmigrant is located in another AOR, the SA will write a closing ROI to summarize the information and will report it to CEU via TECS. CEU will then initiate the collateral request to the responsible field office for the identified AOR. 7.7 Timely Assignment and Reporting Requirement CEU coordinators ensure the completion of collateral investigation requests in a timely manner. Should a CEU investigation contain time sensitive information, a HQ CEU Program Manager will notify the responsible field office and will provide further clarification and guidance. If the nonimmigrant status violator is or may be of national security interest and subject to removal from the United States, SAs shall prioritize these investigations accordingly. After conducting the preliminary background investigation, SAs will better understand the amount of attention that one case may require as opposed to another. 7.8 Database Review SAs shall review the information provided in the collateral ROI and conduct independent database queries as necessary. SAs may be able to develop additional information that would aid in the identification, location, or confirmation of the status of the nonimmigrant. SAs are authorized access to essential compliance-related databases. 7.9 Field Investigation and Interview Upon location of the nonimmigrant, SAs will conduct a field interview, locate and review nonimmigrant documentation, and determine the immigration status. SAs will also question the nonimmigrant as to financial status, employment history, contacts and associates, and recent travels. If the nonimmigrant is out of status, SAs will take appropriate action and document the results in an ROI. If the interview results in the discovery of additional criminal violations, SAs will contact the U.S. Attorney’s Office. As with any investigation, there will be times when SAs are unable to locate the target of the investigation and have exhausted all investigative leads. Prior to closing this case and reporting that “all leads have been exhausted,” CEU recommends that the minimum measures described below be taken to ensure that full attention has been given to the investigation. Within 90 days of receiving a collateral investigation request from CEU, the assigned case agent should: A. Contact any listed points of contact, relatives, petitioners or sponsors, if available; B. If investigating a student violator, contact the DSO in an attempt to identify additional locator information or known associates; Compliance Enforcement Investigations Handbook January 25, 2010 26 OFFICIAL USE ONLY C. Perform a physical check of any known addresses, including inquiries with neighbors; if the property appears inhabited, return until contact is established with the resident; D. Utilize CCD photograph(s) during related interviews to assist in investigative efforts; E. Contact other law enforcement agencies for any additional leads; F. Check open source web searches via Google, Myspace, Facebook, etc. for possible leads; G. Re-run subject queries through any available government and public databases for updated information regarding the subject; H. Subpoena subscriber information on any telephone numbers associated with the target; I. Subpoena subscriber information on any known email accounts associated with the target; and J. Provide CEU with any additional addresses and email addresses identified, including addresses that are located outside the SAC’s AOR. Using the above measures will ensure that the appropriate investigative resources are applied to all CEU investigations. If the subject of the investigation remains un-located after exhausting all the above measures, the case agent shall fully articulate in the closing ROI all investigative measures taken. Use of anonymous (“anonymized”) and/or undercover computers is suggested for open source web searches. A. Consent Searches In cases relating to terrorist or criminal activity, SAs should make every effort to obtain search warrants. If there is insufficient evidence available for a search warrant, SAs should attempt to gain consent to search the premises. After access to the premises is granted, SAs will request consent to search the residence and attempt to identify any items of evidentiary value, including, but not limited to, contraband, evidence of criminal activity, electronic media devices, and items that could indicate a potential threat to national security. SAs should document the consent to search appropriately and attempt to identify both items of evidentiary value and/or those that may indicate a threat to national security. Compliance Enforcement Investigations Handbook January 25, 2010 27 OFFICIAL USE ONLY B. Intelligence Collection SAs should be mindful of the potential for terrorist conspiracies and/or criminal activity associated with, or known by, the subject of the CEU collateral investigation. If the individual maintains significant information related to other criminal activities, a consideration should be made, in accordance with OI policy on informants, to recruit the individual as a source of information. During the investigation, SAs should make every effort to recruit sources of information from the targets of the CEU collateral, as well as from others interviewed during the course of the investigation. C. Terrorist Nexus Indications SAs should be mindful of terrorist indicators such as, but not limited to, precursor chemicals, anti-government literature, and maps of high interest areas. Specifically, items and indicators identified in previous JTTF investigations included: 1) Uniforms, badges, or other items inconsistent with an individual’s stated occupation; 2) Possession of extremist or anti-American literature or media; 3) Books or materials on law enforcement procedures; 4) Presence of chemical stains or burns and rusted metal items within a dwelling; 5) Evidence of storage rental units; 6) Indications of extensive research into mass transit systems and airports; and 7) Possession of large numbers of calling cards or cellular telephones. SAs working Compliance Enforcement investigations with a terrorist nexus should consult with their local ICE OI JTTF coordinator prior to taking enforcement action. SAs should also consult with their local OCC prior to taking enforcement action in these cases so that NSLD can be put on notice as well as consulted, when appropriate. 7.10 Removability Determination After a review of the nonimmigrant’s status, SAs should determine removability and should process the nonimmigrant in ENFORCE, if removable. Compliance Enforcement Investigations Handbook January 25, 2010 28 OFFICIAL USE ONLY A. Criminal Prosecution Relevant criminal violations should be identified and prosecuted with the assistance of the U.S. Attorney’s Office. Criminal arrests must be documented in TECS via a Seized Asset and Case Tracking System (SEACATS) Report. B. Administrative Proceedings SAs should initiate administrative removal proceedings. Administrative arrests must be documented in ENFORCE and in TECS via a SEACATS Incident Report. Prior to making administrative arrests or initiating administrative removal proceedings on any case where a national security charge or a bar under INA § 212(a)(3) or 237(a)(4) may be applicable, SAs must contact their local OCC so that NSLD may be alerted and/or consulted by the OCC where appropriate. 7.11 Database Reporting/Management Notification Should a CEU-generated lead result in a significant arrest (i.e., criminal alien, subject of a lookout, or INTERPOL subject), SAs should utilize the SEN system to create a SIR. Should a field investigation result in the arrest of an individual not identified as the subject of the investigation, SAs should include all qualifying information related to the incidental arrest. SAs should contact the appropriate CEU Program Manager if the investigation identifies additional criminal violations or when proposed enforcement activities are forthcoming. At the conclusion of the investigation, SAs must document the results in a TECS ROI and annotate any arrests, including collateral arrests, that resulted from the investigation. The closing ROI in TECS should document the alien registration number for the primary subject and/or any collateral subjects encountered in the course of the investigation. Compliance Enforcement Investigations Handbook January 25, 2010 29 OFFICIAL USE ONLY Appendix A SUPERSEDED DOCUMENTS The Compliance Enforcement Handbook supersedes the following policy documents. This list is not all-inclusive: - OI Memorandum, “Delegation to the Chief of the Compliance Enforcement Unit of the Immigration and Customs Enforcement Office of Investigations to Issue Registration Interview Notification” (May 2004) - OI Memorandum, “Deployment of ENFORCE - IDENT Equipment” (June 1, 2004) - U.S. Immigration and Customs Enforcement Standard Operating Procedures for the US-VISIT Exit Pilot Program (November 5, 2004) - OI Memorandum, “Utilization of ENFORCE by ICE Investigations” (January 25, 2005) - OI Memorandum, “Operation United Front” (August 21, 2006) - OI Memorandum, “Operation United Front” (September 29, 2006) - OI Memorandum, “Minimum Standards on Compliance Enforcement Case Closures” (April 18, 2008) - OI Memorandum, “Visa Waiver Enforcement Program Implementation” (April 3, 2009) ___________________________________________________________________________________________________________ Compliance Enforcement Handbook A-i OFFICIAL USE ONLY January 25, 2010 Appendix B ACRONYMS A ADIS AFSP AOR AR ARO AVALANCHE Arrival Departure Information System Alien Flight Student Program Area of Responsibility Address Request Alternate Responsible Official Advanced Visual Abstracted Links and Name Collection Handler Engine B BBS BSC Bureau of Border Security Biometric Support Center C CBP CCD CEU CFR CIRS CIS CLAIMS U.S. Customs and Border Protection Consular Consolidated Database Compliance Enforcement Unit Code of Federal Regulations Criminal Investigative Reporting System Central Index System Computer Linked Automated Information Management System D DACS DHS DOJ DOS DSO Deportable Alien Control System Department of Homeland Security Department of Justice Department of State Designated School Official E EARM EBSVERA EID ENFORCE ENFORCE Alien Removal Module Enhanced Border Security and Visa Entry Reform Act Enforcement Integrated Database Enforcement Case Tracking System __________________________________________________________________________________________________________ Compliance Enforcement Investigations Handbook B-i OFFICIAL USE ONLY January 25, 2010 F FBI FIN FR Federal Bureau of Investigation Fingerprint Identification Number Federal Register G H HQ Headquarters I IAFIS ICE IDENT INA INS INTERPOL IRTPA Integrated Automated Fingerprint Identification System U.S. Immigration and Customs Enforcement Automated Biometric Identification System Immigration and Nationality Act Immigration and Naturalization Service International Criminal Police Organization Intelligence Reform and Terrorism Prevention Act of 2004 J JTTF Joint Terrorism Task Force K-M N NSEERS NSLD NTA NTC National Security Entry-Exit Registration System National Security Law Division Notice to Appear National Targeting Center O OCC OI Office of the Chief Counsel Office of Investigations P PDSO Principal Designated School Official Q __________________________________________________________________________________________________________ Compliance Enforcement Investigations Handbook B-ii OFFICIAL USE ONLY January 25, 2010 R RAPS RO ROI Refugee and Asylee Processing System Responsible Official Report of Investigation S SA SAC SCB SEACATS SEN SEVIS SEVP SIR SIT STSC Special Agent Special Agent in Charge School Certification Branch Seized Asset and Case Tracking System Significant Event Notification Student and Exchange Visitor Information System Student and Exchange Visitor Program Significant Incident Report Secondary Inspection Tool Students and Schools T TECS TSA (former acronym of) Treasury Enforcement Communications System Transportation Security Administration U USC USCIS USNCB US-VISIT USA PATRIOT Act United States Code U.S. Citizenship and Immigration Services U.S. National Central Bureau United States Visitor and Immigrant Status Indicator Technology Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act V VWEP VWP Visa Waiver Enforcement Program Visa Waiver Program W-Z __________________________________________________________________________________________________________ Compliance Enforcement Investigations Handbook B-iii OFFICIAL USE ONLY January 25, 2010
