Philip J. Costa, Deputy Chief Counsel, NYOCC
Genevieve Noble, Assistant Chief Counsel, NYOCC
U.S. Immigration and Customs Enforcement
July 6, 2007

VOLUNTARY DEPARTURE CHEAT SHEET – REMOVAL PROCEEDINGS
(See INA § 240B; 8 CFR § 1240.26)

240B(a) VD (up to 120 days)

240B(b) VD (up to 60 days)

MAXIMUM PERIOD

120 days

60 days

ARRIVING
ALIENS/PHYSICAL
PRESENCE BAR?

R may not be an arriving alien (but there is no
required period of physical presence).

R must have been physically present in the
U.S. for at least one year immediately
preceding service of the NTA (potentially may
include some arriving aliens).

TIMING OF REQUEST

R must make request for VD prior to or at
master calendar hearing at which case is
initially scheduled for a merits hearing.

R may make request up until conclusion of
proceedings.

STAGE OF PROCEEDINGS

Proceedings must not have progressed beyond
30 days after the master calendar hearing at
which the case was initially scheduled for a
merits hearing.

R may make request up until conclusion of
proceedings.

PLEADING AND APPEAL
REQUIREMENTS

R must concede removability, must forego all
additional requests for relief, and must waive
appeal of all issues.

R may contest removability, litigate additional
requests for relief, and reserve appeal on all
issues.

DEPARTURE AT OWN
EXPENSE

Not necessarily. See Matter of Arguelles, 22
I&N Dec. 811, 817 (BIA 1999); INA
§ 241(e)(3)(C).

8 CFR § 1240.26(c)(1)(iv) requires R to prove
that he has the means to depart immediately.
But see INA § 241(e)(3)(C).

TRAVEL DOCUMENT

R must present a valid travel document (unless
DHS already has R’s travel document, or
travel document is not required by country to
which departing). IJ’s order may provide for
presentation of travel document within no
more than 60 days.

R must present valid travel document for
inspection by the DHS before VD is granted.

BOND/OTHER CONDITIONS

IJ, in her discretion, may impose a bond. R
also must satisfy any other conditions that the
IJ imposes to ensure timely departure.

IJ must impose a VD bond of at least $500, to
be paid within 5 business days of entry of VD
order. R also must satisfy any other conditions
that IJ imposes to ensure timely departure.

DISCRETION

R must merit a favorable exercise of
discretion.

R must merit a favorable exercise of
discretion.

AGGRAVATED FELONY
BAR

R is barred if removable per INA
§ 237(a)(2)(A)(iii) (aggravated felony).

R is barred if removable per INA
§ 237(a)(2)(A)(iii) (aggravated felony).

SECURITY BAR

R is barred if removable per INA § 237(a)(4)
(security and related grounds) (regs contain
more inclusive bar than statute).

R is barred if removable per INA § 237(a)(4)
(security and related grounds).

GMC BAR?

No express GMC requirement (but GMC
issues may be relevant to discretion).

R must demonstrate GMC for at least five
years immediately preceding the VD
application.

PREVIOUS VD BAR

R is barred if previously afforded VD in
removal proceedings after having been found
inadmissible per INA § 212(a)(6)(A) (i.e., as a
PWAP).

R is barred if previously afforded VD in
removal proceedings after having been found
inadmissible per INA § 212(a)(6)(A) (i.e., as a
PWAP).

BY STIPULATION?

Yes, but only for purposes of overcoming
problems with timing of request or stage of
proceedings, and only with DCC approval.

No.

ALTERNATE ORDER OF
REMOVAL

IJ must enter an alternate order of removal.

IJ must enter an alternate order of removal.

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Alfred, Angela A
From:
Sent:
To:

(b)(6), (b)(7)(C)

@dhs.gov]

Friday, November 14, 2008 1:32 PM
(b)(6), (b)(7)(C)

Subject: NTA-requierment, Special Circumstances and Prosecutorial discretion

Chapter 2
Immigration Proceedings
2.2 Notice to Appear
I. INTRODUCTION
Removal proceedings, conducted under section 240 of the Immigration and Nationality Act (INA) to
determine the deportability or inadmissibility of an alien, are commenced by the filing of a Notice to
Appear (Form I-862) with the Immigration Court. 8 C.F.R. §§ 1003.14(a), 1239.1(a); Jimenez-Angeles
v. Ashcroft, 291 F.3d 594, 600 (9th Cir. 2002) (filing of NTA, not service on the alien, commenced
removal proceedings); Morales-Ramirez v. Reno, 209 F.3d 977, 981-82 (7th Cir. 2000); see generally
John J. Dvorske, Annotation, Commencement of Deportation Proceedings Under the Antiterrorism and
Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), 185 A.L.R. FED. 221 (2003). The NTA gives the alien notice of the charges of removability
against the alien under the Immigration and Nationality Act and the allegations of fact that make the
alien removable as charged.

II. PROSECUTORIAL DISCRETION
The Government’s decision whether to institute removal or other proceedings and what charges to bring
involves the exercise of prosecutorial discretion. Carranza v. INS, 277 F.3d 65 (1st Cir. 2002);
Chapinski v. Ziglar, 278 F.3d 718, 720-21 (7th Cir. 2002); Medina v. United States, 259 F.3d 220, 227
(4th Cir. 2001); Cabasug v. INS, 847 F.2d 132, 1324 (9th Cir. 1988); Johns v. Dept. of Justice, 653 F.2d
884, 890 (5th Cir. 1981); Matter of Bahta, 22 I&N Dec. 1381, 1391-1392 (BIA 2000); Memorandum
from the General Counsel to the Commissioner on INS Exercise of Prosecutorial Discretion (HQCOU
90/16-P). The Government is not required to advance every conceivable basis for removability in the
Notice to Appear. See De Faria v. INS, 13 F.3d 422, 424 (1st Cir. 1993).
Prosecutorial discretion is strongest when the matter involves the enforcement of immigration laws.
Harisiades v. Shaughnessy, 342 U.S. 580, 596-597 (1952). The Supreme Court has emphasized that the
defense of selective prosecution is generally unavailable in removal proceedings. The Court stated, “As
a general matter, ... an alien unlawfully in this country has no constitutional right to assert selective
enforcement as a defense against his deportation.” Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471, 491-492 (1999). The Board of Immigration Appeals has repeatedly held that
the decision whether to institute proceedings involves the exercise of prosecutorial discretion that
neither the Immigration Court nor the Board shall review. See Matter of Bahta, 22 I&N Dec. 1381,
1391-1392 (BIA 2000); Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998); Matter of U-M-, 20 I&N
Dec. 327, 333 (BIA 1991); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 505 (BIA 1980); Matter of
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Marin, 16 I&N Dec. 581, 589 (BIA 1978); Matter of Geronimo, 13 I&N Dec. 680, 681 (BIA 1971).
The Government may cancel an NTA in its exercise of prosecutorial discretion before jurisdiction vests
with the Immigration Court. See Cortez-Felipe v. INS, 245 F.3d 1054 (9th Cir. 2001) (dismissing
petition to reinstate OSC served on alien but not filed with Immigration Court); Morales-Ramirez v.
Reno, 209 F.3d 977, 980-82 (7th Cir. 2000) (same); Matter of G-N-C-, 22 I&N Dec. 281, 283-284 (BIA
1998) (harmless error to terminate removal proceedings without considering the alien’s arguments); 8
C.F.R. § 1239.2(a). Once the Notice to Appear is filed with the Immigration Court, jurisdiction vests
with the court and removal proceedings commence. The Government then may move to dismiss
proceedings pursuant to applicable regulations. Id.; 8 C.F.R. § 1239.2(c).
There is no statute of limitations as to when deportation or removal proceedings may commence. Asika
v. Ashcroft, 362 F.3d 264, 268 (4th Cir. 2004) (no INA provision refers “to any time limitation on
deportation at all”); Biggs v. INS, 55 F.3d 1398, 1401 (9th Cir. 1995) (“Deportation in fact has no
statute of limitations.”); Costa v. INS, 233 F.3d 31, 38 (1st Cir. 2000) (“There is no set time either for
initiating a deportation proceeding or for filing a served OSC. Indeed, as we already have remarked, the
INS has virtually unfettered discretion in such respects.”); Matter of S-, 9 I&N Dec. 548, 553 (AG 1962)
(INA has no statute of limitations); cf. Dipeppe v. Quarantillo, 337 F.3d 326, 333-334 (3rd Cir. 2003)
(dismissing regulatory violation alleged in 8-year delay between service of OSC and placing alien case
before an Immigration Judge with an NTA, because in INA § 239(d)(2) Congress declared: “Nothing in
this subsection shall be construed to create any substantive or procedural right or benefit that is legally
enforceable by any party against the United States or its agencies or officers or any other person.”);
Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995) (INA provision, prohibiting construction of
amendment to create any substantive or procedural right or benefit that is legally enforceable by any
party against the United States or its agencies or officers or any other person, denied alien standing to
seek mandamus relief to obtain expedited deportation hearing before targeted date of release from
incarceration).
Moreover, the Government may not be estopped from seeking the deportation or removal of an alien
merely because of its delay. See INS v. Miranda, 459 U.S. 14, 18-19 (1982) (18-month delay by INS in
processing application for permanent residency did not estop INS); Montana v. Kennedy, 366 U.S. 308,
314-315 (1961) (failure to issue passport to pregnant mother did not estop Government to deny
citizenship to child born in Italy) ; Lopez-Urenda v. Ashcroft, 345 F.3d 788, 793 (9th Cir. 2003) (an
alien can have no settled expectations of being placed in deportation rather than removal proceedings);
Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1108 (9th Cir.2003) (any expectation of being placed in
deportation proceedings that the alien might have had “could not support a sufficient expectation as to
when it would commence”); Uspango v. Ashcroft, 289 F.3d 226, 230 (3d Cir.2002) (no entitlement to
being placed in deportation rather than removal proceedings); Cortez-Felipe v. INS, 245 F.3d 1054 (9th
Cir. 2001) (same); Costa v. INS, 233 F.3d 31 (1st Cir. 2000) (same); Morales-Ramirez v. Reno, 209
F.3d 977, 980-82 (7th Cir. 2000) (same); Santamaria-Ames v. INS, 104 F.3d 1127, 1133 (9th Cir. 1996)
(“Mere file processing delay alone is insufficient to estop the government.”); United States v. UllysesSalazar, 28 F.3d 932, 937 (9th Cir. 1994), cert. denied, 514 U.S. 1020 (1995) (“The mere passage of
time is insufficient.”); Hamadeh v. INS, 343 F.2d 530, 532-533 (7th Cir. 1965) (four-year delay in
commencing deportation proceedings did not estop INS). In order for the Government to be estopped
from deporting alien because of delays involved in its investigation, the alien must show that
Government’s conduct amounted to affirmative misconduct and must show that misconduct was
prejudicial to him. Mendoza-Hernandez v. INS, 664 F.2d 635, 638 (7th Cir. 1981).

III.

CONTENTS OF A NOTICE TO APPEAR
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A.

Legal Sufficiency of a Notice to Appear

The Notice to Appear is designed to satisfy the due process requirement that the alien receive notice of
removal proceedings and an opportunity to be heard. See Landon v. Plasencia, 459 U.S. 21, 32-33
(1982); Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962). Charging documents are required to inform
aliens of the charges and allegations against them with enough precision to allow them to properly
defend themselves. Xiong v. INS, 173 F.3d 601, 608 (7th Cir. 1999); Macleod v. INS, 327 F.2d 453
(9th Cir. 1964); Takeo Tadano v. Manney, 160 F.2d 665, 667 (9th Cir. 1947); Matter of Raqueno, 17
I&N Dec. 10 (BIA 1979). However, “administrative pleadings are to be liberally construed.” VillegasValenzuela v. INS, 103 F.3d 805, 811 (9th Cir. 1996). Harmless clerical errors in the NTA do not affect
removability. Chowdhury v. INS, 249 F.3d 970, 973 n. 2 (9th Cir. 2001) (error in the NTA in citing the
statute that made the alien deportable).
Under section 239 of the Act, a Notice to Appear must specify:
The nature of the proceedings against the alien
The legal authority under which the proceedings are conducted.
z The acts or conduct alleged to be in violation of law.
z The charges against the alien and the statutory provisions alleged to have been violated.
z The alien may be represented by counsel and the alien will be provided (i) a period of time to
secure counsel and (ii) a current list of counsel who may be able to represent the alien at little or
no cost (commonly referred to as the “List of Legal Service Providers”)
z The requirement that the alien must immediately provide a written record of an address and
telephone number (if any) at which the alien may be contacted respecting proceedings under
section 240.
z The requirement that the alien must immediately provide a written record of any change of
address or telephone number.
• The consequences under section 240(b)(5) of the Act for failure to provide address and
telephone information.
• The time and place at which the proceedings will be held and the consequences under section
240(b)(5) of the Act of the failure, except under exceptional circumstances, to appear at removal
proceedings.
z
z

See INA § 239(a)(1); 8 C.F.R. § 1003.15.
Some of these requirements are satisfied in the boilerplate language found on the Notice to Appear. For
example, an alien’s right to be represented by an attorney or individual authorized to represent persons
before EOIR is clearly stated on the back of a Notice to Appear. The allegations and charge of
removability will satisfy the remaining requirements set forth in §239(a)(1) of the Act. Additionally, the
Service is required to provide certain administrative information to the Immigration Court. 8 C.F.R. §
1003.15(c).
When determining whether a Notice to Appear is legally sufficient keep in mind the following: (a) Are
the charges appropriate and accurate? (b) Do the factual allegations support the charge of removability?
and (c) Is there evidence to establish the factual allegations and charge of removability? If the Service
alleges the alien has been admitted but is now removable, there should be an allegation setting forth the
alien’s admission. Conversely, if the alien is present in the United States without having been admitted
or paroled there should be an allegation detailing the method of entry into the United States.

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Practice Tip: Is the alien charged under the correct section of law? Arriving aliens
and aliens present in the United States who have not been admitted or paroled should
only be charged under section 212 of the Act. Conversely, aliens who have been
admitted but are now deportable should only be charged under section 237 of the Act.

B.

Officers Authorized to Issue a Notice to Appear

Only those officers specifically authorized by regulation may issue a Notice to Appear. 8 C.F.R. §
1239.1. Any immigration officer performing an inspection of an arriving alien at a port-of-entry may
issue a Notice to Appear to such an alien. Id. In addition, the following officers (or officers acting in
such capacity) may issue a Notice to Appear:
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z
z

District directors (except foreign);
Deputy district directors (except foreign);
Chief patrol agents;
Deputy chief patrol agents;
Assistant chief patrol agents;
Patrol agents in charge;
Assistant patrol agents in charge;
Field operations supervisors;
Special operations supervisors;
Supervisory border patrol agents;
Service center directors;
Deputy service center directors;
Assistant service center directors for examinations;
Supervisory district adjudications officers;
Supervisory asylum officers;
Officers in charge (except foreign);
Assistant officers in charge (except foreign);
Special agents in charge;
Deputy special agents in charge;
Associate special agents in charge;
Assistant special agents in charge;
Resident agents in charge;
Supervisory special agents;
Directors of investigations;
District directors for interior enforcement;
Deputy or assistant district directors for interior enforcement;
Director of detention and removal;
Field office directors;
Deputy field office directors;
Supervisory deportation officers;
Supervisory detention and deportation officers;

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z
z
z
z
z
z
z

Directors or officers in charge of detention facilities;
Directors of field operations;
Deputy or assistant directors of field operations;
District field officers;
Port directors;
Deputy port directors; or
Other officers of employees of the Department of Homeland Security or of the United States who
are delegated the authority as provided by 8 C.F.R. § 2.1 to issue notices to appear.

8 C.F.R. § 1239.1.
The issuing officer’s signature is found in the lower right corner of the front of the Notice to Appear.
Ideally, the officer’s name and title should be listed to ensure an authorized individual has issued the
document.

C.

Asylees and Refugees

Removal proceedings should not commence against an alien who has received asylum, withholding of
removal, or refugee status, and still has that status, until procedures to revoke the status have begun. 8
C.F.R. §§ 207.9, 1208.24. The Government should give notice of intent to terminate asylum,
withholding or refugee status before, or simultaneous with, the filing of any NTA. Id. The Asylum
Office issues the notice of intent to terminate if it had granted the status. 8 C.F.R. § 1208.24. If an
Immigration Court granted the alien asylum or withholding, no NTA may be filed but a motion to
reopen proceedings should be filed with a notice of intent to terminate status.

D.

Temporary Resident Aliens

The Ninth Circuit has explained that the Government need no longer terminate a respondent’s temporary
resident status under INA § 245A before commencing removal proceedings:
In Matter of Medrano, the BIA held that, as a condition precedent to the commencement
of a deportation proceeding, the INS was required to terminate the temporary resident
status of an alien who commits a deportable offense after acquiring temporary resident
status.
However, this requirement has been eliminated by 8 C.F.R. § 245a.2(u)(2)(ii), which
became effective on May 31, 1995. This section provides for the institution of
deportation proceedings and the automatic termination of temporary resident status upon
the entry of a final order of deportation in certain cases, including those where the basis
for deportation is an aggravated felony conviction. See 8 U.S.C. § 1251(a)(2)(A)(iii)
(providing for the deportation of convicted aggravated felons).
Perez v. INS, 72 F.3d 256, 258 n. 2 (2d Cir. 1995).

E. Members of U.S. Armed Forces
The Special Agent in Charge (SAC) must request authorization from Marco Salazar, Interim Chief,
Public Safety, HQ, before issuance of an NTA against current members of the United States armed
forces. John Clark signs off on the request. Former Section 14.2(d)(7) of the Special Agent’s Field
Manual (M-490), former Standard Operating Procedures for Enforcement Officers (SOP) § V.D.7. and
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former Operating Instructions (O.I.) § 242.1(a)(18) restricted issuance of an NTA against current or
former members of the U.S. armed forces. The O.I.’s were rescinded effective June 24, 1997. See
generally Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 484 n. 8 (1999)
(noting that “internal INS guidelines ... were apparently rescinded on June 27, 1997”). Current policy is
that an NTA should not issue against an alien who is a current or former member of the U.S. military
and who is eligible for naturalization under sections 328 or 329 of the NTA, notwithstanding
removability. The character of military service and the basis for removal should be considered before
issuance of the NTA. See Memorandum from the Acting Director of the ICE Office of Investigations
entitled “Issuance of Notices to Appear, Administrative Orders of Removal, or Reinstatement of a Final
Removal Order on Aliens with United States Military Service” (June 21, 2004).

F.

Diplomats

Section 14.2(d)(.87) of the Special Agent’s Field Manual (M-490) restricts issuance of an NTA against
aliens who appear to have diplomatic status:
Processing diplomats. Before you may issue a Notice to Appear against an alien who may
have diplomatic status, you must contact the State Department to ensure that diplomatic
status no longer exists and that there is no diplomatic immunity from legal process.
Contact the State Department by completely filling out Form I-566 and sending it by
facsimile, or relay the information by telephone and record the response.
This provision does not necessarily create a judicially enforceable right. See Pasquini v. Morris, 700
F.2d 658, 662 (11th Cir.1983) (holding that “[t]he internal operating procedures of the INS are for the
administrative convenience of the INS only”); Dong Sik Kwon v. INS, 646 F.2d 909, 918-19 (5th
Cir.1981) (stating that INS operations instructions “do not have the force of law”); but see Nicholas v.
INS, 590 F.2d 802, 806 (9th Cir.1979) (determining that INS guideline “far more closely resembles a
substantive provision for relief than an internal procedural guideline”).

III. ADDITIONAL LODGED CHARGES
The Government may lodge additional charges during removal proceedings. 8 C.F.R. §§ 1003.30,
1240.10(e); Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962); Crain v. Boyd, 237 F.2d 927, 931 (9th
Cir. 1956); Galvan v. Press, 201 F.2d 302, 307 (9th Cir. 1953), aff’d, 347 U.S. 522 (1954); U. S. ex rel.
Sollazzo v. Esperdy, 187 F.Supp. 753, 755 (S.D.N.Y. 1960), aff’d, 285 F.2d 341 (2d Cir. 1961), cert.
denied, 366 U.S. 905 (1961). The alien may be granted a reasonable continuance to respond to the
lodged charge(s) or allegation(s) contained in the Form I-261. Id. Due process is violated if removal is
based on a ground of removability of which the Government fails to give the alien adequate notice.
Chowdhury v. INS, 249 F.3d 970 (9th Cir. 2001); Xiong v. INS, 173 F.3d 601, 608 (7th Cir. 1999). But
there is no set rule about the period of notice required.
When a possible ground of excludability developed during the course of an exclusion hearing, the
Immigration Court could rule upon the ground if the alien was informed of the issue at some point
during the hearing and the alien was given a reasonable opportunity to respond. Matter of Salazar, 17
I&N Dec. 167, 169 (BIA 1979), cited in, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); see also
Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 100-102 (1903) (oral notice of
grounds of deportability satisfied due process); Siniscalchi v. Thomas, 195 Fed. 701 (6th Cir. 1912)
(deportation lawfully based on ground of deportability that developed during hearing). Nevertheless, the
best practice is to amend the charging document by serving the alien with a Form I-261 and lodging it
with the Immigration Court a reasonable period of time before the hearing. See 8 C.F.R. §§ 1003.30,
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1240.10(e); Snajder v. INS, 29 F.3d 1203 (7th Cir. 1994) (IJ erred in failing to re-advise alien of right to
counsel after INS lodged additional charge).

IV.

SERVICE OF THE NOTICE TO APPEAR
A.

Generally

Due process requires that aliens receive notice of their removal hearings that is reasonably calculated to
reach them. See Dobrota v. INS, 311 F.3d 1206, 1210 (9th Cir. 2002). Section 239 specifies how
service of the Notice to Appear is to be made. INA § 239(a), (c); Matter of G-Y-R-, 23 I&N Dec. 181
(BIA 2001). The NTA must be given in person to the alien, or if personal service is not practicable,
[1]

through service by mail to the alien or the alien’s counsel of record, if any.
Id. Notice to the alien’s
counsel or representative is deemed notice to the alien. See INA § 240(b)(5)(A); 8 C.F.R. § 1292.5(a);
Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (notice was adequate where served only upon
petitioners' attorney); Wijeratne v. INS, 961 F.2d 1344, 1347 (7th Cir. 1992) (notice received by alien's
accredited representative was sufficient); Sewak v. INS, 900 F.2d 667, 670 n. 6 (3d Cir. 1990); ReyesArias v. INS, 866 F.2d 500, 503 (D .C. Cir. 1989) (service of a notice of hearing to an alien’s counsel is
sufficient to afford notice to the alien); Chang v. Jiugni, 669 F.2d 275, 277 (5th Cir. 1982); Matter of
Rivera-Claros, 21 I&N Dec. 599, 602 (BIA 1996).
Notice is sufficient if it is provided by mail to the most recent address provided by the alien. INA § 240
(b)(5)(A); 8 C.F.R. § 1003.26(d).
The rule is well settled that if a letter properly directed is proved to have been either put
into the post-office or delivered to the postman, it is presumed, from the known course of
business in the post-office department, that it reached its destination at the regular time,
and was received by the person to whom it was addressed.
Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1009 (9th Cir. 2003), quoting Rosenthal v. Walker, 111 U.S.
185, 193 (1884). However, a sworn affidavit of nonreceipt from the addresse can rebut the
presumption. Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002). If the notice is sent using an incorrect
zip code, there is no presumption of proper delivery. Busquets-Ivars v. Ashcroft, 333 F.3d 1008 (9th
Cir. 2003).
The Government may use certified mail to gain a stronger presumption of delivery. See Salta v. INS,
314 F.3d 1076, 1079 (9th Cir.2002); Matter of Grijalva, 21 I&N Dec. 27, 32 (BIA 1995) (allowing an
alien to be charged with receipt when the certified mail receipt has been signed “by the respondent or a
responsible person at the respondent's address”). If the Government cannot produce a return receipt for
the mailed notice, any presumption of delivery disappears. See Busquets-Ivars v. Ashcroft, 333 F.3d
1008, 1009 (9th Cir. 2003) (cases cited therein); Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001).
However, the alien’s refusal to accept delivery of certified mail does not invalidate service of the NTA.
See Fuentes-Argueta v. INS, 101 F.3d 867, 871 (2nd Cir.1996) (concluding in absentia deportation
allowed if notice of hearing sent by certified mail was returned unclaimed); Matter of M-D-, 23 I&N
Dec. 540, 542 (BIA 2002) (same). “An alien does not have to actually receive notice of a deportation
hearing in order for the requirements of due process to be satisfied.” Farhoud v. INS, 122 F.3d 794, 796
(9th Cir. 1997) (receipt of certified mail by someone other than the alien at the address he provided was
sufficient); Tapia v. Ashcroft, 351 F.3d 795, 798 (7th Cir. Dec 16, 2003) (same).

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Service of a Notice to Appear automatically terminates parole. See 8 C.F.R. § 1212.5(e)(2)(i) (“When a
charging document is served on the alien, the charging document will constitute written notice of
termination of parole, unless otherwise specified.”). Service of the NTA also stops accrual of
continuous residence or continuous physical presence for cancellation of removal. See INA 240A(d)(1);
Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000).

B.

Juveniles

Special care must be taken in the case of juveniles under age 14 because they cannot be personally
served with the NTA. See 8 C.F.R. §§ 1103.5a(c)(2)(ii), 1236.2(a) (providing that service on an alien
under 14 years of age shall be made on the person with whom the minor resides). Usually service of the
NTA must be made on their parents:
The regulations governing service of a notice to appear on a minor respondent do not
explicitly require service on the parent or parents in all circumstances. If a minor
respondent's parents are not present in this country, service on an uncle or other near
relative accompanying the child may suffice. However, when it appears that the minor
child will be residing with her parents in this country, as in this case, the regulation
requires service on the parents, whenever possible, in addition to service that may be
made on an accompanying adult or more distant relative. Therefore, under the facts in
this case, we find that the Immigration Judge correctly determined that the Service failed
to demonstrate clear, unequivocal, and convincing evidence of proper service of the
Notice to Appear.
Matter of Mejia-Andino, 23 I&N Dec. 533, 536-537 (BIA 2002) (footnotes omitted).
The U.S. Court of Appeals for the 9th Circuit has concluded that the any adult who receives custody of a
minor alien from DHS must be served with the charging document and hearing notice, despite 8 C.F.R.
§ 1103.5a(c)(2)(ii) that only requires this service if the minor is under the age of 14. Flores-Chavez v.
Ashcroft, 362 F.3d 1150, 1156-1157
(9th Cir. 2004).
Service of an NTA issued against a minor may properly be made on the director of a facility in which
the minor is detained. See 8 C.F.R. §§ 103.5a(c)(2)(ii), 1236.2(a); Matter of Amaya, 21 I&N Dec. 583,
584-585 (BIA 1996).

C.

Confined and Mentally Incompetent Aliens

Service of the NTA on confined aliens is on the alien and his custodian, except where the confined alien
is mentally incompetent service is only on the custodian:
If a person is confined in a penal or mental institution or hospital and is competent to
understand the nature of the proceedings initiated against him, service shall be made both
upon him and upon the person in charge of the institution or the hospital. If the confined
person is not competent to understand, service shall be made only on the person in charge
of the institution or hospital in which he is confined, such service being deemed service
on the confined person.
8 C.F.R. § 103.5a(c)(2)(i).
Personal service, or service by mail if personal service is not practicable, of the NTA is to be made on
the custodian of the confined or mentally incompetent alien. Compare 8 C.F.R. §§ 103.5a(c)(2)(ii) and
1239.1(b) with INA §239(a)(1). “In case of mental incompetency, whether or not confined in an
institution, … service shall be made upon the person with whom the incompetent or the minor resides.”
8 C.F.R. § 103.5a(c)(2)(ii).
2010FOIA4519.000009

7/12/2010

1)

Page 9 of 9

D.

Initial Hearing after NTA Served

Unless requested by the alien, no hearing will be scheduled earlier than ten days from the date of service
of the NTA. The delay is to allow the alien the opportunity to obtain counsel. INA § 239(b). Should
the alien seek a prompt hearing, the alien should execute the section entitled “Request for Prompt
Hearing.” If an alien is not properly served with the NTA but he appears in court, the NTA may be
served on him or her at that time, but the alien may have ten days to prepare and to obtain counsel. See
INA § 239(b)(1).

E.

Consequences of Improper Service of the NTA

If an alien is not properly served with the NTA, jurisdiction never vests with the Immigration Court. If
the alien fails to appear after improper service, the Immigration Judge will dismiss or terminate
proceedings. Matter of Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990). The Service will have to effect
proper service at a later time. When an alien properly served with an NTA fails to appear at removal
proceedings, the Immigration Judge shall enter an in absentia order of removal if the alien is removable.
See INA § 239(b)(5)(A); 8 C.F.R. § 1003.26(c).
In Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), the Board held that in absentia order of removal is
inappropriate where the alien did not receive the NTA served by certified mail and the alien’s address of
record was several years old. An alien who is ordered removed without receiving proper service of the
NTA may move to reopen proceedings. See INA § 240(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii). The
alien who alleges improper service of the NTA shall not be removed during pendency of his or her
motion to reopen. INA § 240(b)(5)(C).

[1]

The BIA held that, for EOIR notice purposes, in-person-service was not practicable if the alien was not present in court.
See Matter of Grijalva, 21 I&N Dec. 27, 34-35 (BIA 1995).

2010FOIA4519.000010

7/12/2010

IMMIGRATION CONSEQUENCES OF CONVICTIONS SUMMARY CHECKLIST*
GROUNDS FOR DEPORTATION [apply to
lawfully admitted noncitizens, such as a lawful
permanent resident [LPR] – greencard holder]
Aggravated Felony conviction
➢ Consequences (in addition to deportability):
◆ Ineligibility for most waivers of removal
◆ Ineligibility for voluntary departure
◆ Permanent inadmissibility after removal
◆ Subjects client to up to 20 years of prison if s/he
illegally reenters the U.S. after removal
➢ Crimes covered (possibly even if not a felony):
◆ Murder
◆ Rape
◆ Sexual Abuse of a Minor
◆ Drug Trafficking [probably includes any felony
controlled substance offense; may include
misdemeanor marijuana sale offenses and 2nd
misdemeanor possession offenses]
◆ Firearm Trafficking
◆ Crime of Violence + 1 year sentence**
◆ Theft or Burglary + 1 year sentence**
◆ Fraud or tax evasion + loss to victim(s) > $10,000
◆ Prostitution business offenses
◆ Commercial bribery, counterfeiting, or forgery +
1 year sentence**
◆ Obstruction of justice offenses + 1 year sentence**
◆ Certain bail-jumping offenses
◆ Various federal criminal offenses and possibly state
analogues [money laundering, various federal
firearms offenses, alien smuggling, etc.]
◆ Attempt or conspiracy to commit any of the above
Controlled Substance conviction
➢ EXCEPT a single offense of simple possession of 30g
or less of marijuana
Crime Involving Moral Turpitude [CIMT] conviction

➢ For crimes included, see Grounds of Inadmissibility
➢ An LPR is deportable for 1 CIMT committed within
5 years of admission into the U.S. and for which a
sentence of 1 year or longer may be imposed
➢ An LPR is deportable for 2 CIMT committed at any
time “not arising out of a single scheme”
Firearm or Destructive Device conviction
Domestic Violence conviction or other domestic
offenses, including:
➢ Crime of domestic violence
➢ Stalking
➢ Child abuse, neglect or abandonment
➢ Violation of order of protection (criminal or civil)

GROUNDS OF INADMISSIBILITY [apply
to noncitizens seeking lawful admission,
including LPRs who travel out of US]
Conviction or admitted commission of a
Controlled Substance Offense, or DHS
(formerly INS) has reason to believe
individual is a drug trafficker
➢ No 212(h) waiver possibility (except for
a single offense of simple possession of
30g or less of marijuana)
Conviction or admitted commission of a
Crime Involving Moral Turpitude [CIMT]
➢ This category covers a broad range of
crimes, including:
◆ Crimes with an intent to steal or
defraud as an element [e.g., theft,
forgery]
◆ Crimes in which bodily harm is
caused or threatened by an
intentional act, or serious bodily
harm is caused or threatened by a
reckless act [e.g., murder, rape, some
manslaughter/assault crimes]
◆ Most sex offenses
➢ Petty Offense Exception—for one CIMT
if the client has no other CIMT + the
offense is not punishable > 1 year (e.g.,
in New York can’t be a felony) + does
not involve a prison sentence > 6
months
Prostitution and Commercialized Vice
Conviction of 2 or more offenses of any
type + aggregate prison sentence of
5 years

INELIGIBILITY FOR
U.S. CITIZENSHIP
Certain convictions or
admissions of crime will
statutorily bar a finding
of good moral character
for up to 5 years:
➢ Controlled
Substance Offense
[except in case 30g
of marijuana]
➢ Crime Involving
Moral Turpitude
➢ 2 or more offenses
of any type +
aggregate prison
sentence of
5 years
➢ 2 gambling
offenses
➢ Confinement to a
jail for an aggregate
period of 180 days
Aggravated felony
may bar a finding of
moral character forever,
and thus may make
your client permanently
ineligible for citizenship

INELIGIBILITY FOR LPR CANCELLATION OF REMOVAL
➢ Aggravated Felony Conviction
➢ Offense covered under Ground of Inadmissibility when committed
within the first 7 years of residence after admission in the U.S.
INELIGIBILITY FOR ASYLUM OR WITHHOLDING OF REMOVAL BASED
ON THREAT TO LIFE OR FREEDOM IN COUNTRY OF REMOVAL

“Particularly serious crimes” make noncitizens ineligible for asylum
and withholding. They include:
➢ Aggravated felonies
◆ All will bar asylum
◆ Aggravated felonies with aggregate 5 year sentence of
imprisonment will bar withholding
◆ Aggravated felonies involving unlawful trafficking in controlled
substances will presumptively bar withholding
➢ Other serious crimes—no statutory definition [For sample case law
determinations, see Appendix F in NYSDA Immigration Manual]

CONVICTION DEFINED
“A formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where:
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilt, AND
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”
THUS:
◆ A drug treatment or domestic violence counseling alternative to incarceration disposition could be considered a conviction for
immigration purposes if a guilty plea is taken (even if the guilty plea is or might later be vacated)
◆ A deferred adjudication disposition without a guilty plea (e.g., NY ACD) will not be considered a conviction
◆ A youthful offender adjudication will not be considered a conviction if analogous to a federal juvenile delinquency disposition
(e.g., NY YO)
**This summary checklist was originally prepared by former NYSDA Immigrant Defense Project Staff Attorney Sejal Zota. Because this checklist is frequently
updated, please visit our Internet site at <http://www.nysda.org> (click on Immigrant Defense Project page) for the most up-to-date version.
**The 1-year requirement refers to an actual or suspended prison sentence of 1 year or more [A New York straight probation or conditional discharge
without a suspended sentence is not considered a part of the prison sentence for immigration purposes.]
(5/03)
2010FOIA4519.000011
Copyright © 2003 New York State Defenders Association

Office ofthe
oflhe Principal Legal Advisor
Homeland Security
U.S. Department of liomelnnd
425 rJ Street,
Stree~ NW
Washington, DC 20536

u.s. Immigration
and Customs
Enforcement
October 24, 2005
MEMORANDUM FOR:

All OPLA Chief Counsel

FROM:

William J.
Principal Legal Ad~ilor
Ad~i"dor
Ad~aor

SUBJECT:

Prosecutorial Discretion

Howardl\(\~
Howardl\()~

As you know, when Congress abolished the Immigration and Naturalization Service
and divided its functions among U.S. Immigration and Customs Enforcement (ICE),
U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration
Services (CIS), the Office of the Principal Legal Advisor (OPLA) was given exclusive
authority to prosecute all removal proceedings. See Homeland Security Act of2002,
Pub. L. No. 107-296, § 442(c), 116
I I 6 Stat. 2135, 2194 (2002) ("the legal advisor * * *
shall represent the bureau in all
a]] exclusion, deportation, and removal proceedings before
the Executive Office for Immigration Review"). Complicating matters for OPLA is
that our cases come to us from CBP, CIS, and ICE, since all three bureaus are
authorized to issue Notices to Appear (NTAs).

OPLA is handling about 300,000 cases in the immigration courts, 42,000 appeals before
the Board oflmmigration
ofImmigration Appeals (BIA
(BlA
(BLA or Board), and 12,000 motions to reopen each
year. Our circumstances in litigating these cases differ in a major respect from our
predecessor, the INS's Office of General Counsel. Gone are the days when INS district
counsels, having chosen an attorney-client model that required client consultation
before INS trial attorneys could exercise prosecutorial discretion, could simply walk
down the hall to an INS district director, immigration agent, adjudicator, or border
patrol officer to obtain the client's permission to proceed with that exercise. Now
NTA-issuing clients or stakeholders might be in different agencies, in different
buildings, and in different cities from our own.
Since the NTA-issuing authorities are no longer all under the same roof, adhering to
INS OGC's attorney-client model would minimize our efficiency. This is particularly
so since we are litigating our hundreds of thousands of cases per year with only 600 or
so attorneys; that our case preparation time is extremely limited, averaging about 20
minutes a case; that our caseload will increase since Congress is now providing more
resources for border and interior immigration enforcement; that
tbat many of the cases that
come to us from NTA-issuers lack supporting evidence like conviction documents; that
we must prioritize our cases to allow
a]]ow us to place greatest emphasis on our national
security and criminal alien dockets; that we have growing collateral duties such as

WWW.lce.gov
www.lce.gov
\VWW.lce.gov

2010FOIA4519.000012

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assisting the Department of Justice with federal court litigation; that in many instances
we lack sufficient staff to adequately brief Board appeals or oppositions to motions to
reopen; and that the opportunities to exercise prosecutorial discretion arise at many
different points in the removal process.
To elaborate on this last point, the universe of opportunities to exercise prosecutorial
discretion is large. Those opportunities arise in the pre-filing stage, when, for example,
we can advise clients who consult us whether or not to file NTAs or what charges and
evide~ce to base them on. They arise in the course of litigating the NTA in
immigration court, when we may want, among other things, to nl0ve to dismiss a case
as legally insufficient, to amend the NTA, to decide not to oppose a grant of relief, to
join in a motion to reopen, or to stipulate to the admission of evidence. They arise after
the immigration judge has entered an order, when we must decide whether to appeal all
or part of the decision. Or they nlay arise in the context of ORO's decision to detain
aliens, when we must work closely with DRO in connection with defending that
decision in the administrative or federal courts. In the 50-plus immigration courtrooms
across the United States in which we litigate, OPLA's trial attorneys continually face
these and other prosecutorial discretion questions. Litigating with maximum efficiency
requires that we exercise careful yet quick judgment on questions involving
prosecutorial discretion. This will require that OPLA's trial attorneys become very
familiar with the principles in this memorandum and how to apply them.
Further giving lise to the need for this guidance is the extraordinary volume of
immigration cases that is now reaching the United States Coutis of Appeals. Since
2001, federal court immigration cases have tripled. That year, there were 5,435 federal
court cases. Four years later, in fiscal year 2004, that number had risen to 14,699
federal court cases. Fiscal year 2005 federal court immigration cases will approximate
15,000. The lion's share of these cases consists of petitions for review in the United
States Courts of Appeal. Those petitions are now overwhelming the Department of
Justice's Office of hnmigration Litigation, with the result that the Department of Justice
has shifted responsibility to brief as many as 2,000 of these appellate cases to other
Departmental conlponents and to the U.S. Attorneys' Offices. This, as you know, has
brought you into greater contact with Assistant U.S. Attorneys who are turning to you
for assistance in remanding some of these cases. This memorandum is also intended to
lessen the nUlnber of such renland requests, since it provides your office with guidance
to assist you in eliminating cases that would later nlerit a relnand.
Given the complexity of imlnigration law, a complexity that federal courts at all levels
routinely acknowledge in published decisions, your expert assistance to the U.S.
Attorneys is critical. I It is all the more important because the decision whether to
1 As you know, if and when your resources permit it, I encourage you to speak with your respective
United States Attorneys' Offices about having those Offices designate Special Assistant U.S. Attonleys
from OPLA's ranks to handle both civil and criminal federal court immigration litigation. The U.S.

2010FOIA4519.000013

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proceed with litigating a case in the federal courts must be gauged for reasonableness,
lest, in losing the case, the courts award attorneys' fees against the government pursuant
to the Equal Access to Justice Act, 28 U.S.C. 2412. In the overall scheme of litigating
the removal of aliens at both the administrative and federal court level, litigation that
often takes years to complete, it is important that we all apply sound principles of
prosecutorial discretion, uniformly throughout our offices and in all of our cases, to
ensure that the cases we litigate on behalf of the United States, whether at the
administrative level or in the federal courts, are truly worth litigating.

**********
With this background in mind, I am directing that all OPLA attorneys apply the
following principles of prosecutorial discretion:
1) Prosecutorial Discretion Prior to or in Lieu of NTA Issuance:
In the absence of authority to cancel NTAs, we should engage in client liaison with
CBP, CIS (and ICE) via, or in conjunction with, CIS/CBP attorneys on the issuance of
NTAs. We should attempt to discourage issuance of NTAs where there are other
options available such as administrative removal, crewman removal, expedited removal
or reinstatement, clear eligibility for an immigration benefit that can be obtained outside
of immigration court, or where the desired result is other than a removal order.
It is not wise or efficient to place an alien into proceedings where the intent is to allow
that person to remain unless, where compelling reasons exist, a stayed removal order
might yield enhanced law enforcement cooperation. See Attachment A (Memorandum
from Wesley Lee, ICE Acting Director, Office of Detention and Removal, Alien
Witnesses and Informants Pending Removal (May 18, 2005)); see also Attachment B
(Detention and Removal Officer's Field Manual, Subchapters 20.7 and 20.8, for further
explanation on the criteria and procedures for stays of removal and deferred action).

Examples:
• Immediate Relative of Service Person- If an alien is an immediate relative of a
military service member, a favorable exercise of discretion, including not issuing an
NTA, should be a prime consideration. Military service includes current or fonner
members of the Armed Forces, including: the United States Army, Air Force, Navy,
Marine Corps, Coast Guard, or National Guard, as well as service in the Philippine
Scouts. OPLA counsel should analyze possible eligibility for citizenship under
Attorneys' Offices will benefit greatly from OPLA SAUSAs, especially given the immigration law
expertise that resides in each of your Offices, the immigration law's great complexity, and the extent to
which the USAOs are now overburdened by federal immigration litigation.

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sections 328 and 329. See Attachment C (Memorandum from Marcy M. Forman~
Director, Office of Investigations, Issuance of Notices to Appeal, Administrative
Orders of Removal, or Reinstatement of a Final Removal Order on Aliens with
United States Military Service (June 21, 2004».

•

Clearly Approvable 1-130/1-485- Where an alien is the potential beneficiary of
a clearly approvable 1-130/1-485 and there are no serious adverse factors that
otherwise justify expulsion, allowi.ng the alien the opportunity to legalize his or her
status through a CIS-adjudicated adjustment application can be a cost-efficient
option that conserves immigration court time and benefits someone who can be
expected to become a lawful permanent resident of the United States. See
Attachment D (Memorandum from William J. Howard, OPLA Principal Legal
Advisor, Exercising Prosecutorial Discretion to Dismiss Adjustment Cases (October
6, 2005)).
• Administrative Voluntary Departure- We may be consulted in a case where

administrative voluntary departure is being considered. Where an alien is eligible
for voluntary departure and likely to depart, OPLA attorneys are encouraged to
facilitate the grant of administrative voluntary departure or voluntary departure
under safeguards. This may include continuing detention if that is the likely end
result even should the case go to the Immigration Court.

•

NSEERS Failed to Register- Where an alien subject to NSEERS registration

failed to timely register but is otherwise in status and has no criminal record, he
should not be placed in proceedings ifhe has a reasonable excuse for his failure.
Reasonably excusable failure to register includes the alien's hospitalization,
admission into a nursing home or extended care facility (where mobility is severely
limited); or where the alien is simply unaware of the registration requirements. See
Attachment E (Memorandum from Victor Cerda, OPLA Acting Principal Legal
Advisor, Changes to the National Security Entry Exit Registration System
(NSEERS)(January 8,2004)).

• Sympathetic Humanitarian Factors- Deferred action should be considered
when the situation involves sympathetic humanitarian circumstances that rise to
such a level as to cry for an exercise of prosecutorial discretion. Examples of this
include where the alien has a citizen child with a serious medical condition or
disability or where the alien or a close family member is undergoing treatment for a
potentially life threatening di.sease. DHS has the most prosecutorial discretion at
this stage of the process.
2) Prosecutorial Discretion after the Notice to Appear has issued, but before
the Notice to Appear has been flIed:
We have an additional opportunity to appropriately resolve a case prior to
expending court resources when an NTA has been issued but not yet filed with the
immigration court. This would be an appropriate action in any of the situations

2010FOIA4519.000015

All OPLA Chief Counsel
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identified in #1. Other situations may also arise where the reasonable and rational
decision is not to prosecute the case.
Example:
• U or T visas- Where a ~~U" or "T" visa application has been submitted, it
may be appropriate not to file an NTA until a decision is made on such an
application. In the event that the application is denied then proceedings
would be appropriate.

3) Prosecutorial Discretion after NTA Issuance and Filing:
The filing of an NTA with the Immigration Court does not foreclose further
prosecutorial discretion by OPLA Counsel to settle a matter. There may be
ample justification to move the court to terminate the case and to thereafter
cancel the NTA as improvidently issued or due to a change in circumstances
such that continuation is no longer in the government interest. 2 We have
regulatory authority to dismiss proceedings. Dismissal is by regulation without
prejudice. See 8 CFR §§ 239.2(c), 1239.2(c). In addition, there are numerous
opportunities that OPLA attorneys have to resolve a case in the immigration
court. These routinely include not opposing relief, waiving appeal or making
agreements that narrow issues, or stipulations to the admissibility of evidence.
There are other situations where such action should also be considered for
purposes ofjudicial economy, efficiency of process or to promote justice.
Examples:

2 Unfortunately,

DHS~s regulations, at 8 C.F.R. 239.1, do not include OPLA's attorneys among the 38

categories of persons given authority there to issue NTAs and thus to cancel NTAs. That being said,
when an OPLA attorney encounters an NTA that lacks merit or evidence, he or she should apprise the
issuing entity of the deficiency and ask that the entity cure the deficiency as a condition ofOPLA's
going forward with the case. If the NTA has already been filed with the immigration court, the OPLA
attorney should attempt to correct it by filing a form 1-261, or, if that will not correct the problem,
should move to dismiss proceedings without prejudice. We must be sensitive, particularly given our
need to prioritize our national security and criminal alien cases, to whether prosecuting a particular case
has little law enforcement value to the cost and time required. Although we lack the authority to sua
sponte cancel NTAs, we can move to dismiss proceedings for the many reasons outlined in 8 CFR §
239.2(a) and 8 CFR § 1239.2(c). Moreover, since OPLA attorneys do not have independent authority
to grant deferred action status, stays of removal, parole, etc., once we have concluded that an alien
should not be subjected to relTIoval, we must still engage the client entity to "defer" the action, issue the
stay or initiate administrative removal.

2010FOIA4519.000016

All OPLA Chief Counsel
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• Relief Otherwise Available- We should consider moving to dismiss
proceedings without prejudice where it appears in the discretion of the OPLA
attorney that relief in the form of adjustment of status appears clearly approvable
based on an approvable 1-130 or 1-140 and appropriate for adjudication by CIS. See
October 6, 2005 Memorandum from Principal Legal Advisor Bill Howard, supra.
Such action may also be appropriate in the special rule cancellation NACARA
context. We should also consider remanding a case to permit an alien to pursue
3
naturalization. This allows the alien to pursue the matter with CIS, the DRS entity
with the principal responsibility for adjudication of ilnmigration benefits, rather than
to take time from the overburdened immigration court dockets that could be
expended on removal issues.
• Appealing Humanitarian Factors- Some cases involve sympathetic
humanitarian circumstances that rise to such a level as to cry for an exercise of
prosecutorial discretion. Examples of this, as noted above, include where the alien
has a citizen child with a serious medical condition or disability or where the alien
or a close family member is undergoing treatment for a potentially life threatening
disease. OPLA attorneys should consider these matters to determine whether an
alternative disposition is possible and appropriate. Proceedings can be reinstituted
when the situation changes. Of course, if the situation is expected to be of relatively
short duration, the Chief Counsel Office should balance the benefit to the
Government to be obtained by terminating the proceedings as opposed to
administratively closing proceedings or asking DRO to stay removal after entry of
an order.
• Law Enforcement Assets/CIs- There are often situations where federal, State or
local law enforcement entities desire to have an alien remain in the United States for
a period of tin1e to assist with investigation or to testify at trial. Moving to dismiss a
case to permit a grant of deferred action may be an appropriate result in these
circumstances. Some offices may prefer to administratively close these cases, which
gives the alien the benefit of remaining and law enforcement the option of
calendaring proceedings at any time. This may result in more control by law
enforcement and enhanced cooperation by the alien. A third option is a stay.
4) Post-Hearing Actions:
Post-hearing actions often involve a great deal of discretion. This includes a
decision to file an appeal, what issues to appeal, how to respond to an alien's appeal,
whether to seek a stay of a decision or whether to join a nl0tion to reopen. OPLA
Once in proceedings, this typically will occur only where the alien has shown prima facie eligibility
for naturalization and that his or her case involves exceptionally appealing or humanitarian factors. 8
CFR §§1239.1
1239.1 (t). It is improper for an immigration judge to terminate proceedings absent an affirmative
communication from DHS that the alien would be eligible for naturalization but for the pendency of the
deportation proceeding. Matter of Cruz, 15 I&N Dec. 236 (BIA 1975); see Nolan v. Holmes, 334 F.3d
189 (2d Cir. 2003) (Second Circuit upholds BIA's reliance on Matter of Cruz when petitioner failed to
establish prima facie eligibility.).
3

2010FOIA4519.000017

All OPLA Chief Counsel
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attorneys are also responsible for replying to motions to reopen and motions to
reconsider. The interests ofjudicial economy and fairness should guide your actions
in handling these matters.
Examples:
• Remanding to an Immigration Judge or Withdrawing Appeals- Where the
appeal brief filed on behalf of the alien respondent is persuasive, it may be
appropriate for an OPLA attorney to join in that position to the Board, to agree to
remand the case back to the immigration court, or to withdraw a government appeal
and allow the decision to become final.
• Joining in Untimely Motions to Reopen- Where a motion to reopen for
adjustment of status or cancellation of removal is filed on behalf of an alien
with substantial equities, no serious criminal or immigration violations, and
who is legally eligible to be granted that relief except that the motion is
beyond the 90-day limitation contained in 8 C.F.R. § 1003.23, strongly
consider exercising prosecutorial discretion and join in this motion to reopen
to permit the alien to pursue such relief to the immigration court.
• Federal Court Remands to the BIA- Cases filed in the federal courts
present challenging situations. In a habeas case, be very careful to assess the
reasonableness of the government's detention decision and to consult with
our clients at DRO. Where there are potential litigation pitfalls or unusually
sympathetic fact circumstances and where the BIA has the authority to
fashion a remedy, you may want to consider remanding the case to the BIA.
Attachments 1-1 and I provide broad guidance on these matters. Bring
concerns to the attention of the Office of the United States Attorney or the
Office of Imn1igration Litigation, depending upon which entity has
responsibility over the litigation. See generally Attachment F (Memorandum
from OPLA Appellate Counsel, U.S. Attorney Remand Recommendations
(rev. May 10, 2005)); see also Attachment G (Memorandum from Thomas
W. Hussey, Director, Office of Immigration Litigation, U.S. Department of
Justice, Remand of Immigration Cases (Dec. 8, 2004)).
• In absentia orders. Reviewing courts have been very critical of in
absentia orders that, for such things as appearing late for court, deprive aliens
of a full hearing and the ability to pursue relief from removal. This is
especially true where court is still in session and there does not seem to be
any prejudice to either holding or rescheduling the healing for later that day.
These kinds of decisions, while they may be technically correct, undermine
respect for the fairness of the removal process and cause courts to find
reasons to set them aside. These decisions can create adverse precedent in
the federal courts as well as EAJA liability. OPLA counsel should be
mindful of this and, if possible, show a measured degree of flexibility, but

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only if convinced that the alien or his or her counsel is not abusing the
removal court process.
5) Final Orders- Stays and Motions to Reopen/Reconsider:
Attorney discretion doesn't cease after a final order. We lTIay be consulted
on whether a stay of removal should be granted. See Attachment B
(Subchapter 20.7). In addition, circumstances nlay develop whether the
proper and just course of action would be to 1nove to reopen the proceeding
for purposes of terminating the NTA.
Exa1nples:
• Ineffective Assistance- An OPLA attorney is presented with a situation where
an alien was deprived of an opportunity to pursue relief, due to incompetent counsel,
where a grant of such relief could reasonably be anticipated. It would be
appropriate, assuming compliance with Matter of Lozada, to join in or not oppose
motions to reconsider to allow the relief applications to be filed.
• Witnesses Needed, Recommend a Stay- State law enforcetTIent authorities need
an alien as a witness in a tnajor criminal case. The alien has a final order and will
be removed from the United States before trial can take place. OPLA counsel may
recommend that a stay of removal be granted and this alien be released on an order
of supervision.

**********
Prosecutorial discretion is a very significant tool that sometimes enables you to deal
with the difficult, complex and contradictory provisions of the immigration laws and
cases involving human suffering and hardship. It is clearly DHS policy that national
security violators, human rights abusers, spies, traffickers both in narcotics and people,
sexual predators and other criminals are removal priorities. It is wise to remember that
cases that do not fall within these categories sometimes require that we balance the cost
of an action versus the value of the result. Our reasoned determination in making
prosecutorial discretion decisions can be a significant benefit to the efficiency and
fairness of the removal process.
Official Use Disclaimer:
This memorandum is protected by the Attorney/Client and Attonley Work product privileges
and is for Official Use Only. This Inemorandum is intended solely to provide legal advice to
the Office of the Chief Counsels (OCC) and their staffs regarding the appropriate and lawful
exercise of prosecutorial discretion, which wiUlead to the efficient nlanagement of resources.
It is not intended to, does not, and may not be relied upon to create or confer any right(s) or
benefit(s), substantive or procedural, enforceable at law by any individual or other party in

2010FOIA4519.000019

All DPLA Chief Counsel
Page 9 of9
removal proceedings, in litigation with the United States, or in any other form or manner.
Discretionary decisions of the DCC regarding the exercise of prosecutorial discretion under
this memorandum are final and not subject to legal review or recourse. Finally this internal
guidance does not have the force of law, or ofa Department of Homeland Security Directive.

2010FOIA4519.000020

ATTACHMENT A

2010FOIA4519.000021

0llicc OJ'f):'kJllWII
o//): 'kJllWII lIlId N"lIIlil'lll 0l't'I"tlli,
U.S. DC(l:ll'tnwllt or lIollJcland
I SlrC:CI. NW
Wa~hillgl{ln. DC 205:H,
Wa~hillgl{ln.

Jj}\
Jj}\

Se('urit~
Se('urit~

~125

u. S. Immigration
and Customs
Enforcement

Fiil!C
i

t\1Erv10RANDUlVl FOR:

All

0'

C

wes«~,

MAY 18 ID05

FR01V1:

c' 19 irector
Office ofDct ion and Removal

SUBJECT:

Alien Witnesscs and Informants Pending Removal

PUl])ose
The Office of Detention and Removal Opcrations (DRO), in consultation with the Office of
Investigations (01) and the Office of the Principle Legal Advisor, is issuing this guidance for cases
of aliens pending removal from the United States for whom there is an interest frolll another law
enforcement agency (LEA). The interest may be for any of the following:
o
o
o

An alien on behalf of which an application for an S-visa has been filed by a federal or state
LEA;
An alien for whom thc Department of Justice (DOJ), Office of Enforcement Operations
(OEO) has indicated possible placement in the Witness Protection Program;
For usc of the alien as an informant hy another LEA.

Discussion
Frequently, DRO field offices receive requests from LEAs to stay the removal of an alien who may
be needed as an infonnant or a witness in a criminal matter. The majority of these cases involve
aliens who have becn convicted of serious crimes and are subj cct to mandatory detention. As the
mission of ORO is to remove aliens and detention is uscd for the purpose of crrecting removal, the
liability for not removing aliens for which a travel document is available rests with ORO. ]n
addition, ORO must follo\v congressional mandates and statutes to remove criminal aliens. As such,
DRO will seek to obtain a removal order for all categories of aliens mentioned in this memorandum
prior to any release or transfer of custody to another agency. The possibility of issuing a stay of
removal or deferred action may bc considered only when compelling rcasons exist. Cases of

Limited Official Use

2010FOIA4519.000022

Alien Witnesses and Informants Pending Removal
Page 2

detained aliens for which removal is not foreseeable arc to be handled under the established Post
Order Custody Review procedures. Disposition of aliens who have not heen 11 laced in removal
proceedings will be made by 01 based on the specifics of the case.

Effective immediately, the below procedures are to be followed by all field offices in these types of
cases:
Aliens Pending an 'S' Visa
Federal and state LEAs may request an S-visa on behalf of an alien through DOJ/OEO, when there is
a need [or infonnation provided by the alien witness or inf01mant in criminal or counter-terrorism
matters. Before the application is sent to OEO, it requires the approval of the local United States
Attomey, as well as the headqu31ters of the LEA. Once the application is certified by OEO, it is sent
to ICE for a final dccision pursuant to 8 CFR § 214.2(t). When HQOI is notified of the filing of an
S-visa for a particular alien, HQOI will issue written notification to HQDRO and coordinate the
issuance of deferred action for the alien. If the alien is detained, HQDRO will coordinate the
transfer of custody of the alien to the appropriate LEA v·,..ith the local Field Office Director. The
LEA is to sign receipt orthe alien. The LEA filing the S-visa application will assume responsibility
[or the alien while the alien remains in the United States and is required to provide periodic reports
to HQOI as to the whereabouts and activities of the alien.
Aliens Authorized for the

~VitJ1ess Securitl'

Program by OEO

Aliens may be granted relocation services or some form of "limited services" by DOJ/OEO. One
slich limited service may be ifOEO considers that the alien's life l11ay be in danger outside the
United States. Once OEO provides written notification to DRO that the alien has been approved for
the \\Fitness Security Program under 18 USC 3521, OEO will identify the LEA who will be picking
up the individual fro111 DRO custody, if the alien is detained. ORO will cnsure that custody of the
individual is transferred to the LEA at a pre-arranged time. The LEA is to sign receipt of and
assume full responsibility for the alien. HQOI will coordinate with HQDRO for the issuance of
deferred action hy HQOl. The LEA will provide periodic reports to HQOl as to the whereabouts
and activities of the alien.
In cases where no LEA is willing to assume clIstody of the al iell, and the alien has been ordered
removed, HQDRO will make a final determination regarding execution of the removal order and
advise the local field office. OEO's request not to remove in and of itself may not be sufficient to
postpone or cancel the removal. HQDRO will notify OEO two weeks prior to any anticipated
removal of the alien. If OEO or an LEA requires the presence of an alien who WllS removed from
the United States, they may request that the alien be paroled back into the United States undcr INA §
212(d)(5). This may be accomplished by the LEA coordinating with the Office of International
Affairs, Parole and Humanitarian Assistance Branch.

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Alien Witnesses and Infonnants Pending Removal
Page 3

Other Detained Alien Informants
For any other alien for whom an LEA is seeking to use an infoo11al1t, usually for a temporary timeperiod, a leller from the appropriate LEA headquarters management official to HQDRO is required.
The letter must address the following: specific reasons for the request to postpone the removal,
timeframe for which the alien will be needed, that the LEA ngrees to take custody of and be
responsible for the alien, and that the LEA will retuol the alien to DRO at the conclusion of the
timeframe noted on the request. Once this infonnation is provided, the final decision will be
coordinated between HQDRO, HQOI, and local DRO. If the request is approved, the LEA is to sign
receipt of and assume full responsibility for the alien. HQOI will coordinate the issuance of a
deferred action notice and will be provided periodic reports as to the whereabouts and activities of
the alien from the LEA.
Conclusion
The disposition of informants and \'v'itness cases pending removal are to he coordinated closely with
HQDRO. As soon as the local field office is notified regarding an interest in the alien from another
agency, HQDRO is to be notified. HQDRO will also work closely with HQOI in order to protect the
interests of ICE. DRO offices are to ensure that the appropriate documentation involving the
transfer Ofcllstody is maintained in the alien's A-file. It is important that DRO offices ensure that
files, DACS records, and documentation from OEO or other LEAs in such cases are properly
safeguarded, as they are law enforcement sensitive.
Any questions may be addressed to John Tsoukaris or Todd Thurlow, HQDRO Custody
Determination Unit.

Limited Official Use

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Page 1 of 13

onlinei~1oIS
online~we

INSERTS PLUS/Detention and Deportation Officer's Field Manual/Detention and Deportation Officer's Field Manual/Chapter 21
Process: Relief From Removal

Chapter 20: Removal Process: Relief From Removal
Relief From Removal
Cancellation of Removal
Asylum
Withholding or Deferral of Removal
Private Bills
Restoration or Adjustment of Status and Waivers
Stays of Removal
Deferred Action
Exercise of Discretion
Temporary Protected Status vs.
V5. Deferred Enforced Departure
Nicaraguan Adjustment and Central American Relief Act (NACARA) and Haitial
Immigration Fairness Act (HRIFA)
Voluntary Departure
20.12

20.1
20.2
20.3
20.4
20.5
20.6
20.7
20.8
20.9
20.10
20.11

References:
INA: 101, 208,212,236,
208, 212, 236, 237, 240A, 241, 242, 244,245, 248, 249
Regulations: 8 CFR 10
RegUlations:
03.43, 208, 1240.20, 1240.21, 1240.33, 1240.34, 241.6, 245, 249, 274A

20.1

Rei
Relief
ief from Removal.

Aliens in removal proceedings and those with final orders of removal may be eligible for certain fan
fon
It is important for you to be familiar with these forms of relief because aliens under your docket con
can
eligible. You may be required to cease all removal actions on eligible detained and non-detai
Additionally, certain forms of relief may require the administrative closure of removal proceedi
release of aliens in custody. The Illegal Immigration Reform and Immigrant Responsibility Act of 19
eliminated some forms of relief and created others. You may encounter an alien under docket COl
removal proceedings were initiated prior to the enactment of IIRIRA. Therefore, you must know tl
relief that were available prior to IIRIRA and know what actions each Service officer should take
each particular form of relief.
•

First, consider the alien's immigration status and criminal history before pursuing relief from re
a criminal-history check if you cannot find one conducted during the past 90 days.
The Office of the Principal Legal Adviser reviews the contents of each "A" file before presentir
his
to the Executive Office for Immigration Review. If the file does not contain a current criminal hiE
90 days), the attorney will not proceed with the case and inform you of the incomplete recol
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then run the required criminal-history check so the Office of the Principal Legal Advisor car
record and proceed with the request for relief.
20.2

Cancellation of Removal.

(a) General. Cancellation of removal is a discretionary form of relief that may be granted to an alier
course of a removal hearing. A detailed description of cancellation of removal may be found at I
and 8 CFR 1240.20. Cancellation of removal applies to aliens placed in removal proceedings a
1997. Normally, cancellation of removal can be granted only by an immigration judge or by th
Immigration Appeals. However, a special class of aliens, defined by section 203 of the I
Adjustment and Central American Relief Act (NACARA), Pub. L. 105-100 is eligible to have can
removal (or suspension of deportation) favorably adjudicated by an asylum officer. Before IIRIF
effective, suspension of deportation was the form of relief very similar to cancellation of r
nonpermanent residents. The eligibility criteria for suspension of deportation can be found at 8 CF
This regulation refers to section 244(a) of the Act, as in effect prior to April 1, 1997.
(b) Eligibility Criteria. An eligible alien may apply for cancellation of removal on Form EOIR-42A,
for Cancellation of Removal for Certain Permanent Residents, or Form EOJB-42B, App
Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents. Eligibilit~
permanent residents may be found in section 240A(a) of the Act. Eligibility criteria 10r non·
residents may be found in section 240A(b) of the Act.
(c) Closing Actions. Once a decision to grant cancellation of removal has been rendered, and th
becomes final, the case must be closed in DACS. Departure Cleared Status code "B" in DACS
used to close the case.
(1) Cancellation of Removal Denied. If cancellation is denied, and voluntary departure ha:
granted, the deportation officer should proceed with normal removal actions, including DACS ur
(2) Cancellation Granted to Permanent Resident. If cancellation of removal is granted 1<
Permanent Resident Alien, the alien retains status and the case must be closed in DACS to
relief granted. Departure Cleared Status code "B" in DACS should be used to close the case.
(3) Cancellation Granted to Nonpermanent Resident. If cancellation of removal is grc
nonpermanent resident, the alien becomes eligible for adjustment of status and should be
accordingly. The Deportation Branch may assist the Examinations Branch in processing these
case must be closed in DACS to reflect the relief granted. Departure Cleared Status code "E
should be used to close the case.
20.3 Asylum.
Asylum, pursuant to section 208 of the Act, is among the most common forms of relief sought by
are in removal proceedings. Regulations governing jurisdiction, filing, employment authori2
adjudication are found in 8 CFR Part 208. Except as otherwise provided in section 208(a)(2)
asylum claims must be filed within one year of entry into the United States. Asylum claims are on
adjudicated by an Asylum officer. However, once an alien is placed into removal proceeding~
asylum claim may also be filed with the immigration judge.
\1 an alien in custody indicates they would like to apply for asylum, provide them with EQIJll 1-5_89,
for Asylum and Withholding of Removal, and supporting forms. You are required to advise all a
availability of free legal services. [See detention standards in Appendix 26-1 of this manual.]

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Once an alien is granted asylum by an immigration judge during the course of a removal h
proceedings are terminated. Once asylum is granted, employment authorization may be granted pL
CFR 274a.12(a)(5). The case must be closed to reflect the relief granted. Departure Cleared Stab
in DACS should be used to close the case.
Motions to Reopen or Reconsider. The Service is not prohibited from filing a motion to reopen or rE
accordance with 8 CFR 3.2 (Motions before BIA) and 3.23 (Motions before the Immigration
conditions change in the country from which asylum has been granted, there was fraud in the apf
other conditions exist, the BIA or an immigration judge may terminate the prior grant of asylum (
208.24).
20.4

Withholding or Deferral of Removal.

(a)
General. Other forms of relief, similar to asylum, are withholding of removal and deferral II
Normally, an immigration judge or the Board of Immigration Appeals makes the decision on witl
deferral of removal. An alien will be considered for these forms of relief if the alien has filed For
asylum in removal proceedings.
(b)
Withholding of Removal Based on Protected Characteristic in the Refugee Definition. Sectio
of the Act restricts the removal of an alien to a country where the alien's life or freedom would be
because of the alien's race, religion, nationality, membership in a particular social group, or politil
Aliens convicted of particularly serious crimes both inside and outside of the United States, aliens
pose a security risk to the United States, and aliens who have participated in the persecution of
ineligible for withholding of removal.
(c)
Withholding of Removal under the Convention AgaiQ$LTorture. The United States is obligat
by the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Tr
Punishment (Convention Against Torture). Section 2242 of the Foreign Affairs Reform and RestrL
of 1998, Pub L. 105-277, provides for how the U.S. will comply with the Convention Against Ton
Article 3 of the Convention Against Torture, the United States has agreed not to return a person
state where he or she would be tortured. The regulations regarding claims under the Conventi
Torture are found at 8 CFR 208.16, 208.17 and 208.18. Aliens under docket control may qualify·
withholding under these regulations. An alien granted withholding of removal may be granted e
authorization.
tt

(d)

Limitation$ of Withholding of Removal. The following are limitations to this form of relief:
(1) Removal to Third Country. Withholding of removal is country specific. There is no pre
removing an alien to a third country where the alien would be safe from persecution or torture.

(2) Does ~ot Qualify an Alien for Adjustment of Status. There is no provision for an alien whl
granted withholding of removal to adjust status to that of a Lawful Permanent Resident ba
grant.
(3) Motions to Reopen or Reconsider. The Service is not prohibited from filing a motion to
reconsider in accordance with 8 CFR 3.2 (Motions before BIA) and 3.23 (Motions before the I
Judge). If conditions change in the country to which withholding of removal has been granted
fraud in the application, or other conditions exist, the BIA or an immigration judge ma)
withholding previously ~ranted by an immigration judge (see 8 CFR 208.24).
(e)
Deferral of Removal under the Convention AgainstTorture can be found in 8 CFR 208.17. AI
is ineligible for withholding of removal because of criminal activity, security reasons or persecutiol
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may be granted deferral of
There is no prohibition on
Deferral of removal does
detention of the alien.

Page 4 of 13

removal to the country where it is more likely than not the alien would I
removing an alien to a third country where the alien would be safe fr
not negate or limit the application of law, regulation, or policy rela

Adjustment of status is not available to an alien granted deferral of removal. Deferral of Remo'
terminated in accordance with S CFR 20S.17(d), 8 CFR 208.17(f) and 8 CFR 20S.18(c). ThE
request that deferral be terminated under 8 CFR 208.17(e).
20.5

Private Bills.

This subject is discussed in detail in Chapter 23 of the Special Agent1s Field Manual.
20.6

Restoration or Adjustment of Status and Waivers.

(a) General. If an alien is granted adjustment of status or relief by an immigration judge, the I
Branch must close the case in DACS. Departure cleared status "B" should be used to close th
Depending on local office policy, deportation officers may assist in further processing of the alien'
registration card if applicable.
(b)
Adjustment of Status. Some aliens in or subject to removal proceedings may seek
deportation through adjustment of status to permanent residency. Such adjustment may be gra
immigration judge during the course of removal proceedings. Additionally, actual commencement
proceedings may be deferred by the arresting or processing officer where it appears the alien may
to some form of relief. Section 245 of the Act is the principal authority for adjustment of status to
resident. Occasionally, adjustment may be granted pursuant to section 249 of the Act, Creation of
Lawful Admission for Permanent Residence, or one of several other special adjustment provisi
Congress from time to time.
Not all aliens, even those with an approved visa petition, are eligible for adjustment. If an al
approved visa petition, but no visa number is available, he or she may not apply for adjustment. S
(a) of the Act specifies those aliens who have immediate relative status, as well as those with
status. Categories of those who are not eligible are described in detail within section 245 of the A
the other special provisions also has specific conditions and restrictions.
(c)
Discretionary Waivers Which May Agply in Removal Proceedings. An alien in removal proce«
apply for certain waivers which overcome the grounds for removal. Section 237 of the Act contain
and conditions of waivers which apply to certain classes of deportable aliens. Section 212 of the ft
the terms and conditions of waivers which apply to certain classes of aliens who are inadmissa
inadmissible at time of entry or adjustment of status.
(d)
Reinstatement to Status and Chang~e of Status. In some instances, an alien who has fallen 0
may be eligible for reinstatement to his or her original status or may be eligible for a change
nonimmigrant status. Questions regarding such matters should be referred to the local Examinati«
for consideration.
(e) Temporary Protected Status (TPS).. Section 244 of the Act provides for "Temporary Protec
for nationals of countries designated by the Attorney General, based on natural disasters, civil II
Section 20.9 of this chapter contains more information on TPS. Also, you may want to view the
http:H\I\{ww.immigrati()n~g()v/grc:1pttic..§.lf$.~rvices/tps_i.n~r~htrn.
on IPS found at http:H\I\{ww.immigrati()n~g()v/grc:1pttic..§.lf$.~rvices/tps_i.n~r~htrn.
20.7

Stay of Deportation or Removal.
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(a)
General. A stay of deportation or removal reflects an administrative decision by the Sf
reviewing body that removal against an alien should not proceed. It may be granted after the com
removal proceeding when the only remaining step in a case is the physical removal of the alier
deportation or removal is not considered an immigration benefit or waiver because it only bestow~
relief from removal upon the alien.
(b)
Stay.s Granted by the Service. If a final order has been entered based on deportability,
Director has wide discretion to grant a stay of deportation or removal. If the final order has be
against an inadmissible arriving alien, the District Director may stay immediate execution of th
explained in 20.7(b)(2) below.
(1) Deportable Aliens Ordered Removed. When there are compelling humanitarian factors, or v
is deemed to be in the interest of the government, a District Director may grant a stay of del
removal for such period of time and under such conditions as he or she deems necessary
deportation or removal under this paragraph may also be granted by a District Director upor
own initiative without application being made by the alien. The detention rules found at 8 CF
are applicable to a deportable alien granted a stay of deportation or removal.
(2) Inadmissible Arriving Aliens Ordered Removed. Section 241(c)(2) of the Act allows t~
General to stay the removal of an alien arriving at a port of entry. However, a stay of remova
section requires a determination either that immediate removal is not practicable or proper, or
needed to testify in the prosecution of another person in a criminal trial. Aliens granted a stc
their removal is impracticable or improper must be detained. Aliens who are granted a stay to
criminal prosecution, however, may be released if certain conditions are met. The alien must ~
of at least $500, must agree to appear when required to testify and for removal, and must a~
other conditions prescribed by the Attorney General.
(c)
Stays for Appeals or Judicial Review. Timely filed requests for post hearing reviews may st
depending on the case. However, the District Director may, in his or her discretion, remove an aliE
filed an untimely appeal, unless the court, an immigration judge, or the BIA has affirmatively stayed
(1) AQgeals to the Board of Immigration Al2Qeals (BIA). Under 8 CFR 3.6, the timely filing of an
decision by the Immigration Court will operate as an automatic stay. This applies to ap~
decisions by the Immigration Court except an appeal of a denial of a motion reopen or reconsid
of a request for a stay of deportation or removal. The Service shall take all reasonable step~
with a stay granted by an immigration judge or the BIA. However, such a stay shall cease to he
granted (or communicated) after the alien has been placed aboard an aircraft or other con\
removal and the normal boarding has been completed. See 8 CFR 241.6(c).
(2) Reguests for Judicial Review. The filing of a petition seeking review in federal court does r
removal of an alien unless the reviewing court affirmatively orders a stay. See 8 CFR 241.3 e
242(b)(3)(8) of the Act.
(3) Motions to Reopen or Reconsider. The filing of a motion to reopen or motion to reconsider
Immigration Court or BIA does not operate as an automatic stay of deportation or removal,
removal order was issued in absentia. See 8 CFR 1003.2(1) and 8 CFR 1003.23(b)(1 )(v).
(d)
Injunctive Relief from Removal. In conjunction with other proceedings, a U.S. District Cou
other judge will sometimes issue an order that prohibits a Service action. On occasion the removal
or class of aliens will be stayed by a temporary restraining order or an injunction. A temporary
order is an emergency remedy of short duration. There are many kinds of injunctions and the pel
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covered by an injunction may vary. Close communication with the United States Attorney and t~
General Counsel through your District Counsel's office is essential to insure compliance with the (
court.
(e)
Adjudication and Decision. Title 8 CFR 241.6 governs administrative stays of removal. An ali
removed may apply for a stay of deportation or removal on EQrml-246, Application for Stay of Del
Removal. The application for administrative stay of removal should be filed with the District Dire
jurisdiction over where the alien resides. There are a multitude of reasons for filing for a sta~
reasons include the need for urgent medical treatment, disposition of property, and unre
proceedings. The adjudication of a stay of deportation or removal is often delegated to a deporta
Care should be exercised to verify any claimed facts, such as serious medical problems, etc. The
the District Director is final and may not be appealed administratively. Neither the filing of the
request nor the failure to receive notice of disposition of the request shall delay removal or relie\
from strict compliance with any outstanding notice to surrender for deportation or removal.
(f)
Emgloyment Authorization. There is no statutory or regulatory authority to grant e
authorization to an alien based on a grant of a stay of deportation or removal.

20.8 Deferred Action.
(a)
General. A District Director may, in his or her discretion, recommend deferral of (removal) ac
of administrative choice to give some cases lower priority and in no wayan entitlement, in appropl
The deferred action category recognizes that the Service has limited enforcement resources and
attempt should be made administratively to utilize these resources in a manner which will achieve t
impact under the immigration laws. In making deferred action determinations, the factors listed in
(b), among others, should be considered.
Deferred action does not confer any immigration status upon an alien, nor is it in any way a reflE
alienls immigration status. It does not affect periods of unlawful presence as defined in section ~
the Act, and does not alter the status of any alien who is present in the United States without bein!
and admitted. Under no circumstances does deferred action operate to cure any defect in status
section of the Act for any purpose. Since deferred action is not an immigration status, no alien has
deferred action. It is used solely in the discretion of the Service and confers no protection or bene
alien. Deferred action does not preclude the Service from commencing removal proceedings c
against an alien. Any request by an alien (or another party on behalf of such alien) for deferred ac
be considered in the same manner as other correspondence. The alien should be advised that he
not apply for deferred action, but that the Service will review the facts presented and consider defe
as well as any other appropriate course of action.
(b)
Factors to be Considered. The following factors, among others, should be evaluated a:
deferred action determination:

(1) The Likelihood That the Service Will Ultimately_8_emove the Alien Based on Factors Includin
•

likelihood that the alien will depart without formal proceedings (e.g., minor child who will ;
deportable parents);

•

age or physical condition affecting ability to travel;

•

the likelihood that another country will accept the alien;

•

the likelihood that the alien will be able to qualify for some form of relief which would
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indefinitely delay removal.
(2) Sympathetic Factors: The presence of sympathetic factors which, because of a desire on
administrative or judicial authorities to reach a favorable decision, could result in a distortion
with unfavorable implications for future cases.
(3) Priority Given to a Class of Deportable Aliens: Whether or not the individual is a member 0
deportable aliens whose removal has been given a high enforcement priority (e.g., dangerou:
alien smugglers, drug traffickers, terrorists, war criminals, habitual immigration violators).

(4) Service Cooperation with Other Agencies: Whether the alien's continued presence in
desired by local, state, or federal law enforcement authorities for purposes of ongoing crim
investigation or prosecution.
(c)
Procedures. Normally a decision to recommend deferred action is made by the District DirE
limited circumstances, the decision may be made by the Eastern Service Center Director.
(1) District Director. If the District Director recommends that removal action in an alien's case b
the Director shall advise the Regional Director of such recommendation using _cQrrnG:31:
Action Case Summary. The District Director shall sign the recommendation and shall explain tt
his or her recommendation. The Regional Director shall consider the recommendation and
whether further action on the alien's case should be deferred. The decision whether or not to (
shall be communicated in writing by the Regional Director to the District Director. Upon
notification of deferral by the Regional Director, the District Director shall notify the applicant, I
the action taken and advise the alien that he or she may apply for employment auth(
accordance with 8 CFR 274a.12(c)(14). A decision not to defer action in such a case does not
separately communicated to the alien.
(2) Center Director (Eastern). In limited circumstances, Eastern Service Center Director may (
on removal of an alien. Upon approval of an Form 1-360 petition by a battered or abused SpOt
in his or her own behalf, the director shall separately consider the particular facts of eac~
determine if deferred action is appropriate. Although the approval of such a petition will weigh
deferred action, each decision must be considered individually, based on all the facts presE
factors discussed above. Upon deferral of action, the Center Director shall advise the alien, I
the action taken and advise him or her of eligibility to request employment authorization. A dec
defer action in such a case does not need to be separately communicated to the alien. Upon
removal action, the Center Director shall include a copy of theG-312 in the alien's A-file and'
file to the local Service office having jurisdiction over the alien's residence for docket control.
(d)
Employment Authorization. Although deferred action is not an immigration status, an alit
granted work authorization based on deferred action in his or her case, pursuant to 8 CFR 274a.12
(e)
Periodic R~view. Interim or biennial reviews should be conducted by both District ani
Directors to determine whether deferred action cases should be continued or the alien remOVE
deferred action category. District reviews must determine if there is any change in the circumstal
case and report any pertinent facts to the Regional Director. Results of the review and a recomm
continue or terminate deferred action shall be reported to the Regional Director via memora
Regional Director shall endorse the memorandum with his or her decision and return it to the Distl
for inclusion in the alien1s file.
District Directors must also review deferred action cases within their jurisdiction which were origin,
by the Eastern Service Center Director. Changed circumstances in such cases must be reported to
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Director for consideration of terminating the deferred action.
Regions should compare statistics among their districts to ensure consistent application of
sensitive program.
(f) Termination of Deferred Action. During the course of the periodic review, or at any other
District Director determines that circumstances of the case no longer warrant deferred action, he (
notify the Regional Director of the changed circumstances and recommend termination. The Regiol
shall determine if the deferred action should be terminated and notify the District Director of the de
District Director shall, in turn, notify the alien of the decision by letter. The alien is not entitled to a
this decision. The Eastern Service Center Director may also terminate deferred action in any cas.
originally granted. If the Eastern Service Center Director terminates deferred action, he or she mu~
decision to the Regional Director and to the appropriate District Director.
Upon termination of deferred action, any relating employment authorization must be revoked.
20.9 Exercising Discretion.
(a)
Distinguishing Prosecutorial from Adjudicative Discretion. In the course of their duties, Serv
are likely to encounter a variety of situations in which they may be called upon to make di
decisions. The legal requirements, and the available scope of discretion, will depend upon 1
discretionary decision being made. There are two general types of discretion: prosecutorial (or er
discretion, and adjudicative discretion.
Prosecutorial discretion is a decision by an agency charged with enforcing the law to enforce, or r
the law against someone. To put it another way, a prosecutorial decision is a choice whether to e
coercive power of the state in order to deprive an individual of a liberty or property interest, undel
provides the agency with authority to take such an action. The term IIprosecutorialll can be deceptiv
the scope of decisions covered by this doctrine include decisions, such as whether to arrest a
violator, other than the specifically IIprosecutorial" decision whether to file legal charges agains1
Adjudicative discretion, by contrast, involves the affirmative decision whether to grant a be
adjudicative standards and procedures provided by statute, regulation or policy that provide the ag
measure of discretion in determining whether to provide the benefit.
The distinction between the discretion exercised in an adjudicative decision regarding an affirmativ
benefit and a prosecutorial decision is a fundamental one; yet, it is sometimes blurred and
determine in the immigration context. Some decisions that may, on their face, look like a benefit gl
as an INS stay of removal or grant of deferred action -- really are just mechanisms for formalizing jj
of prosecutorial discretion. Others, such as voluntary departure, include elements of both lib
enforcement. Many proceedings combine both adjudicative and prosecutorial discretion, such as
proceeding in which an asylum application, adjustment of status, or a request for cancellation of re
issue. Officers who are in doubt about what standards may apply to a decision because of uncert
what type of discretion is involved should consult their supervisor and/or Service counsel.

t1

Service enforcement decisions involving prosecutorial discretion may involve either a liberty or
interest. Decisions involving a liberty interest that are likely to be relevant to a deportation offi<
include:
•

whom to arrest;

•

whom to refer for criminal prosecution;

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13
Page 99 of

••

whether or not to put an alien in removal proceedings, as opposed to or offering
offering Sl
Sl
consequence of his or her immigration violation such as voluntary departure or
or voluntar
voluntar
simply not pursuing the matter further;

••

been limited
limited
whether to place an alien in detention (but note that detention discretion has been
such as section 236(c) of the Act) and

••

whether to execute an order of removal.

INS
fine, civi
civi
INS prosecutorial decisions involving property interests include whether to seek a carrier fine,
fraud
fraud or employer sanctions money penalty, or forfeiture against INA violators.
Adjudicative
types of benefit
benefit applic.
applic;
Adjudicative discretion, on the other hand, is exercised in certain specific types
as:
as:
••
••
••
••
••
••
••
••

adjustment of status;
change of nonimmigrant status;
extension of nonimmigrant stay;
asylum;
cancellation of removal;
voluntary departure
certain employment authorization requests; and
various waivers of inadmissibility.

Such discretionary action is specifically provided in statute or regulation for these cases.
cases. Oth,
Oth,
Such
adjudicative actions, such as visa petitions, may not have any discretionary component.
adjudicative
(b) Exercising Prosecutorial Discretion. The "discretion" in prosecutorial discretion means
(b)
means that
that pi
pi
decisions are not subject to review or reversal by the courts, except in extremely narrow circums
decisions
circums'
this reason, it is a powerful tool that must be used responsibly. Because the Service
this
Service has
has ((
resources, decisions must regularly be made concerning which cases are the most appropriate uu
resources,
resources. INS officers are not only authorized by law but also expected to exercise discretion
resources.
discretion in
in
manner at all stages of the enforcement process -- from planning investigations to
enforcing
to enforcing fin.
fin.
subject to their
their chains of command and to the particular responsibilities and authorities
subject
authorities applica
applica
specific position. Decisions
Decisions whether or not to initiate removal cases or take other
specific
other enforcement
enforcement acti
acti
made consistently and the officer must be able to articulate their reasoning behind their
made
their act
act
exercise of prosecutorial discretion must consider the individual facts of the case. Arbitrary
exercise
Arbitrary ap
ap
enforcement tools must be avoided.
enforcement
For a legal opinion on the exercise and limitations of prosecutorial discretion within the
For
the Servic
Servic
Special Agent's
Agent's Field Manual Appendix 14-5. A memorandum from the Commissioner, dated
Special
dated NO\
No\
also discusses prosecutorial discretion (see Special Agent's Field Manual Appendix 14-6).
also
(c) Exercising Adjudicative Discretion. Each type of adjudicative benefit has specific eligibility
(c)
eligibility re
re
and includes certain restrictions. Individuals denied some benefits (such as asylum)
and
asylum) as
as aa
discretionary decision by the Service might have further opportunities for review of
discretionary
of the decision,
decision,
discretionary decisions (such as denial of employment authorization) may not be subject
discretionary
SUbject to
to ap
ap
adjudicative
decision
involving
an
exercise
of
discretion,
the
criteria
that
should
be
applied
may
adjudicative
applied may II
in
Service
regulations.
These
regulations
and
decisions
should
always
precedent
decisions
or
precedent
always bl
bl
for
guidance.
Whenever
an
adverse
adjudicative
decision
involving
an
exercise
of
discretion
is
for guidance.
;s
grounds for such denial must be given in the notice of denial. Failure to do so may result
grounds
result in
in jud
jud
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premised on an abuse of discretion. [See Jarecha v. INS, 417 F. 2nd 220 (5th Cir. 1979).] (Revised
20.10 Temporary Protected Status vs. Deferred Enforced Departure.
Section 244 of the INA contains information concerning Temporary Protected Status (TPS). T~
General of the United States, after consultation with appropriate agencies of the Government, ma~
nationals of any foreign state (or a part of such foreign state) as deserving of TPS. In addition to na
Attorney General may also include aliens who have no nationality but last resided in the designc
state. Aliens who have been granted TPS may not be removed from the United States during the
protected period and qualify for work authorization. The initial period of designation is not less tha
and not more than 18 months. At least 60 days prior to the expiration of the designated period, tl
General must review the conditions of the designated state to determine if TPS is still warranted.
of TPS designations normally are in 6 to 18 month increments at the Attorney General's
Applications for TPS are made on Form 1-821.
(a)
Conditions that m_9Y warrant TPS designation for a particular~tate. The Attorney General
TPS if there is an on-going armed conflict within the state that may cause harm to aliens that are
that state. Earthquakes, floods, droughts, epidemics or other environmental disasters that wou
temporary, but substantial, disruptions of living conditions may result in TPS designations. A fc
being temporarily unable to handle the return of nationals of that state may also result in a c
Granting a TPS designation to a particular state must not be contrary to the interests of the United:
(b)
TPS Impact on Removals. Aliens who have registered for TPS may not be removed from
States. Denial of TPS benefits results in the continuation of the removal process. Aliens who
granted TPS benefits receive an automatic stay of removal and cannot be removed until the expir
designated removal period. A grant of TPS does not affect the detention status of an alien who i~
mandatory detention; however, it should be considered when determining the custody of an alien y.
releasable. Aliens who are in removal proceedings normally have their case administratively c
decision screen in DACS should be updated but the case remains open under docket control.
(c)
Deferred Enforced Departure OdED). Unlike TPS, OED is not statutory and emanates from
States President's constitutional powers to conduct foreign relations. TPS may be granted by U
General but OED must come from the President in the form of an Executive Order. Presidential ord
are published in the Federal Register. Aliens who have been granted DED are normally gr.
authorization per 8 CFR 274A.12(A)(11). Aliens who have been granted OED may not be remOVE
United States until the designated period of DED has expired. If an alien falls under the protection (
comment screen in DACS should be updated.
20.11
Nicaraguan Adjustment and Central American Relief Act (NACARA) and Haitial
Immigration Fairness Act (HRIFA).

(a)
Nicaraguan Adjustment and Central American Relief Act (NACARAJ. The NACARA amendi
through Public Law 105-100 was signed into law on November 19, 1997. It provides various i
benefits and relief from removal to certain Central Americans, Cubans and nationals of former
countries. Specifically, the law provides that eligible Nicaraguans or Cubans can be considered for
of status to that of a permanent resident alien. Additionally, certain Guatemalans, Salvadorans an
of former Soviet bloc countries were eligible to apply for suspension of deportation or special rule (
of removal under the criteria that existed for suspension of deportation prior to the enactment of II R
(b)
Nicaraguans and Cubans eligible for adjustment to lawful permanent residence (LPR). Nica
Cubans who could establish they had been physically present in the United States for a continL
beginning not later than December 1, 1995, and ending not earlier than the date the application for
is granted, and who were not inadmissible to the United States under any provision of Section 2"
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INA except paragraphs (4), (5), (6)(A), (7)(A) and (9)(8), could apply for adjustment of status tc
LPR. See 8 CFR 245.13(a). A spouse, minor child, or unmarried son or daughter of an eligib
beneficiary may also apply for benefits as a dependent provided the qualifying relationship existe
principal beneficiary was granted adjustment of status. Under 8 CFR 245.13(c), certain
inadmissibility may be available to aliens who are otherwise inadmissible under section of 212 0
applicable, in accordance with 8 CFR 212.7. Pursuant to 8 CFR 245.13(c)(2), a regulatory wai,
available to aliens who are inadmissible under sections 212(a)(9)(A) and 212(a)(9)(C) of the Act.
(c)
Benefits for Guatemalans, Salvadorans. In order to be eligible for suspension of deportatior
rule cancellation of removal, Guatemalans and Salvadorans must demonstrate that they were
members who had not been apprehended at the time of entry after December 19, 1990, or w
application for asylum on or before April 1, 1990, either by filing an application with the Service
application with the Immigration Court and serving a copy of that application on the Service. In a
applicant shall not have been convicted of an aggravated felony. Such a qualifying alien may appl\J
rule cancellation of removal by the process discussed below.

II

(d)
Former Soviet Bloc Nationals. Aliens who have not been convicted of a aggravated felon:
entered the United States on or before December 31, 1990, applied for asylum on or before Del
1991, and, at the time of filing the asylum application, were nationals of the Soviet Union, Russia, c
of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungar
Albania, East Germany, Yugoslavia or any former state of Yugoslavia, may apply for special rule (
of removal by the process discussed section 20.11 (e).
(e) Application Process for Special Rule Cancellation of Removal. Special rule cancellation of
adjudicated under the same standards that existed for suspension of deportation prior to enactmen
In order to be eligible, an alien may not have been convicted of an aggravated felony. A principal a
special rule cancellation of removal (an alien described in paragraphs (a)(1) or (a)(2) of 8 CFR 2L
be presumed to have established that deportation or removal from the United States would result
hardship to the applicant or to a qualifying relative. See 8 CFR 240.64(d). The Service car
presumption of extreme hardship by proving that it is more likely than not that neither the appl
qualifying relative would suffer extreme hardship if the applicant were deported or removed from
States. See 8 CFR 240.64(d)(2) and (3). Where an application is filed with the Service, if the pre~
hardship is rebutted, the application can be dismissed and the case can be referred to the Immigr
where the applicant can have another review of the application. If the Immigration Court detel
extreme hardship will not result from deportation or removal from the United States, the applica
denied. The applicant has the burden of also proving that he or she has been continuously physici
in the United States for a period of not less than 7 years immediately preceding the date the appl
filed, and that s/he has been a person of good moral character during that period.
(f)
Derivative Applicants for Special Rule Cancellation of Removal. An alien who is the spous
unmarried son or daughter of an individual described in 8 CFR 240.61 (a)(1), (2), or (3), at the timE
is made to suspend the deportation or cancel the removal of that individual may also apply for sw
deportation or special rule cancellation of removal. Such derivative applicants do not get the pre~
extreme hardship, and accordingly have the burden of proving that their deportation or removal WOI
extreme hardship to themselves or to a qualifying relative. The applicant has the burden of also r
he or she has been continuously physically present in the untied States for a period of not less t~
immediately preceding the date the application was filed, and that s/he has been a person of !
character during that period.
(g)
Detention and Removal actions regarding NACARA agplicants. Although the deadline fc
applications expired on March 31, 2000, 8 CFR 3.43 allowed certain aliens to file a motion to reI
section 203(c) of Public Law 105-100. The deadline for filing the motions to reopen expired on Jun
Regardless of the expired deadlines, you may encounter aliens who still have pending appli
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benefits under NACARA. If you encounter an alien who claims to have a NACARA application p
should check all applicable Service databases to determine whether the application is still ~
addition, criminal record checks must be conducted to determine if the alien is subject to mandator:
If the alien has no criminal record and the NACARA application is still pending, s/he should not b
The following are three scenarios involving aliens whose applications have been denied and the c
should be taken in each case:
(1) RemQy§lQroceedings have never been initiated. In this case, the alien's application has b
and the alien should be referred to Investigations for the processing of a Form 1..862, Notice to JJ
(2) Removal proceedings were initiated at one time but were administratively closed to allow t
opportunity to apply for NACARA benefits. The Service should file a motion to recalendc
Immigration Court to allow the hearing process to continue. Custody determinations should b
each case individually using existing custody determination guidelines and the guidance fc
December 18, 1997 memorandum signed by the Executive Associate Commissioner, Offil
Operations. See "Interim Guidance - Nicaraguan Adjustment and Central American Relief Act".
(3) The alien has a pre-existing Order of Removal that was held in abeyance due to thE
application. Custody determinations should be made on a case-by-case basis utilizing existi
determination guidelines and the guidance found in the December 18, 1997 memorandum si~
Executive Associate Commissioner, Office of Field Operations. The Service must complete a
(c) and serve it on the Immigration Court. The court will make the determination if the NACP
was properly denied. If the court determines the benefit was properly denied, the removal a
proceed. If the determination is made that the denial was not proper, the court will adjl
application.
Aliens who had been ordered deported were eligible to apply for adjustment under the NACARA. an application automatically held the removal of the alien in abeyance. If an alien was a mandator
case, the filing of the application did not affect the alien's custody.
Additional information about NACARA § 203 rules may be found in 8 CFR 240.60 and 8 CI
questions arise involving NACARA applicants, consult the District Counsel's office or the E)<
branch.
(h)
Haitian Refugee Immigration Fairness Act (HRIFA). The HRIFA became law on October
under Public Law L. 105-277. Division A, Title IX of the law dealt specifically with HRIFA. Sectior
HRIFA provided for the adjustment of status to that of lawful permanent resident for certain Haitiar
wishing to apply for adjustment of status under HRIFA must have submitted their applications on F
Application to Register Permanent Residence or Adjust Status using 1-485 Supplement C, HRIFA ~
to Form 1-485 Instructions, prior to March 31, 2000. Although the deadline has passed, officel
encounter Haitians who have applications pending for this relief.
(i)
Detention and Removal actions regarding applicants for benefits under HRI FA. The removal
who were clearly eligible for adjustment under HRIFA was held in abeyance. Officers encountering
claim to have a HRIFA application pending should check all applicable Service databases to
whether the application is still pending. In addition, criminal record checks must be conducted to (
the alien is subject to mandatory detention. If the alien has no criminal record and the HRIFA a~
still pending, s/he should not be detained. The following are three scenarios involving alii
applications have been denied and the actions that should be taken in each case:
(1) Removal proceedings have never been initiated. In this case, the alien's application has b
and the alien should be referred to Investigations for the processing of a Form_J:.aEi2, Notice to JJ

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(2) Removal proceedings were initiated at one time but were administratively closed to allow t
opportunity to C!RPJ.y for HRIFA benefits. The Service should file a motion to recalendc
Immigration Court to allow the hearing process to continue. Custody determinations should b
each case individually using existing custody determination guidelines and the guidance fc
December 22, 1998 memorandum signed by the Executive Associate Commissioner, Offil
Operations. See "Interim Guidance - Haitian Refugee Immigration Fairness Act of 1998 (HRIF~
(3) The alien has a Rre-existing Order of Removal that was held in abeyance due to
.m;mlication. Custody determinations should be made on a case-by-case basis utilizing existi
determination guidelines and the guidance found in the December 22, 1998, memorandum si~
Executive Associate Commissioner, Office of Field Operations. The Service completes a Form
order to certify the denial of HRIFA benefits to the Immigration Court. The court then determin
HRIFA adjustment was properly denied.
The filing of an application automatically held the removal of the alien in abeyance. If an a
mandatory detention case, the filing of the application did not affect the alien's custody. Additional
about HRIFA rules may be found in Section 902 of the HRIFA and 8 CFR 245.15. If questions ari~
HRIFA applicants, consult the District Counsel's office or the Examinations branch.

20.12

Voluntary Departure.

Voluntary departure may be granted by the INS or an immigration judge under the conditions:
section 2408 of the Immigration and Nationality Act. See Chapter 13 of this Manual for an ex~
voluntary departure.

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ATTACHMENT C

2010FOIA4519.000039

OfJict
Offict of/1I,"sligo/ions
ofInvestigations
U.s. Dellu1ment
Department of Homeland
Romeland Serurlty
Sea:urity
425 I Slreel,
Street. NW
WashingtOn. DC 20536
WllSbinglOn.

u. S. Immigration

and Customs
.Enforcement
JUN 2 1 2004
MEMORANDUM FOR:

FROM:

ALL SPECIAL AGENTS IN CHARGE
RES1DENT AGENTS IN CHARGE
ALL RESIDENT
ALL RESlDENT
RESIDENT AGENTS

L
-I--

Marcy M. Forman IlL..
IIL... /'J"IIJ
I!J
MarcyM.
Actin~ Director,
Director offi~
Offi~e o~Inves[igation5
o}Investigatiom;
7

SUBJECT:

of Removal. or
Issuance of Notices to Appear. Administrative Orders ofRemoyal.
Reinstatement of a Final Removal Order on Aliens with United States
Military Service

This memorandum amends the current ICE policy requiring Headquarters authorization to issue a
current or prior member of the United States military. It
Notice to Appear (NTA) in the case of a cunent
also provides guidance regarding the exercise of prosecutorial discretion in the issuance and service
of a Notice to Appear (NTA), a Final Administrative Removal Order (Administrative Order), or a
Reinstatement of a Final Removal Order (Reinstatement) upon an alien with service in the United
States military. This includes service in the United States Army,
Anny, Air Force, Navy, Marine Corps,
Coast Guard, or National Guard, as well as service in the Philippine Scouts during World War n.
II.
The former bnmigration
Immigration and Naturalization Service (INS) previously recognized that military
service should be considered in detennining whether or not to issue and serve an NTA upon an alien
who was discharged from one of the military branches. INS Interim Enforcement Procedures, dated
1997. titled "Standard
UStandard Operating Procedures for Enforcement Officers: Arrest, Detention.
Detention,
June 5, 1997,
Processing and Removal"
RemovaP' state in Section V, Subsection D (8): "Current
"Cunent or fonner members of
Armed forces. A Notice to Appear shall not be issued against any current or former
fonner member of the
armed forces without prior approval from the regional director. Also, such an alien must also be
advised, prior to the issuance of the Notice to Appear.
which may be
Appear, of any discretionary relief
reliefwhich
available." The abolition of the INS and its regional offices makes it appropriate to revisit the
procedures for issuance of NTAs, Administrative Orders, and Reinstatements in cases involving
military service by aliens.
The authority to approve issuance ofan NTA,
~ Administrative Order, or Reinstatement in these cases
will now rest with the Special Agent in Charge (SAC) in each field office. This decision will, at a
minimum, take into consideration the circumstances in each case as identified below, and requires a
memorandum from the SAC to the A-file with a brief overview ofthe facts considered and
specifically authorizes issuance of the NTA,
NTA. Administrative Order, or Reinstatement.

2010FOIA4519.000040

Memorandum to All Special Agents in Charge. Resident. Agents in Charge, and Resident Agents 2
Subject: Issuance ofNotices to Appear. Administrative Orders of Removal, or Reinstatement ofa
Final Removal Order on Aliens with United States Military Service

Importantly, a thorough review to detennine eligibility for United States Citizenship under sections
328 and 329 of the hnmigration and Nationality Act (INA) must be completed in these cases because
those sections contain special naturalization provisions for members of the military and, under
certain circumstances, an order of removal does not preclude their naturalization. Accordingly, ICE
should not initiate removal proceedings against aliens who are eligible for naturalization under
~ections 328 or 329 ofthe INA, notwithstanding an order of removal. 1
In cases involving military service where the alien is not eligible for naturalization under sections
328 or 329 of the INA, the issuing official should consider the alien's overall criminal history, as
well as any evidence of rehabilitation, family and financial ties to the United States. employment
history, health. community service, specifics ofmiIitary service, and other relevant factors. When
looking at military servic~ an ICE official should consider factors related to that service, such as
duty status (active or reserve), assignment to a war zone, number ofyears of service, and decorations
awarded. Additionally, when analyzing the criminal history in the case, crimes involving violence,
aggravated felonies, drug trafficking, or crimes against children are to be viewed as a threat to public
safety and nonnally the positive factors of any military service will not deter the issuance of an
NTA. An honorable discharge by no means serves to bar an alien from being placed in removal
proceedings.

Although possible adverSe publicity may be a factor in considering whether to issue an NTA,
Administrative Order, or Reinstatement, it should not be the determining factor. The decision not to
issue an NTA. Administrative Order, or Reinstatement is an exercise ofprosecutorial discretion; as
such it does not convey any right upon the alien or his or her representative. There is no application
A,
to submit, nor any explanation owed to the alien as to why a decision was made to issue an NT
NTA,
Administrative Order, or Refnstatement regardless of military service. There is no right to review
the decision to initiate proceedings before any administrative appeal unit, an immigration judge, nor
the federal courts. The special agent interviewing an alien should, as much as possible, put the
responsibility on the alien to sub~tantiate the discharge, decorations won, length of service, etc.
Officers charged with processing aliens for NTAs, Administrative Orders, or Reinstatements should
be periodically reminded to inquire about military service during such processing in all cases where
such service may be a possibility. However, when an alien's prior military service does not come to
the attention of ICE until after issuance of the NTA Administrative Order. or Reinstatement,
appropriate action should be taken to comply with this guidance.
t

In cases in which an alien is still on active duty when ICE seeks to serve an NTA, Administrative
Order, or Reinstatement, SACs should consider the implications of placing an active duty alien in
I All aliens eligible for naturalization under section 329 of the INA can be naturalized notwithstanding an order of
removal. In contrast. not all aliens eligible for naturalization under &ec:tion 328 ofthc INA can be naturalized
notwithstanding an order o(removaJ. Under section 328 oflhe INA, only those aliens who arc serving in the anned

forces and who, prior to filing the applicatiOl1, appear before a representative from U.S. Citizenship and Immigration
Services. may be naturalized notwithstanding an order of removal.

2010FOIA4519.000041

Memorandum to All Special Agents in Charge. Resident Agents in Charge. and Resident Agents

3

Subject: Issuance of Notices to Appear, Administrative Orders of Removal, or Reinstatement ofa
Final Removal Order on Aliens with United States Military Service
proceedings. While ICE policy does not preclude the placement of an alien on active duty into
proceedings, factors regarding successful service of the NTA, Administrative Order, or
Reinstatement should be considered prior to authorization of the NTA Cor service. Such factors may
include: (1) whether coordination with the enforcement ann or administration of that branch of the
service in which the alien is serving is possible; (2) whether the alien is likely to abscond ifhelshe is
discharged prior to being placed into proceedings; and (3) whether service of the NTA,
Administrative Order, or Reinstatement can be coordinated so that the alien can be served
_immediately upon discharge. Whenever possible, the alien should be served upon discharge.
This policy provides some, but not all, of the factors to consider when deciding whether or not to
exercise prosecutorial discretion in the issuance of an NTA, Administrative Order, or Reinstatement
against an alien who has served in the United States military. In all cases, the factors considered and
the decision made in each specific case must be entered into a memorandum of investigation, G166C, in ENFORCE and a copy placed in the alien's A-file. This G-166C will be referenced on the
Form 1-213 that is completed for the case. As in all cases, the SAC should seek assistance from the
Office of the Chief Counsel as necessary.
Any questions related to this memorandum can be directed to JeffBroadman, Program ManagerlIRP
at 202-353-3611.

2010FOIA4519.000042

ATTACHMENT D

2010FOIA4519.000043

O.Dice of the PrincipalLegaJ Advisor

u.s. Department of Homeland Secuni}'

425 I Street N,W•. Room 6100
Washington, DC 20536

U.Sa Immigration
and Customs
Enforcement

ocr" 6 2005
ME~fORANDillv'l FOR:

Chief Counsels

FROM:

William J. Howard
Principal Legal Advisor

SUBJECT:

Exercising ProsecutorialDiscretion To Dismiss Adjustment
Cases

4t9~

PURPOSE:
To set forth the criteria and procedures by \vhich an Iml11igration and Customs Enforcetnent
(ICE) Office of the Chief Counsel (DCC) may join in or file a 1110tion to disnliss proceedings
~'ithout prejudice when the ICE acc detennines adjustment applications currently pending
before EOIR would be appropriate for approval by Citizenship and Ilnnligration Services
(CIS).
The basis for this policy is to reallocate limited ICE resources to priority cases by dismissing
appropriate cases \vhere it appears in the discretion of the ICE ace that relief in the forn) of
adjustment of status appears clearly approvable.
CRITERIA:
Motions to Dismiss Proceedings Without Prejudice pursuant to this mC1TIorandum should be
predicated on the following threshold criteria.

•

EorR must have jurisdiction to adjudicate the application. {or adjustlnent.

•

The respondent lnust dC1TIOnstrate prima facie eligibility for adjustment of
status based on a properly filed application for adjustment under the
Immigration and Nationality Act (including but not liInited to sections 209,
245,249, or section 1 of the Act ofNovenlber 2, 1966). Where the application
for adjustment is predicat.ed on a visa petition, the case nlay be dismissed
where the visa petition is approved and immediately available or the record
establishes a long-term relative relationship where approval of an imnlediately
availahle petition is likely.

2010FOIA4519.000044

Memorandunl for Chief Counsels
Subject: Exercising Prosecutorial Discretion To Dismiss Adjustnlent Cases

•

2

Adjustment applications must support a discretionary detemlination by the ICE

ace that the applications appear clearly approvable.

•

There is no asylum application pending adjudication before the Immigration
Judge.

•

ICE ace should not generally join in a Motion to Dismiss Without Prejudice
or so tnove sua sponte in fe'mOya] proceedings invoJving threats to national
security, hunlan rights violators~ criminal convi.ctions or conduct necessitating
a 212(h) waiver (e.g. Operation Comnlunity Shield, Operation ICE Storm,
Operation Cornerstone or Operation Predator), immigration fraud necessitating
a 212(i) waiver (e.g. Operation Jakarta), or detained aliens. With the approval
of the Chief Counsel, dislnissal may be perolitted in the above cases based
upon unique or special circunlstances including but not limited to the extent
and/or seriousness of criminal conduct, recency and/or significance of
immigration fraud, or national security interests. Whi Ie this is not an
exhaustive list, the policy outlined herein should ordinarily be followed absent
a competing enforcement interest.

PROCEDlJRE:
1\. Motion to Dismiss Without Prejudice nlust he predicated on the respondent demonstrating
prima facieeligi.bility through an application for adjustn1ent before EOIR.Vt/hen applicable,
the respon.dent or his/her representative nlust contact the ICE ace representing DHS before
the Imn1igration Court to request ICE ace consent to dislniss proceedings. ICE ace may
require that such request be made in writing, be supported by a true and complete copy of the
adjustment application pending before EOIR, and be supported by any other evidentiary
material including, but not limited to, a copy of the current DOS Visa Bulletin showing
current priority date and respondent' sFBI Identification Record accessible at
http://\\l\vw.:fbi.govlhqicjisd/fprequest.httn. (FAQ's accessible at
httpJlwv.rw.tbj .gov/hg/cjisd/fags. htnl1.)

The ICE DCC may join in a Motion to Dismiss without Prejudice or move sua sponte for
dismissal without prejudice if the ICE ace determines that the respondent's application for
adjustment is likely to be granted.
\Vhere appropriate, ICE acc may request revisions to a proposed l1lotion benlade asa
precondition for giving its consent ICE ace should strive to reply in a tinlely nlUl1ner to
requests for dismissal of proceedings for adjustrnent before CIS.
ICE acc should specifically request that a decision of the Immigration Judge dismissing
proceedings will expressly state that disnnssal of the matter shall be without prejudice to the
Department ofI--Iomeland Security (DHS) so that the record will be clear that the recommencenlent of renl0val proceedings will not be barred by the doctrines of res judicata or
collateral estoppel. If the Inlmigrarion Judge dismisses removal proceedings without
prejudice, the acc should route the administrative file(s) through DRO CIS for

to

2010FOIA4519.000045

Memorandum for Chief Counsels

3

Subject: Exercising Prosecutorial Discretion To Dismiss Adjustment Cases
adjudication of adjustment applications and update the General Counsel Electronic
Management System (GEMS) including entering "DFA" (Dismissed for Adjustment) within
the events note portion of the events tab in GEMS cases manager until "Dismissed for
Adjustment" is incorporated as a dropdown order option within the events tab. While the
applicant bears the burden of satisfying CIS filing and eligibility requirements, should the
immigration court grant a joint request to forward the original adjustment application to the
ICE ace at the time of dismissal of proceedings, the original adjustment application should
be placed in the administrative file prior to routing the administrative file to CIS.

Use
This memorandum is intended solely for the guidance of DHS personnel in the performance
of their duties. It is not intended to, does not, and may not be relied upon to create any right
or benefit, substantive or procedural, enforceable at law or equity by any individual or other
party in removal proceedings, in litigation with the United States, or in any other fann o.r
manner. Discretionary decisions of the ICE acc regarding the exercise of prosecutorial
discretion under this memorandum are final and not subject to legal review or recourse.

2010FOIA4519.000046

ATTACHMENT E

2010FOIA4519.000047

Office o/the Principal LegaL Advisor

U.S. Department of Homeland Security
4251 Street, N.W. Room 6lGO
Washington, DC 20536

JAN ... B 2004

•

U.S. Immigration and
Customs Enforcement

MEMORANDUM FOR ALL CIDEF COUN~E~/7
FROM:

Victor X.

cerda~ 'X.f:::::.J</

Acting Principal Legal Advisor
SUBJECT:

Changes to the National Security Entry Exit Registration System lNSEERS)

On December 2,2003, the Department of Homeland Security published an interim rule
amending the regulations contained at 8 C.F.R. section 264.1(f), relating to special registration of
aliens. See 68 FR 67578. This rule significantly alters, but does not discontinue, the registration
program.
The December 2nd rule suspends the automatic 30-day and annual re~registration
requirements for aliens who had previously registered Wlder the NSEERS program. However,
under this rule, aliens who previously registered, either at a Port of Entry (POE) at the time of
admission or as part of the domestic "call-in" registration program, continue to have an
obligation to register their departure. Additionally, NSEERS registered aliens may now be
subject to continuing registration interviews at the discretion of the Assistant Secretary for U.s.
Immigration and Customs Enforcement, or his designee. Aliens subject to the continuing
registration requirements will be notified of their registration obligations in writing.

The December 2nd rule expressly states that it does not excuse past registration violations.
If an alien was or is required to appear for a required NSEERS registration interview and
willfully fails to do so, the alien remains amenable to removal proceedings. Thus, removal
proceedings should continue or may be initiated for the following groups of aliens:

(1)

Aliens who were originally registered at a POE or as part of the domestic registration
program on or before November 21, 2002, and who willfully failed to appear for their
annual re-registration interview on or before December 1, 2003;

(2)

Aliens registered upon admission who entered the United States on or before October
22,2003, and who willfully failed to appear for a 30-day continuing registration
interview on or before December 1, 2003;

(3)

Aliens who were subject to domestic registration, as noticed in the federal register,
and who willfully failed to appear and be registered;

www.dhs.gov

2010FOIA4519.000048

Memorandwn for All Chief Counsel
Subject: Changes to the National Security Entry Exit Registration System (NSEERS)
(4)

2

Aliens who, following the December 2, 2003 role, are given written notice of the
requirement that they appear for a continuing registration interview and who willfully
fail to appear.

As you are aware, the willful failure to comply with NSEERS registration provisions
constitutes a violation ofnon-inunigrant status. Such cases should be carefully evaluated to
determine whether the alien's failure to comply with registration requirements was knowing and
voluntary. If the Chief Counsel detennines that termination of a case is appropriate because
there is insufficient evidence that the alien t s failure to register was willful, or if a case is
terminated by an Immigration Judge based upon a failure of U.S. Immigration and Customs
Enforcement to meet its burden of proof as to the willfulness of the violation, please coordinate
with your local Office of Investigations to ensure that the a1ien~s
a1ien~s registration record is updated.
Any questions regarding this policy or individual cases may be directed to Rachel Silber,
Associate Legal Advisor, at (202) 353·3447.

ov
www.dhs.g
www,dhs.gov

2010FOIA4519.000049

ATTACHMENT F

2010FOIA4519.000050

Appellate CouflScl
Counsel
Appel/ale

Office of the Principal Legal Advisor, USICE
U.S. Department of Homeland Security

5113 Leesburg Pike, Suite 200
Falls Church, VA 22041

u.s. Immigration
and Customs
Enforcement

(rev. 5/10/05)
U.S. ATTORNEY
RECOMMENDATIONS
ATIORNEY OFFICE REMAND RECOMMENDAnONS
When U.S. Attorney Offices dctcrmine
dctermine that it is appropriate to move to rcmand
remand a federal court immigration
case back to the Board of Immigration Appeals,l it would be appreciated if the following process is followed
when seeking concurrence from U.S. Immigration and Customs Enforcement's Office of the Principal Legal
Advisor (ICE OPLA).
•

ICE OPLA requests that U.S. Attorney Office remand recommendations be directed to the local ICE
Chief Counsel Office that litigated the case before the Executive Office for Immigration Review. The
detennined by the location of the Immigration Court
pertinent ICE Chief Counsel Office can be determined
where the case was decided, as listed on the Immigration Court and BIA decisions in the certified
record.
o

•

Please see the attached chart for local Chief Counsel contact information.
infonnation. If, for whatever
reason, there is difficulty in contacting local Chief Counsel, ICE's Office of Appellate
Counsel should be contacted for assistancc: (703) 756-6257.

Chief Counsel Office, it would be very helpful if the
Further, when recommending remand to an ICE ChiefCounsel
following procedures are used:

o

Please send the remand recommendation in e-mail form. (This will help speed the review
process as there often is a need for consultation between ICE field and HQ components as
well as with other DHS components.)

o

For sake of
uniformity and ease of identification, please use the following format for the
ofunifonnity
subject line of the e-mail: "US Attorney Remand Request: Alien Name / A-number."

o

Please try to send the remand recommendations at least seven (7) days in advance of the
briefmg
briefing deadline, especially if all extensions have already been exhausted with the court.
(This will permit adequate time for the ICE Chief Counsel office to retrieve the A-file,
review the remand request, consult with ICE HQ and other DHS components (if
necessary),
(ifnecessary),
provide a response to the remand request, AND still allow time for a brief to be drafted, if
necessary).
necessary) .

I1 The Civil Division's Office ofImmigration
of Immigration Litigation will provide remand advice to a U.s.
U.S. Attorney
Office upon request.

2010FOIA4519.000051

Page 2
o In order to assist the ICE Chief Counsel office in making an infonned decision, it would be
very helpful if the remand request included the following key infonnation:
•
•

•
•

o

A summary of the facts and issues of the case, and an explanation of why remand is
sought. (In this regard. a short pro/con litigation risk analysis would be helpful.)
An outline of the proposed arguments to be made in a brief assuming the case is to
be litigated before the federal court.
Verification that the remand recommendation has received all necessary internal
approvals, such as from the pertinent Civil Chief.
Copies of the IJ and BIA decisions (as well as any other documents from the
certified record necessary to assess the remand request). These documents can either
be attached to the e-mail via PDF or faxed.

Finally, it would be helpful if a draft of the remand motion could be provided to the ICE
Chief Counsel Office for review I comment before filing with the court.

2010FOIA4519.000052

Page 3

Arlin on
Atlanta
Baltimore
Boston
(+ Hartford)
Buffalo (+ Buffalo
Federal Detention
Facili
Chicago (+Kansas
Ci )
Dallas
Denver (+ Helena
Detroit
(+ Cleveland +
Cincinnati)
El Paso
EI
Honolulu

Newark
(+Elizabeth
Detention Center)
New Orleans
(+ Oakdale +
Mem his
New York
(+Varick,
+Downstate,
+Ulster,
+U1ster,
+Wackenhut
Orlando
(+Bradenton)

Philadcl hia

Karen Lundgren

James.Grable@dhs.gov

(716) 551 4741 ext.
3200/3281/3285

Karen.Lundgren@dhs.gov

3857317
(312) 385
7317

Paul Hunker
Corina Almeida
Kathleen Alcorn

214 905- 5780
(303) 371 4711
568 6033
(313) 5686033

Guadalupe
Gonzalez
David Roy

Guadalupe.Gonzalez@dhs.gov

(915) 225 1803

David.Roy@dhs.gov

(808) 532-2149

Gary Goldman

Gary.Goldman@dhs.goy
Gary.Goldman@dhs.gov

(281) 774
7744746
4746

John Salter

John.Salter@dhs.gov
John.Salter@dhs.goY

(213) 894 8627

Riah RamloganSeurad e
Charles Parker

Riah.Ramlogan@dhs.gov

400 6160
(305) 4006160

Charles.Parker@dhs.goY
Charles.Parker@dhs.gov

(973) 6452318
645 2318

Joseph Aguilar

Joseph.Aguilar@dhs.gov

(504) 599-7823

Brian Meyers

Brian.Meyers@dhs.gov

(212) 264 - 5916

Daniel Vara

Daniel.Vara@dhs.gov
Danie1.Vara@dhs.goY

(407) 282 - 0145

Kent Frederick

2010FOIA4519.000053

Page 4
(+York County
Prison)
Phoenix
(+Florence,
+Eloy, Tucson)
St. Paul (+Omaha)

Patricia Vroom

Patricia.Vroom@dhs.gov

(602) 379 3164

Richard Soli

Richard.Soli@dhs.gov

(952) 853 2970

San Antonio
(+Harlingen,
+Port Isabel)
San Diego (+ EI
Centro + East
Mesa Detention
Facility)
San Francisco

Gregory Ball

Gregory.Ball@dhs.gov

(210) 967 7050

Martin Soblick

Martin.Soblick@dhs.gov

(619) 557-5578

Ronald Le Fevre

Duty-Attorney.Sfr@dhs.gov

(415) 705 4486

San Juan

Vivian ReyesLopez
Dorothy Stefan

Vivian.ReyesLopez@dhs.gov

(787) 706 2352

Dorothy.Stefan@dhs.gov

(206) 553 2366

Seattle
(+Anchorage +
Portland)

2010FOIA4519.000054

ATTACHMENT G

2010FOIA4519.000055

Department of Homeland Security Performance Plan and Appraisal
General Information
This section allows the employee or Rating Official to enter the rating cycle and complete the employee, Rating Official, and
Reviewing Official information. Please use the tab key to navigate from field to field.

Employee Information
Rating Period Start - End

Last Name

First Name

Employee Identification Number

Pay Plan

Organization

Position Title

(consult component for specific use)

Middle Initial

Occupational Series

Grade

Duty Location

Rating Official Information

Last Name

First Name

Organization

Middle Initial

Position Title

Reviewing Official Information

Last Name

First Name

Organization

Middle Initial

Position Title

PRIVACY ACT STATEMENT: Authority: 49 U.S.C. § 114(n). Principal Purpose(s): This information will be used to
document your performance appraisal and to certify that the rating official has discussed your performance appraisal with
you. Routine Use(s): This information may be shared in response to a request for discovery or for appearance of a witness,
information that is relevant to the subject matter involved in a pending judicial or administrative proceeding, or for routine
uses identified in the Office of Personnel Management’s system of records, OPM/GOVT-2 Employee Performance File System
Records. Disclosure: Voluntary.

DHS Form 308 (09/09) Prof 11-13

Page 1 of 11
2010FOIA4519.000056

Department of Homeland Security Performance Plan and Appraisal
Core Competencies
This section allows you to view the pre-established core competencies, behaviors, and associated performance standards. You
cannot update or modify any of the information in this section. Please use the tab key to navigate through the competencies.
Please refer to the Annual Appraisal and Rating of Record section of this document to view the rating given to each competency.
Each core competency is weighted equally and, together, makeup 40% of the overall performance rating. The performance goals
makeup the other 60% of the overall performance rating and appear under the Performance Goals section of this document.
•
•

5 – Achieved Excellence. The employee performed as described by the “Achieved Excellence” standards.
4 – Exceeded Expectations. The employee performed at a level between “Achieved Excellence” standards and the “Achieved
Expectations” standards.
3 – Achieved Expectations. The employee performed at as described by the “Achieved Expectations” standards.
1 – Unacceptable. The employee performed below the “Achieved Expectations” standards; corrective action is required.

•
•

Core Competency 1: Communication
Actively listens and attends to nonverbal cues when responding to the questions, ideas, and concerns of others.
Communicates in an influential or persuasive manner, as appropriate. Writes in a clear and concise manner. Orally
communicates in a clear and concise manner. Tailors communication (e.g., language, tone, level of specificity) to the
audiences’ level of understanding and to the communication medium.

Performance Standards
•

•

Achieved Expectations Applies effective listening skills and appropriately responds when communicating
with others. Solicits, shows respect for, and carefully considers others ideas, comments, and questions within scope
of work. Effectively explains or defends viewpoint when necessary. Independently prepares and delivers
communications that are clear, concise, and timely. Writes communications that generally require few substantive or
editorial revisions.
Achieved Excellence Additions at the Achieved Excellence level: Accurately reads and assesses more
ambiguous situations and responds effectively. Effectively explains or defends viewpoint to audiences who hold
opposing views. Independently and effectively tailors communication style (e.g., language, tone, and level of
specificity) and customizes communications to the audience.

Core Competency 2: Customer Service
Communicates with customers to understand their needs. Works with customers to set expectations and keeps them
informed of issues or problems. Provides timely, flexible, and responsive services to customers.

Performance Standards
•

•

Achieved Expectations Reaches out to customers to gather information about their requirements and
needs; develops and delivers products or provides services to meet those needs in a timely manner. Discusses
expectations with customers, keeps customers informed of problems that could impede progress, and suggests
workable solutions. Responds to questions or requests from customers within reasonable time frames. Displays
flexibility in responding to changing customer needs.
Achieved Excellence Additions at the Achieved Excellence level: Independently develops creative and useful
ideas that add significant value to products and services. Anticipates customer needs and resolves or avoids potential
problems, maximizing customer satisfaction.

Core Competency 3: Representing the Agency
Represents the agency and its interests in interactions with external parties. Ensures that interactions with and information
provided to outside parties reflect positively on the agency. Enhances trust and credibility in the agency and its mission
through effective professional interactions with others outside the organization. Deals professionally and tactfully with
external parties in difficult, tense, or emergency situations.

Performance Standards
•

•

Achieved Expectations Presents a professional image of the agency when interacting with others, fostering
trust and credibility. In unpredictable situations, stays calm and handles somewhat difficult, tense, or emergency
situations with good judgment and professionalism. Takes effective steps to defuse or resolve confrontational
situations in a manner that reflects positively on the agency.
Achieved Excellence Additions at the Achieved Excellence level: Takes action to effectively manage difficult,
tense, or emergency situations. Engages with others in a manner that earns their respect and helps to advance the
Agency's goals and objectives.

DHS Form 308 (09/09) Prof 11-13

Page 2 of 11
2010FOIA4519.000057

Department of Homeland Security Performance Plan and Appraisal
Core Competency 4: Teamwork and Cooperation
Makes positive contributions to achieving team goals. Develops and maintains collaborative working relationships with
others. Builds effective partnerships that facilitate working across boundaries, groups, or organizations. Respects and values
individual differences and diversity by treating everyone fairly and professionally. Works constructively with others to reach
mutually acceptable agreements to resolve conflicts.

Performance Standards
•

•

Achieved Expectations Contributes to achieving goals by working collaboratively with others and building
effective partnerships across organizational boundaries. Independently offers assistance and provides support to
advance goals. Deals with everyone fairly, equitably, and professionally, respecting and valuing individual differences
and diversity. Effectively handles disagreements or conflicts, resolving them in a constructive manner. Consults with
senior team members or supervisors when appropriate and makes viable recommendations for resolving differences.
Achieved Excellence Additions at the Achieved Excellence level: Collaborates beyond what is expected
resulting in high-impact contributions. Contributes to a climate of trust and skillfully develops productive relationships
and networks that advance goals. Anticipates situations with potential for conflict and takes effective steps to
minimize escalation. Considers all sides of issues and develops effective compromises or resolutions.

Core Competency 5: Technical Proficiency
Demonstrates and applies relevant knowledge and skills to perform work in accordance with applicable guidelines. Uses
appropriate and available technology or tools to perform work activities. Acquires, develops, and maintains relevant and
appropriate job skills through training or other opportunities for learning and development. Stays up-to-date on
developments related to own work. Demonstrates an understanding of the organization’s mission, functions, and systems.
Collects relevant information that is needed to identify and address problems or issues. Analyzes and integrates information
to identify issues and draw sound conclusions. Identifies and evaluates alternative solutions to problems.
Makes sound, well-informed, and timely decisions or recommendations. Identifies and utilizes innovative or creative methods
and solutions to accomplish work, as appropriate. Maintains an awareness of available resources and the process for
acquiring resources. Identifies and advocates for resources required to accomplish work activities or projects. Makes
effective and efficient use of available resources. Safeguards available resources to prevent fraud, waste, and abuse.

Performance Standards
•

•

Achieved Expectations Successfully applies knowledge and skills (including use of technology and tools) to
independently perform a full range of assignments; seeks guidance as appropriate. Uses formal or informal feedback
on own performance to develop job skills that facilitate achieving results. Demonstrates an understanding of the
applicable organizations mission, functions, and values, the interrelationships between various units and
organizations, and relevant policies/procedures (to include, as appropriate, responsibilities toward the protection of
classified national security information); uses this knowledge to carry out a full range of work assignments.
Demonstrates working knowledge of the resources available to perform work; identifies and acquires needed
resources, and ensures that use of resources is efficient and consistent with the planned project or activity.
Effectively gathers complete and relevant information from appropriate sources to address issues or problems.
Effectively analyzes information to identify issues, weigh alternatives, and draw logical conclusions; anticipates and
resolves a full range of problems or issues. Makes well-reasoned, timely decisions and recommendations affecting
own work.
Achieved Excellence Additions at the Achieved Excellence level: Successfully applies depth and breadth of
knowledge to independently perform even highly complex or varied assignments at this level. Accomplishes tasks in
a highly efficient and effective manner and makes high impact contributions. Continually broadens and enhances
expertise, resulting in performing more complex work activities. Takes initiative to expand knowledge about
resources available and makes useful suggestions that increase efficiency. Identifies and uses effective methods to
gather information in a highly efficient manner. Regularly and correctly identifies key issues; anticipates and
identifies alternative solutions for problems that have a variety of viable solutions. Seeks opportunities to participate
in addressing more complex problems.

DHS Form 308 (09/09) Prof 11-13

Page 3 of 11
2010FOIA4519.000058

Department of Homeland Security Performance Plan and Appraisal
Performance Goals
This section allows entry for up to 5 Performance Goals for the employee. If more than 5 goals need to be added, please use the
Additional Goals/Comments section located on the last page of this document. Please use the tab key to navigate from field to field.
Please refer to the Annual Appraisal and Rating of Record section of this document to view the rating given to each goal.
Each performance goal must be assigned a share to equal 100% and, together, makeup 60% of the overall performance rating. For
example, if the employee has 3 goals, they might be weighted as follows: 25%, 25%, and 50%. The core competencies makeup the
other 40% of the overall performance rating and appear under the Core Competencies section of this document.
•
•
•
•

5 – Achieved Excellence. The employee performed as described by the “Achieved Excellence” standards.
4 – Exceeded Expectations. The employee performed at a level between “Achieved Excellence” standards and the “Achieved
Expectations” standards.
3 – Achieved Expectations. The employee performed at as described by the “Achieved Expectations” standards.
1 – Unacceptable. The employee performed below the “Achieved Expectations” standards; corrective action is required.

For each goal performance standard, describe the level of performance at the Achieved Expectations and Achieved Excellence level by
using such terms as quality, quantity, timeliness, and cost effectiveness.
Performance Goal 1 (Outcomes/Results): Develop a mechanism to help ensure that agents and officers are consistently
provided with updates regarding legal developments within the scope of their assignments.
Insert the higher level goal, objective, or mission of the organization and/or of the supervisor to which this goal aligns:
Weight:

%

Achieved Expectations:
Achieved Excellence:
Performance Goal 2 (Outcomes/Results): Increase efficiency of removal process, including through vertical prosecution and
standardization of the stipulated removal process. Establish a baseline of the average number of days to complete a removal case
and put measures in place to begin reducing the numbers.
Insert the higher level goal, objective, or mission of the organization and/or of the supervisor to which this goal aligns:
Weight:

%

Achieved Expectations:
Achieved Excellence:
Performance Goal 3 (Outcomes/Results): Realign attorney resources so that more attorneys are available to provide support
and provide assistance on ICE initiated criminal prosecutions and special operations.
Insert the higher level goal, objective, or mission of the organization and/or of the supervisor to which this goal aligns:
Weight:

%

Achieved Expectations:
Achieved Excellence:
Performance Goal 4 (Outcomes/Results): Realign resources so that more attorneys are available to provide legal support to
operational components in administering their programs.
Insert the higher level goal, objective, or mission of the organization and/or of the supervisor to which this goal aligns:
Weight:

%

Achieved Expectations:
Achieved Excellence:
Performance Goal 5 (Outcomes/Results): Enhance the integrity of the data collected in General Counsel Electronic Management
System (GEMS) so that it more comprehensively and accurately measures OPLA’s workload and performance.
Insert the higher level goal, objective, or mission of the organization and/or of the supervisor to which this goal aligns:
Weight:

%

DHS Form 308 (09/09) Prof 11-13

Page 4 of 11
2010FOIA4519.000059

Department of Homeland Security Performance Plan and Appraisal
Achieved Expectations:
Achieved Excellence:

DHS Form 308 (09/09) Prof 11-13

Page 5 of 11
2010FOIA4519.000060

Department of Homeland Security Performance Plan and Appraisal

Performance Plan Acknowledgements & Comments
This acknowledges the start of the performance plan. Please complete this section once the plan has been developed, reviewed and
approved by the Rating Official and discussed with and given to the employee.
I have discussed my performance plan with my Rating Official.
Employee Signature _____________________ Date ___________
Employee Comments:
I certify that these goals have been reviewed and approved by the Reviewing Official.
Rating Official Signature _____________________ Date ___________
Rating Official Comments:

DHS Form 308 (09/09) Prof 11-13

Page 6 of 11
2010FOIA4519.000061

Department of Homeland Security Performance Plan and Appraisal

Mid-Cycle Review Acknowledgements & Comments
At least one formal mid-cycle review is required during the appraisal period.
I certify that the formal mid-cycle progress review and discussion occurred.
Employee Signature _____________________ Date ___________
Employee Comments:

Rating Official Signature _____________________ Date ___________
Rating Official Comments:

DHS Form 308 (09/09) Prof 11-13

Page 7 of 11
2010FOIA4519.000062

Department of Homeland Security Performance Plan and Appraisal

Progress Review Acknowledgements & Comments
This section is provided for any additional progress reviews that may occur throughout the performance cycle.
I have provided my progress review.
Employee Signature _____________________ Date ___________
Employee Comments:

Rating Official Signature _____________________ Date ___________
Rating Official Comments:

DHS Form 308 (09/09) Prof 11-13

Page 8 of 11
2010FOIA4519.000063

Department of Homeland Security Performance Plan and Appraisal

Interim Evaluation Acknowledgements & Comments
An Interim Evaluation is defined as a narrative description of an employee’s performance as measured against the performance
expectations set forth in a Performance Plan or Statement of Performance Expectations. Under certain circumstances supervisors
will prepare “Interim Evaluations” of performance prior to the last 90 days of the rating cycle. See Appendix B in Chapter 43,
Instruction 255-03-001 for an explanation of when Interim Evaluations are to be prepared. Interim Evaluations will be considered by
employees’ permanent supervisors when preparing a Ratings of Record. If a Statement of Performance Expectations was completed,
please attach a copy to this document.
An Interim Evaluation discussion occurred.
Employee Signature _____________________ Date ___________
Employee Comments:

Rating Official Signature _____________________ Date ___________
Rating Official Comments:

DHS Form 308 (09/09) Prof 11-13

Page 9 of 11
2010FOIA4519.000064

Department of Homeland Security Performance Plan and Appraisal

Annual Appraisal and Rating of Record Acknowledgements & Comments
Please manually enter below from the Ratings Calculator the individual and overall rating for the core competencies, weights and
ratings for the individual and overall rating for goals and overall performance rating. Note: Rating Officials must provide a full
written justification to support an ‘Unacceptable’ summary rating of overall performance. Please consult your Component HR point of
contact for more information regarding these circumstances.

Core Competency Ratings

(40% of overall rating)

Competency 1:

Rating:

Competency 2:

Rating:

Competency 3:

Rating:

Competency 4:

Rating:

Competency 5:

Rating:

Overall Competency Rating:

Performance Goal Ratings

(60% of overall rating)

Performance Goal 1

Weight:

%

Rating:

Performance Goal 2

Weight:

%

Rating:

Performance Goal 3

Weight:

%

Rating:

Performance Goal 4

Weight:

%

Rating:

Performance Goal 5

Weight:

%

Rating:

Performance Goal 6

Weight:

%

Rating:

Performance Goal 7

Weight:

%

Rating:

Performance Goal 8

Weight:

%

Rating:

Performance Goal 9

Weight:

%

Rating:

Performance Goal 10

Weight:

%

Rating:

Overall Performance Goal Rating:

Overall Performance Rating
Overall Performance Rating:
The Annual Appraisal discussion occurred.
Reviewing Official Signature _____________________ Date ___________
Reviewing Official Comments:
Employee Signature _____________________ Date ___________
Employee Comments:

Rating Official Signature _____________________ Date ___________
Rating Official Comments:

DHS Form 308 (09/09) Prof 11-13

Page 10 of 11
2010FOIA4519.000065

Department of Homeland Security Performance Plan and Appraisal

Additional Goals/Comments
This section shall be used for any overflow throughout the document (i.e. performance goals, comments).
goals are entered here, please use the format below.

If additional performance

Performance Goal # (Outcomes/Results):
Insert the higher level goal, objective, or mission of the organization and/or of the supervisor to which this goal aligns:
Weight: %
Achieved Expectations:
Achieved Excellence:

DHS Form 308 (09/09) Prof 11-13

Page 11 of 11
2010FOIA4519.000066

U.S. DEPARTMENT OF HOMELAND SECURITY
Bureau Immigration and Customs Enforcement

Performance Appraisal Record

DISCLOSURE STATEMENT: This information is personal. It must be appropriately safeguarded from improper disclosure and it
should only be made available for review by appropriate management levels having a need to know.

Part A - Employee Information
Name of Employee

Social Security Number

Position Title

Assistant Chief Counsel

Pay Plan, Series, Grade

Rating Period (from/to)

GS-905-

Office Location

Part B - Development, Discussion, and Approval of Performance Work Plan
Rating Official's Signature

Reviewing Official's Signature

Employee's Signature

Date

Date

Date

Part C - Progress Review
Rating Official's Signature

Employee's Signature

Date

Date

Part D - Rating of Individual Performance Elements
Rating Level (check one)
Critical Performance Elements
1

Advocates for/Represents the Agency

2

Provides Legal Advice

3

Conducts Legal Research and Writing

Meets Expectations

Fails to Meet
Expectations

Part E - Overall Rating Level (check one)
Meets Expectations

Unacceptable
Part F - Rating of Record Review and Approval

Appraisal Type (check one)

Annual

Interim

Rating Official's Signature

Reviewing Official's Signature

Employee's Signature

Date

Date

Date

2010FOIA4519.000067

PERFORMANCE APPRAISAL RECORD INFORMATION
Part A - Employee Information
The rating cycle for attorneys is from July 1st through June 30th.

Part B - Development, Discussion, and Approval of Performance Work Plan
1.

The Rating Official develops the Performance Work Plan (PWP) at the beginning of each appraisal period by identifying the
performance elements and performance standards. Participation of the employee in developing the PWP is optional, but strongly
encouraged.

2.

The Reviewing Official reviews the PWP to ensure that the elements and standards are sufficient to fulfill management expectations
and organizational goals and objectives. The reviewing official also ensures that the PWPs within the organizational unit are
generally consistent.

3.

The employee acknowledges receipt and understanding of the PWP.

Part C - Progress Review
At least one formal progress review -- either oral or written -- must be conducted, normally near the mid-point of the rating cycle, to
assess the extent to which the elements and standards of the PWP remain appropriate, and to discuss the employee’s progress toward
meeting the performance goals. Progress reviews should be documented by the signatures of the Rating Official and the employee on
the Performance Appraisal Record (PAR).

Part D - Rating of Performance Elements
The Rating Official completes the appraisal record by assigning tentative rating levels for each performance element and recording
these determinations on the PWP and the PAR. Each element will be rated at one of the following two levels:
Meets Expectations
Fails to Meet
Expectations

Performance meets or exceeds the established standards criteria.
Performance is below established element standards and is deficient in terms of quality, quantity,
timeliness of work, and/or manner of performance. Performance at this level for a critical element
requires that administrative action be taken, and results in an overall rating of Unacceptable.

Part E - Overall Rating Level
The Rating Official assigns the overall rating Level based on the following:
Meets Expectations
Unacceptable

No critical elements are rated at the Fails to Meet Expectations level.
Performance on any critical performance element fails to meet established standards, i.e., is rated at the
Fails to Meet Expectations level. Administrative action must be taken based on a rating at the
Unacceptable level.

Part F - Rating of Record Review and Approval
1.

The Rating Official assigns tentative performance element rating levels and the overall rating level, and signs the PAR. Upon
approval by the Reviewing Official, the Rating Official provides the approved PAR to the employee and discusses the evaluation.

2.

The Reviewing Official approves or adjusts the Rating Official's tentative ratings, and signs the PAR.

3.

The employee signs the PAR indicating that the rating was issued and discussed. The signature does not constitute agreement with
the rating assigned or forfeit any rights to grieve the rating.

2

2010FOIA4519.000068

U.S. DEPARTMENT OF HOMELAND SECURITY
Bureau of Immigration and Customs Enforcement

Performance Work Plan

DISCLOSURE STATEMENT: This information is personal. It must be appropriately safeguarded from improper disclosure and it
should only be made available for review by appropriate management levels having a need to know.

Part A - Employee Information
Name of Employee
Position Title

Social Security Number
Assistant Chief Counsel

Pay Plan, Series, Grade

Rating Period (from/to)

GS-905-

Office Location

Part B - Performance Elements

Performance Element #1

Advocates for/Represents the Agency: Represents the Department of Homeland Security at
meetings, conferences, and other forums; reviews, prepares, and presents cases for trial and on
appeal.

Performance Standards for "Meets Expectations":
1.

Dealings with courts, clients, and others, oral and written, are conducted in a courteous, diplomatic, cooperative, and forthright manner;
communications take place in a timely manner; keeps informed about, and attends on time, relevant meetings, conferences, and briefings, and
contributes when appropriate; anticipates foreseeable problems, and alerts supervisor, when necessary, in a timely manner.

2.

When possible, negotiations result in agreements or settlements containing the important objectives of the government; negotiations are timely
concluded; relations with operating divisions, opposing counsel, litigating divisions, and other agencies are professional; preparation for
negotiations is thorough; to the extent possible, ensures that he or she has knowledge of the relevant facts and understands the goals and
objectives of the government; presents government’s position clearly; acts in a manner that warrants the respect of the operating divisions,
opposing counsel, litigating divisions, and other agencies; conducts negotiations without the need for continuing supervision; exercises competent
judgment in reserving issues for review by supervisor.

3.

[When incumbent appears in court:] Demonstrates proper courtroom decorum; is familiar with case facts and applicable law by the time of the
hearing; presents evidence in an organized, clear, and logical fashion; examines and cross-examines witnesses effectively; communicates clearly
and understandably; argues persuasively; adopts appropriate case strategies to advance calendar while achieving goals and protecting the record;
demonstrates familiarity with rules of evidence and procedure.

4.

[When incumbent appears in court:] Maintains control of assigned case docket; returns calls timely; contacts needed witnesses in advance of
hearing date when possible; reviews files for needed material and makes best efforts to ensure it is obtained in advance of hearing date; writes
notes to file that reflect procedural posture of the case, are legible, and convey necessary information to other Department personnel.

Rating Level (check one). Note: A narrative summary is required for performance assessed at the Fails to Meet Expectations level.
Meets Expectations

Fails to Meet Expectations

Comments:

3

2010FOIA4519.000069

Part B - Performance Elements (continued)

Performance Element #2

Provides Legal Advice: Provides litigation support, legal assistance, and legal advice to the U.S.
Attorneys’ Offices and the operational units of the Department of Homeland Security.

Performance Standards for "Meets Expectations":
1.

Provides accurate and timely responses to inquiries; identifies options; distinguishes between viable and non-viable options; presents arguments
for and against viable options; makes logical and supportable recommendations; deals tactfully, diplomatically, professionally, and courteously
when responding to inquiries.

2.

Demonstrates a solid knowledge of the relevant statutes, regulations, case law, agency legal positions, and policies.

3.

Completes assignments on time, allowing sufficient opportunity for supervisory review and adjustment; works independently within guidelines
established by supervisor.

Rating Level (check one). Note: A narrative summary is required for performance assessed at the Fails to Meet Expectations level.
Meets Expectations

Fails to Meet Expectations

Comments:

4

2010FOIA4519.000070

Part B - Performance Elements (continued)

Performance Element #3

Conducts Legal Research and Writing: Researches legal and policy issues; writes
memoranda, briefs, legal opinions, letters, reports, and other documents.

Performance Standards for "Meets Expectations":

1.

Demonstrates a solid working knowledge of immigration and nationality laws and other relevant areas of law; finds the applicable law; is aware
of the full range of resources and utilizes them appropriately; demonstrates knowledge of and proficiency in computer-assisted legal research;
arrives at supportable legal conclusions; considers viable legal options.

2.

Written work product addresses relevant substantive and procedural issues in a well-organized manner; states the operative facts and applicable
law completely and persuasively, with appropriate citation and in conformance with office and court rules; presentation is fair, clear, concise, and
reflective of thorough analysis; written work is free of significant errors in style, spelling, grammar, or punctuation.

3.

Sets realistic project and assignment goals and implements them accordingly; adjusts to changes in assignments and workload; notifies supervisor
in advance of any inability to meet major deadlines or to achieve major goals; submits written work by the established due date, with sufficient
time for review and editing.

4.

Memoranda, briefs, legal opinions, letters, reports, and other documents are written in clear, precise language appropriate to the intended reader,
free of significant errors of fact or omission, are technically correct, reflect thorough analysis, and are properly formatted; distinguishes relevant
and important information from that which is irrelevant or unimportant.

Rating Level (check one). Note: A narrative summary is required for performance assessed at the Fails to Meet Expectations level.
Meets Expectations

Fails to Meet Expectations

Comments:

5

2010FOIA4519.000071

(b)(6), (b)(7)(C)
(b)(6), (b)(7)(C)

(b)(6), (b)(7)(C)

2010FOIA4519.000072

Memorandum for SACS, FODS, and Chief Counsel
Page 2
Subject: Preliminary Guidance on "Background and Security Investigations in Proceedings Before
Immigration Judges and the Board of Immigration Appeals" Regulations
of insuring that law enforcement and security investigations are completed before immigration
judges and the BlA grant benefits to aliens. While more specific field guidance on the regulations is
being developed, this memorandum will provide some preliminary guidance on what policies and
procedures will be forthcoming.
Discussion
The preamble to the "Background and Security Investigations" regulations and the regulations
themselves makes clear that DHS has the sole authority "to determine what identity. law
enforcement, and security investigations and indices are required ... and when those investigations
are complete." ICE has decided that the FBI lingerprint checks and IBIS checks will be the required
checks for purposes of the new regulations. In addition, ICE has decided that the FBI fingerprint
checks will be considered current if they were conducted within fifteen (15) months of a grant of
benefits by an immigration judge, whereas the ruTS checks will be considered current if they were
conducted within one hundred and eighty {I 80) days 0 f a grant of benefits by an immigration judge.
The new regulations at 8 C.F.R. 1003.47(b), specifically state which applications for benefits are
covered the by the new procedures. They include: asylum, adjustment of status under section 209
and 245 of the Act, conditional pemlanent resident status or the removal of the conditional basis of
such status under section 216 or 216A of the Act, waivers of inadmissibility or deportability under
sections 209(c), 212, or 237 of the Act, cancellation of removal under section 240A of the Act,
suspension of deportation, and 212(c) relief, withholding of removal under section 241 (b)(3) of the
Act or withholding or deferral of removal under the Convention Against Torture, registry under
section 249 of the Act, and conditional grants relating to applications such as asylum pursuant to
section 207(a)(5) of the Act and cancellation of removal in light of section 240A(e) of the Act.
Pursuant to the November 10, 2004, memorandum titled "Interagency Border Inspection System
(I BIS) Pilot Project," all local Field 011ice Directors, Special Agents in Charge, and Chief Counsels
met and devised their own ruTS Standard Operating Procedures (SOPS) on how to run, resolve, and
record IBIS background checks for all aliens seeking benefits in Inlmigration Court. Since
December 1,2004, 10 cities have participated in the IBIS Pilot. We are now directing the Pilot cities
to continue with their IBIS procedures; however, the tracking requirements will cease and the final
tracking reports will be due on March 7, 2005. We are now directing the cities that have not
participated in the Pilot to prepare to implement the procedures contained within their IBIS SOPs on
April I, 2005, the date when the "Background and Security Investigations" regulations go into
effect. Additional guidance on IBIS checks will be forthcoming.
Conclusion
All ICE field operational groups should plan to conduct FBI fingerprint checks and IBIS checks for
all aliens seeking the benefits specified in 8 C.F.R. I003.47(b). by April 1,2005. Please refer any
questions about upcoming regulations and procedures to your operational groups designated
representative. Below is a list of each operational group's designated representatives:
Field Office Directors -

(b)(6), (b)(7)(C)

Supervisory Detention and Deportation Officer, DRO
(202) 616·(b)(6), (b)(7)(C)
2010FOIA4519.000073

(b)(6), (b)(7)c

(b)(6), (b)(7)c

2010FOIA4519.000074

4743

Rules and Regulations

Federal Register
Vol. 70, No. 19
Monday, January 31, 2005

This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.

DEPARTMENT OF JUSTICE
8 CFR Parts 1003 and 1208
[EOIR No. 140I; AG Order No. 2755–2005]
RIN 1125–AA44

Background and Security
Investigations in Proceedings Before
Immigration Judges and the Board of
Immigration Appeals
Executive Office for
Immigration Review, Justice.
ACTION: Interim rule with request for
comments.
AGENCY:

This rule amends Department
regulations governing removal and other
proceedings before immigration judges
and the Board of Immigration Appeals
when a respondent has applied for
particular forms of immigration relief
allowing the alien to remain in the
United States (including, but not limited
to, asylum, adjustment of status to that
of a lawful permanent resident,
cancellation of removal, and
withholding of removal), in order to
ensure that the necessary identity, law
enforcement, and security investigations
are promptly initiated and have been
completed by the Department of
Homeland Security prior to the granting
of such relief.
DATES: Effective date: This rule is
effective April 1, 2005.
Comment date: Written comments
must be submitted on or before April 1,
2005.
Request for Comments: Please submit
written comments to MaryBeth Keller,
General Counsel, Executive Office for
Immigration Review (EOIR), 5107
Leesburg Pike, Suite 2600, Falls Church,
Virginia 22041. To ensure proper
handling, please reference RIN No.
1125–AA44 on your correspondence.
You may view an electronic version of
this rule at http://www.regulations.gov.
You may also comment via the Internet
SUMMARY:

to EOIR at eoir.regs@usdoj.gov or by
using the http://www.regulations.gov
comment form for this regulation. When
submitting comments electronically,
you must include RIN No. 1125–AA44
in the subject box. Comments are
available for public inspection at the
above address by calling (703) 305–0470
to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT:
MaryBeth Keller, General Counsel,
Executive Office for Immigration
Review, 5107 Leesburg Pike, Suite 2600,
Falls Church, Virginia 22041, telephone
(703) 305–0470.
SUPPLEMENTARY INFORMATION: An
immigration judge or the Board of
Immigration Appeals (Board) may grant
relief from removal under a variety of
provisions of the Immigration and
Nationality Act (Act). Among the
common forms of relief are adjustment
of status to lawful permanent resident
(LPR) status, asylum, waivers of
inadmissibility, cancellation of removal,
withholding of removal, and deferral of
removal under the Convention Against
Torture.1 In considering an application
for relief the applicant bears the burden
of establishing his or her eligibility for
the relief sought and, for discretionary
forms of relief, that he or she merits a
favorable exercise of discretion. For
almost all forms of relief from removal,
it must be established that the applicant
has not been convicted of particular
classes of crimes, and that he or she is
not otherwise inadmissible or ineligible
under the relevant standards.
The Department of Homeland
Security (DHS) conducts a variety of
identification, law enforcement, and
security investigations and
examinations to determine whether an
alien in proceedings has been convicted
of any disqualifying crime, poses a
national security threat to the United
States, or is subject to other
investigations. Since September 11,
2001, DHS and its predecessor agencies
have expanded the scope of identity,
law enforcement, and security
investigations and examinations before
granting of immigration status to aliens.
1 Withholding of removal under 241(b)(3) of the
Act and CAT deferral are not forms of ‘‘relief from
removal’’ per se, but instead are restrictions on or
protection from removal of an alien to a country
where he or she would be threatened or tortured.
In this SUPPLEMENTARY INFORMATION, the Department
uses the term ‘‘relief from removal,’’ and
appropriate variations, to include withholding and
CAT deferral, for the ease of the reader.

Moreover, because circumstances are
subject to change over time, DHS may
be required to update the results of its
background investigations if the current
determinations have expired. As the
National Commission on Terrorist
Attacks upon the United States (‘‘9/11
Commission’’) has emphasized, ‘‘[t]he
challenge for national security in an age
of terrorism is to prevent the very few
people who may pose overwhelming
risks from entering or remaining in the
United States undetected.’’ The 9/11
Commission Report, ed. W.W. Norton &
Co. (2004), at 383. The Attorney General
agrees with the Secretary’s
determination that the expanded
background and security checks on
aliens who seek to come to or remain in
this country are essential to meet this
challenge, regardless of whether the
alien applies affirmatively with DHS or
seeks immigration relief during removal
proceedings within EOIR’s jurisdiction.
In general, these investigations and
examinations can be completed in a
timely fashion so as to permit the
adjudication of adjustment and other
applications before the immigration
judges without delay. Because DHS
initiates the immigration proceedings,
in most cases DHS has ample time to
undertake the necessary investigations if
it has obtained the alien’s biometric 2
and other biographical information 3
prior to or at the time of filing of the
Notice to Appear (NTA). In the instance
when an NTA has been issued without
biometrics and other biographical
information having been taken at all
(such as when DHS’s U.S. Citizenship
and Immigration Services (USCIS)
issues the NTA upon denial of a petition
or application for change of
nonimmigrant status at a service center
2 Biometrics currently include digital fingerprints,
photographs, signature, and in the future may
include other digital technology that can assist in
determining an individual’s identity and
conducting background investigations.
3 Other biographical information refers to data
which may include such items as an individual’s
name; address; place of birth; date of birth; marital
status; social security number (if any); alien
registration number (if any); prior employment
authorization (if any); date of last entry into the
United States; place of last entry; manner of last
entry; current immigration status and eligibility
category. Currently, such biographical information
is required by the DHS Form I–765, Application for
Employment Authorization, or other DHS or EOIR
forms. In the future, other information may be
required by DHS in order to complete identity, law
enforcement, or security investigations or
examinations.

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Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations

or when an applicant fails to appear for
a scheduled biometrics fingerprinting
appointment with USCIS), this rule
contemplates that DHS will be given the
opportunity to obtain respondent’s
biometrics and other biographical
information from the respondent before
a merits hearing. In addition,
particularly when substantial time may
have elapsed during the pendency of
immigration proceedings, the validity of
a fingerprint response received by
USCIS may have elapsed and, under
current arrangements with outside law
enforcement and investigative agencies,
fingerprints may need to be taken again
by DHS to complete updated
background checks.
When an alien in proceedings files an
application for relief, such as an
application for asylum or adjustment of
status, DHS is on notice that further
inquiry into criminal and national
security records may be required.
Because the immigration judges
schedule in advance the date of the
hearing on the merits of the alien’s
application, a time that is ascertainable
from the hearing notices served on the
government counsel, DHS is routinely
on notice of the date by which these
inquiries, investigations and
examinations must be completed in
time for a final decision by the
immigration judge on the pending
applications for relief. When an alien
files an application in immigration
proceedings for relief from removal, the
immigration judge ordinarily will be
able to consider the time that DHS
indicates it will likely require to
conduct the background and security
inquiries and investigations before
setting the date for the merits hearing.
The immigration judge also can take
into consideration that DHS’s ability to
obtain full results from the law
enforcement and intelligence agencies
that are not within its control may
require additional time beyond that
initially indicated by the government.
There are, as noted, occasions where
an investigation being conducted or
updated by DHS requires additional
time. Historically, DHS has had the
ability to file a motion for a continuance
under the rules applicable to
proceedings before immigration judges,
8 CFR 1003.29, but that general
provision leaves numerous questions
unanswered in the complicated area of
criminal history checks and national
security investigations. The current
regulations are also unclear as to the
scope of an immigration judge’s
authority to act to grant relief in
situations where a background
investigation is ongoing.

The national security requires that
immigration judges or the Board should
not grant applications for adjustment to
LPR status, asylum, or other forms of
immigration relief without being
advised by DHS of the results of the
investigations, including criminal and
intelligence indices checks. The
Department and DHS recognize the need
for coordination of processes so as to
permit these appropriate identity,
background, and security investigations
to be completed by DHS prior to the
granting of immigration relief that is
within the jurisdiction of the
immigration judges and the Board. This
rule provides a means to ensure that the
immigration judges and the Board will
not grant relief before DHS has
completed its investigations.
The Department and DHS also
recognize that the need to protect
national security and public safety must
be balanced against the desire for law
abiding aliens to have their requests for
immigration relief adjudicated in a
prompt and timely fashion. However,
there have been instances when aliens
in removal proceedings were granted
some form of immigration relief but
USCIS did not automatically and
immediately learn about their need for
an immigration document. Furthermore,
DHS determined that in some cases the
law enforcement checks were not
completed prior to the grant. Since
USCIS must run background checks on
any alien who will receive an
immigration document reflecting the
alien’s immigration status or
authorization to work, this process
creates a waiting period for aliens that
in most cases could have been avoided.
This process also is not acceptable to
the grantees, some of whom have been
named or represented in litigation
against the government complaining of
delays. Recent cases include Santillan v.
Ashcroft, No 04–2686 (N.D. Cal.)
(requesting relief for proposed
nationwide class); Padilla v. Ridge, No.
M–03–126 (S.D. Tex.) (requesting relief
for proposed class of aliens in three
districts of Texas). The Department and
DHS have determined that the best
method for avoiding these delays is to
run law enforcement checks prior to
immigration relief being granted.
Further, these checks should be
conducted in advance of any scheduled
merits hearing before the immigration
judge wherever possible.
This rule enables and requires
immigration judges to cooperate with
DHS in: (1) Instructing aliens on how to
comply with biometric processing
requirements for law enforcement
checks; (2) considering information
resulting from law enforcement checks;

and (3) instructing aliens who have been
granted some form of immigration relief
regarding the procedures by which to
obtain documents from DHS. This rule
also creates a more efficient process,
saving time for the immigration judge,
respondent, and others, by
implementing a process that enables the
Department to adjust its hearing
calendars when the required law
enforcement checks have not been
completed prior to a scheduled hearing.
This improvement to the system is
immediately necessary to reduce the
time that grantees must wait to receive
their documents after the completion of
immigration proceedings, and decrease
the chances that an alien who is a
danger to public safety or national
security will be granted relief from
removal.
Systems Utilized To Conduct Identity,
Background and Security Checks
There is no need for this rule to
specify the exact types of background
and security checks that DHS may
conduct with respect to aliens in
proceedings. DHS and other agencies
are actively involved in streamlining
and enhancing the systems of
information that contain information on
terrorist and other serious criminal
threats.
Generally, however, the majority of
required checks are returned in a matter
of days or weeks. Yet there are instances
where another agency may inform DHS
that a check reveals some sort of
positive ‘‘indicia’’ on an individual, and
it may take a longer period of time for
those agencies to complete their
investigations and convey this
information to DHS for a determination
of relevancy under the immigration
laws. Additional time may be required
if it is necessary to obtain additional
fingerprints. In other instances, the
‘‘indicia’’ may require that DHS obtain
or provide notice to the individual that
he or she must obtain and present DHS
with all records of court proceedings. A
longer period of time may also be
necessary to complete background
checks where individuals have common
names that may require individualized
reviews of the records of all similarly
named individuals or where there are
variations in the spelling of names due
to translation discrepancies. Finally,
there may be demands on DHS to
conduct a disproportionate number of
investigations in a short time based
upon current events, such as an
emergent mass migration, that may have
an impact on various agencies’ capacity
to conduct identity, background and
security investigations in a timely
manner.
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Requirement for Aliens in Proceedings
To Provide Biometrics and Other
Biographical Information
The Act imposes a general obligation
on aliens who are applicants for
admission to demonstrate clearly and
beyond doubt that they are entitled to
admission and are not inadmissible
under section 212(a) of the Act (8 U.S.C.
1182(a)). Almost all of the various forms
of relief from removal require the
applicant to demonstrate either that he
or she is admissible under applicable
legal standards, or that he or she has not
been convicted of certain disqualifying
offenses or engaged in other specified
conduct. The results of the DHS
background and security checks are
obviously quite relevant to a
determination of an alien’s admissibility
or eligibility with respect to the
requested immigration relief. Moreover,
an applicant for any form of
immigration relief in proceedings bears
the burdens of proof—i.e., the burden of
proceeding and the burden of
persuasion—in demonstrating that he or
she is eligible for such relief and, if
relevant, that he or she merits a
favorable exercise of discretion for the
granting of such relief. 8 CFR 1240.8(d);
see, e.g., Matter of Lennon, 15 I&N Dec.
9, 16 (BIA 1974), remanded on other
grounds sub nom. Lennon v. INS, 527
F.2d 187 (2d Cir. 1975) (adjustment of
status to that of a lawful permanent
resident).
For adjustment of status, section
245(a) of the Act requires that an
applicant meet three conditions in
addition to a favorable exercise of
discretion: (1) He or she must make an
application for adjustment of status; (2)
he or she must be eligible to receive a
visa and be admissible for permanent
residence; and (3) an immigrant visa
must be immediately available at the
time of application. Thus, it is first and
foremost the applicant’s responsibility
to file a complete application for
adjustment of status (DHS Form I–485)
and submit the required supporting
documentation (including the
respondent’s biometric and other
biographical information) to establish
eligibility to receive a visa and
admissibility to the United States. Other
forms of relief such as asylum,
withholding of removal, or cancellation
of removal also place the burden of
proof on the alien, and require the alien
to file the proper application for relief
and submit all of the necessary
supporting documentation in the

proceedings before the immigration
judge, as provided in 8 CFR 1240.8(d).4
The rule therefore specifically
provides that applicants for immigration
relief in proceedings before the
immigration judges have the obligation
to comply with applicable requirements
to provide biometrics and other
biographical information.
For aliens who are not in proceedings
and who seek to apply for asylum or for
adjustment of status or some other
status, the alien files the appropriate
form directly with USCIS, and USCIS
then informs the alien when and where
the alien (and any covered family
members) should go to provide
biometrics and other biographical
information. Fingerprints normally are
taken by USCIS at an Application
Support Center (ASC).
However, a different approach is
needed where the respondent in
proceedings applies for asylum,
adjustment of status, or other forms of
relief that are available in removal
proceedings, such as cancellation or
withholding of removal. In these
instances, where the immigration
proceedings have already begun,
respondents file the appropriate
application forms and related
documents in the proceedings before the
immigration judge, rather than with
USCIS.
At a master calendar hearing or other
hearing at which the immigration judge
addresses issues relating to whether a
respondent is removable, the
immigration judge normally reviews
with the respondent possible forms of
relief from removal, including asylum,
adjustment of status, cancellation of
removal, or other forms of relief or
protection, if the respondent is
potentially eligible. 8 CFR 1240.11. At
that hearing, or at a subsequent master
4 For asylum applicants, the current regulations at
8 CFR 1208.10 and the instructions to the Form I–
589, Application for Asylum and for Withholding
of Removal, already provide notice that an
individual and any included family members 14
years of age and older cannot be granted asylum
until the required identity, background, and
security checks have been conducted. The
regulations at 8 CFR 1208.10 and the instructions
to the Form I–589 at Part 1, IX, page 9, clearly notify
asylum applicants before an immigration judge that
failure to comply with fingerprint and other
biometrics requirements will make the applicant
ineligible for asylum and may delay eligibility for
work authorization. The regulations at 8 CFR 1208.3
(Form of application) and the Form I–589
Instructions, Part 1, sections V, VI, VII, X, XI and
XII at pages 5 through 10, also specify what
constitutes a complete application for asylum and
for withholding of removal or protection under the
Convention Against Torture. The results of the
background and security checks are relevant for an
alien’s eligibility for withholding of removal, and
for determining whether an alien seeking protection
under the Convention Against Torture is eligible
only for deferral of removal under 8 CFR 1208.17.

hearing, the immigration judge normally
establishes a date by which the
application must be filed with the
immigration judge and served on DHS,
and a later date for a hearing at which
the immigration judge will consider the
application.
This rule provides that applications
for adjustment of status, cancellation or
withholding of removal, or other forms
of relief covered by this rule will be
deemed to be abandoned for
adjudication if, after notice of the
requirement to provide biometrics or
other biographical information to DHS,
the applicant fails without good cause to
provide the necessary biometrics and
other biographical information to DHS
by the date specified by the immigration
judge. As noted, in many cases, the
alien will already have provided
biometrics or other biographical
information in connection with the
removal proceedings prior to the master
calendar hearing or other hearing at
which the alien indicates an intention to
seek immigration relief. However, in
those instances where the respondent
has not yet provided biometrics or other
biographical information to enable DHS
to conduct those checks or where DHS
notifies the immigration judge or the
Board that checks have expired and
need to be updated, it is clear that the
application cannot be granted by the
immigration judge or the Board.
In those instances, until the
respondent and any covered family
members appear at the appropriate
location to provide DHS their biometrics
or other biographical information, the
application cannot be granted or may be
found to be abandoned if there is a
failure to comply without good cause by
the date specified by the immigration
judge. Thereafter, once the biometric
and other biographical information is
provided as required, DHS should be
allowed an adequate time to complete
the appropriate identity, law
enforcement, and security investigations
before the application is scheduled for
decision by the immigration judge.
This approach clearly places the
responsibility for taking the initiative to
provide biometrics or other biographical
information in a timely manner on the
respondent who is seeking relief,
consistent with the respondent’s
burdens of proceeding and persuasion.
By requiring the respondent to provide
biometrics or other biographical
information to DHS in a timely manner
or risk a finding that the application has
been abandoned, this rule will facilitate
the prompt adjudication of cases.
In general, aliens in proceedings who
are obligated to provide biometrics or
other biographical information can do
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so by making appropriate arrangements
with local DHS offices. In many cases,
this will involve visiting an ASC, the
same place to which an applicant would
be directed if he or she had filed an
affirmative application for asylum or
adjustment of status directly with
USCIS.
Upon the applicant’s filing of an
application for relief with the
immigration court or USCIS’s referral of
the application to an immigration judge,
unless DHS informs the immigration
judge that new biometrics are not
required, DHS will provide the alien
with a standard biometrics appointment
notice prepared by an appropriate DHS
office. USCIS District Directors and
Immigration and Customs Enforcement
Counsel, in consultation with the Office
of the Chief Immigration Judge, will
develop scheduling procedures and
standardized appointment notices for
each location. The DHS fingerprint
notice will be hand-delivered to the
alien by DHS and the notice may be
used for multiple family members, but
the notice must contain at least the alien
registration number, receipt number (if
any), name, and the form number
pertaining to the relief being sought for
each person listed. Locally established
procedures will ensure that applicants
for relief from removal receive
biometrics services in a time period
compatible with DHS resources and the
scheduled immigration proceedings.
The immigration judge shall specify for
the record when the respondent receives
the notice and the consequences for
failing to comply with biometrics
processing. On the other hand, aliens
who are currently in detention—either
immigration custody under section 236
of the Act (or other provision of law)
during the pendency of the removal
proceedings, or in a federal, state, or
local correctional facility based on a
criminal conviction—will not have such
flexibility. In the case of any detained
alien, DHS will make the necessary
arrangements to obtain biometrics and
other biographical information if that
has not already been collected in a
manner that can be re-used by DHS for
updating checks.
Failure To File a Complete Application
for Relief in a Timely Fashion
The rule also codifies the existing
Board precedent that failure to file or to
complete an application in a timely
fashion constitutes abandonment of the
application. Where an immigration
judge has set a deadline for filing an
application for relief, the respondent
has already in fact appeared at a
hearing. His statutory right to be present
has been fulfilled. The Board has long

held that applications for relief under
the Act are properly denied as
abandoned when the alien fails to
timely file them. See Matter of Jean, 17
I&N Dec. 100 (BIA 1979) (asylum),
modified, Matter of R-R-, 20 I&N Dec.
547 (BIA 1992); Matter of Jaliawala, 14
I&N Dec. 664 (BIA 1974) (adjustment of
status); Matter of Pearson, 13 I&N Dec.
152 (BIA 1969) (visa petition); see also
Matter of Nafi, 19 I&N Dec. 430 (BIA
1987) (exclusion proceedings).
Accordingly, the rule specifies that the
immigration judge shall issue an
appropriate order denying or
pretermitting the requested relief if the
application is not timely filed or is not
completed in a timely manner.
With respect to a failure to provide
biometrics or other biographical
information, the rule allows an
immigration judge to excuse the failure
to comply with these requirements
within the time allowed if the applicant
demonstrates that such failure was the
result of good cause. This language is
taken from the current provision in 8
CFR 1208.10 pertaining to applications
for asylum and is consistent with the
general obligation placed on the alien to
satisfy this requirement. For detained
aliens, though, it is the obligation of
DHS to obtain the necessary biometrics
and other biographical information.
Covered Forms of Immigration Relief
The Department notes that current
law prohibits the immigration judges
from granting asylum to any alien prior
to the completion of identity, law
enforcement, and security
investigations. Section 208(d)(5)(A)(i) of
the Act (8 U.S.C. 1158(d)(5)(A)(i)),
expressly provides that
asylum cannot be granted until the identity
of the applicant has been checked against all
appropriate records or databases maintained
by the Attorney General [or the Secretary of
Homeland Security] and by the Secretary of
State, including the Automated Visa Lookout
System, to determine any grounds on which
the alien may be inadmissible to or
deportable from the United States, or
ineligible to apply for or be granted asylum.

Since the applicants have the
obligation to submit a complete
application and supporting
documentation for the requested
immigration relief, as discussed above,
and the results of the DHS background
and security checks are obviously of
great relevance in evaluating issues
relating to admissibility, qualifications,
and discretion, the Attorney General has
concluded that it is sound public policy
to impose the procedural requirements
of this rule relating to submission of
biometric and other biographical
information and completion of the DHS

background and security checks prior to
the granting of adjustment to LPR status,
cancellation or withholding of removal,
or other forms of relief permitting the
alien to remain in the United States.
Granting permanent resident status is an
important step with substantial benefits
that has special procedures for
rescinding such status under section
246 of the Act (8 U.S.C. 1256). Other
forms of relief allow the alien to remain
legally in the United States and should
not be granted, as a matter of sound
public policy, until the applicant has
complied with applicable requirements
relating to biometrics and other
biographical information, and until DHS
has had the opportunity to complete the
necessary identity, law enforcement,
and security investigations that are
relevant to a determination of whether
the alien should be granted the
requested immigration relief.
Accordingly, the rule provides a
procedural requirement that the
immigration judges or the Board may
not grant any form of immigration relief
allowing the alien to reside in the
United States without ensuring that
DHS has completed the identification,
law enforcement, and security
investigations and examinations first.
This will ensure that the results of such
background checks or other
investigations have been reported to and
considered by the immigration judges or
the Board before the issuance of any
order granting an alien’s application for
immigration relief that permits him or
her to remain in the United States. The
rule does not expand the circumstances
in which the immigration judges or the
Board have authority to grant relief, but
is applicable in any case to the extent
they do have such authority. Section
1003.47(b) identifies the principal forms
of immigration relief covered by this
rule, including:
• Asylum under section 208 of the
Act;
• Adjustment of status to that of an
LPR under section 209 or 245 of the Act
(8 U.S.C. 1159, 1255) or any other
provision of law; 5
5 Section 245 of the Act is the principal provision
relating to adjustment of status, but section 209
provides the exclusive procedure for adjustment of
status for refugees and asylees. See 8 CFR 1209.1,
1209.2; Matter of Jean, 23 I&N Dec. 373, 376 n.7,
381 (A.G. 2002). Among the other laws relating to
adjustment of status are the following, although the
immigration judges do not exercise authority at
present over all of them: Cuban Adjustment Act,
Public Law 89–732, §§ 1–5, 80 Stat. 1161 et seq.
(Nov. 2, 1966); Indochinese Adjustment Act, Public
Law 95–145, §§ 101–107, 91 Stat. 122 (Oct. 28,
1977); Virgin Islands Adjustment Act, Public Law
97–271, 76 Stat. 1157 (Sept. 30, 1982); Soviet and
Indochinese Parolees Adjustment Act, Public Law
101–167, § 599E, 101 Stat. 1263 (Nov. 21, 1989); H–
1 Nonimmigrant Nurses Adjustment Act, Public

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• Conditional permanent resident
status or the removal of the conditional
basis of such status under section 216 or
216A of the Act (8 U.S.C. 1186a, 1186b);
• Waivers of inadmissibility or
deportability under sections 209(c), 212,
or 237 of the Act (8 U.S.C. 1159, 1182,
1227) or other provisions of law;
• Cancellation of removal under
section 240A of the Act (8 U.S.C.
1229b), suspension of deportation under
former section 244 of the Act, relief
from removal under former section
212(c) of the Act, or any similar form of
relief; 6
• Withholding of removal under
section 241(b)(3) of the Act (8 U.S.C.
1231) or withholding or deferral of
removal under the Convention Against
Torture;
• Registry under section 249 of the
Act (8 U.S.C. 1259); and
• Conditional grants relating to the
above, such as for applications seeking
asylum pursuant to section 207(a)(5) of
the Act or cancellation of removal in
light of section 240A(e) of the Act.
In addition to those provisions
specifically listed, this rule covers any
other form of relief granted by the
immigration judges or the Board that
allows the alien to remain in the United
States.
Allowing Time for DHS To Complete
Background Checks and Investigations
The Department wishes to avoid
unnecessary delays that may frustrate
the timely adjudication of any case
simply because of a failure to conduct
or complete the investigations or indices
checks. This rule provides a means to
ensure that DHS will have an
appropriate opportunity to conduct the
necessary investigations including an
alien’s submission of his or her
biometric or other biographical
information, before the application is
granted by the immigration judge. This
rule does not impose a unilateral
definition of what the investigations and
examinations will constitute in every
case; it remains the province of DHS to
determine what identity, law
Law 101–238, § 2, 103 Stat. 2099 (Dec. 15, 1989);
Chinese Student Protection Act of 1992, Public Law
102–404, 106 Stat. 1969 (Oct. 9, 1992); Polish and
Hungarian Parolees Adjustment Act of, Public Law
104–208, Div. C, § 646, 110 Stat. 3009–709 (Sept.
30, 1996); Nicaraguan Adjustment and Central
American Relief Act (NACARA), Public Law 105–
100, § 202, 11 Stat. 2193 (Nov. 19, 1997); Haitian
Refugee Immigration Fairness Act (HRIFA), Public
Law 105–277, Div. A, § 101(h) [Title IX, § 902], 112
Stat. 2681–538 (Oct. 21, 1998); Syrian Adjustment
Act, Public Law 106–378, 114 Stat. 1442 (Oct. 27,
2000); and Indochinese Parolees Adjustment Act,
Public Law 106–429, § 101(a), 114 Stat. 1900 (Nov.
6, 2000).
6 This includes special rule cancellation of
removal under NACARA § 203.

enforcement, and security investigations
and indices checks are required (this
may vary over time and from case to
case) and when those investigations and
indices checks are complete. After
providing a reasonable period of time
for DHS to initiate the necessary
investigations and to await the results
from other law enforcement and
intelligence agencies, as necessary, the
immigration judge will then be able to
address the requested forms of
immigration relief on the merits. The
Department recognizes that DHS cannot
always know the exact period of time
that will be required to complete all
checks and investigations because the
information often is within the control
of non-DHS agencies, such as the
Federal Bureau of Investigation or the
Central Intelligence Agency. The
national security of the country and
public safety of its residents depend on
swift responses, as does the efficient
administration of the immigration laws.
If, for any reason, DHS is not ready to
present the results of its identity, law
enforcement, and security investigations
by the time of the scheduled final
hearing, then it will be up to DHS to
make a request for a continuance (in
advance of the hearing if possible) and
to explain, to the extent practical, the
time needed for completion. In some
cases for example, where DHS is
conducting an ongoing investigation of
the respondent’s identity or issues
raised by other law enforcement
agencies who may themselves have
pending investigations, or indicates that
a United States Attorney is presenting
evidence to a grand jury concerning the
respondent, multiple continuances
would be justified by the ongoing
criminal process into which neither
DHS nor the immigration judge can
intrude. This process contemplates that,
if DHS indicates that it is unable to
complete the identity, law enforcement,
or security investigation because of a
pending investigation of the
respondent—either by DHS or by any
other agency—then DHS will be able to
obtain a further continuance to
complete the pending investigation.
The Attorney General has delegated
authority to immigration judges in the
past to close cases administratively in
certain contexts, particularly in those
cases where DHS, rather than the
immigration judge, has substantive
authority over a particular form of relief.
See 8 CFR 1240.62, 1245.13, 1245.15,
1245.21. However, the regulations do
not authorize the immigration judge to
close cases administratively solely
because the respondent is subject to
investigation or indices checks.
Administrative closure causes a case to

fall out of the regular calendar,
undermining an assurance that the case
will be resolved in a timely manner.
Instead, this rule contemplates that
cases awaiting the completion of an
identity, law enforcement, or security
investigation should remain on an
active calendar and should be on
schedule for a hearing on a particular
date. Instead of administrative closure,
the Department anticipates that the
continuance process described in this
rule will deal with the necessary delays
inherent in completing identity, law
enforcement, and security investigations
and examinations for certain
respondents.
The Department recognizes the
importance of completing the
investigations and indices checks in
advance and allowing an adequate
opportunity for DHS or other agencies to
complete the necessary steps regarding
the background investigations. On
occasion, immigration judges have
attempted to ‘‘order’’ DHS to complete
investigations by a specific date, an
authority that was never delegated by
the Attorney General when the
functions of the former Immigration and
Naturalization Service were a part of the
Department of Justice, and an authority
that the Attorney General does not now
delegate to immigration judges.
However, the Department believes
that it is also important for the
immigration judge to be able to move
cases toward completion. The
Department believes that the rule
properly balances the respective and
competing interests in that very small
number of affected cases where DHS is
not able to complete the necessary
identity, law enforcement, and security
investigations of the alien in time for the
scheduled hearing on the merits of the
alien’s application for immigration
relief.
In some cases, the continuance of a
merits hearing would impose significant
burdens on the court, the respondent, or
witnesses, and this rule does not
prohibit an immigration judge from
proceeding with a merits hearing in the
absence of a report from DHS that all
background investigations are complete.
In such cases, the immigration judge
may hear the case on the merits but may
not render a decision granting any
covered form of relief. Instead, the
immigration judge should schedule an
additional master hearing on a date by
which investigations are expected to be
completed.
Procedures for Cases on Appeal Before
the Board
This rule also provides new
procedures codified at § 1003.1(d)(6) to
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take account of those cases where the
Board is considering relief from removal
that is subject to the provisions of
§ 1003.47(b), to ensure that the Board
does not affirm or grant such relief
where the identity, law enforcement,
and security investigations or
examinations have not been conducted
or the results of prior background
checks have expired and must be
updated.
In most of the currently pending cases
(sometimes referred to as pipeline or
transitional cases), there is no indication
in the record whether or not DHS ever
conducted the identity, law
enforcement, and security investigations
or examinations with respect to the
respondent. In such cases, the Board
will not be able to issue a final decision
granting any application for relief that is
subject to the provisions of § 1003.47,
because the record is not yet complete.
After consideration of the issues on
appeal, the Board will remand the case
to the immigration judge with
instructions to allow DHS to complete
the necessary investigations and
examinations and report the results to
the immigration judge.
In the future, though, once the
provisions of § 1003.47 take effect, the
Department recognizes that for those
cases appealed to the Board involving
applications for relief, DHS will have
completed the appropriate background
checks either in advance of the filing of
the NTA or prior to the immigration
judge’s decision. The issue on appeal
therefore will be whether those checks
are current and whether new
information has developed since
completion of the initial background
checks that would affect the appeal and
the underlying application for relief.
Based upon the consideration that
DHS will have run background checks
at least once prior to the time the Board
is considering an appeal, this rule
provides a new limitation that the Board
cannot grant an application for relief if
DHS notifies the Board that the
background checks have expired and
need to be updated or if the background
checks have uncovered information
bearing on the merits of the alien’s
application for relief. Because DHS (not
the immigration judge or the Board)
determines the requirements and timing
for updating previous investigations or
examinations, and DHS may decide to
revise such standards and requirements
over time, it is appropriate to require
DHS to notify the Board in those cases
where DHS has determined that the
results of the previous checks have
expired and must be updated. However,
in view of the time needed for the Board
to complete its case adjudications, the

Department acknowledges that in many
(perhaps most) appeals the results of the
previous identity, law enforcement, and
security investigations or examinations
will no longer be current under the
standards established by DHS and must
be updated before the Board has
completed its adjudication process.
(Under the current regulations in 8 CFR
1003.1(e), the Board is required to
adjudicate cases within 90 days after the
completion of the record on appeal for
cases assigned to a single Board
member, or within 180 days after
completion of the record on appeal for
cases assigned to a three-member panel.
Those time frames, however, do not
include the time needed to complete the
record on appeal, including
transcription of the proceedings before
the immigration judge and completion
of briefing by the parties.)
In those cases where DHS advises the
Board that the results of earlier
investigations are no longer current
under DHS’s standards, the Board will
not be able to issue a final decision
granting or affirming any form of relief
covered by § 1003.47. Except as
provided in § 1003.1(d)(6)(iv) of this
rule, the Board will then choose one of
two alternatives in order to complete the
adjudication of the case in the most
expeditious manner. In many such
cases, after consideration of the merits
of the appeal, the Board will issue an
order remanding the case to the
immigration judge to permit DHS to
update the results of the previous
identity, law enforcement, and security
investigations or examinations and
report the results to the immigration
judge. In the alternative, after
consideration of the merits of the
appeal, the Board may provide notice to
both parties that in order to complete
the adjudication of the appeal the case
is being placed on hold to allow DHS to
update biometrics and other
biographical information processing
requirements and any remaining
identity, law enforcement, and security
investigations. (The rule also includes a
conforming amendment to the existing
time limits for the Board’s disposition of
appeals). Under the provisions of
§ 1003.1(d)(6) and § 1003.47(e), as added
by this rule, DHS is obligated to
complete the investigations as soon as
practicable and to advise the Board
promptly whether or not the
investigations have been completed and
are current.
This rule does not disturb the Board’s
authority to take administrative notice
of the contents of official documents as
provided in 8 CFR 1003.1(d)(3)(iv). If
there are any issues to be resolved
relating to any information bearing on

the respondent’s eligibility (or, if the
relief is discretionary, whether that
information supports a denial in the
exercise of discretion), DHS may file a
motion with the Board to remand the
record of proceedings to the
immigration judge. Where the Board
cannot properly resolve the appeal
without further factfinding, the record
may be remanded to the immigration
judge.
In the short term, the Department
anticipates that remanding cases to the
immigration judge may be the most
efficient means to complete or update
results for pipeline or transitional cases,
since that process will facilitate DHS’s
ability to obtain new biometrics from
the respondent for the purpose of
updating previous identity, law
enforcement, and security investigations
or examinations. Over time, however, as
DHS is able to improve its internal
procedures for updating the results of
previous investigations or examinations
without the need for aliens to provide
a new set of fingerprints, the
Department expects that the Board and
DHS should be able to make much
greater use of the procedure for holding
pending appeals where necessary in
order to allow the opportunity for DHS
to update prior results without requiring
a remand.
In any case that is remanded to the
immigration judge pursuant to
§ 1003.1(d)(6), the Board’s order will be
an order remanding the case and not a
final decision, in order to allow DHS to
complete or update the identity, law
enforcement, and security investigations
or examinations of the respondent(s).
The immigration judge will then
consider the results of the completed or
updated investigations or investigations
before issuing a decision granting or
denying the relief sought. If DHS
presents additional information as a
result, the immigration judge may
conduct a further hearing as needed to
resolve any legal or factual issues raised.
The immigration judge’s decision
following remand may be appealed to
the Board as provided by §§ 1003.1(b)
and 1003.38 if there is any new
evidence in the record as a result of the
background investigation.
Section 1003.1(d)(6)(iv) of this rule,
however, provides that the Board is not
required to remand or hold a case under
§ 1003.1(d)(6) if the Board decides to
dismiss the respondent’s appeal or deny
the relief sought. In any case where the
results of the DHS investigations or
examinations would not affect the
disposition of the case—for example,
where the Board determines that the
respondent’s appeal should be
dismissed or the alien is ineligible for
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the relief sought because of a criminal
conviction or is unable to establish
required elements for eligibility such as
continuous physical presence, extreme
hardship, good moral character, or past
persecution or a well-founded fear of
future persecution—there is no reason
to delay the Board’s disposition of the
case. The results of the identity, law
enforcement, or security investigations
or examinations may be relevant to the
exercise of discretion in granting or
denying relief in some cases, but not in
cases where the respondent is unable to
establish eligibility in any event.
The Department recognizes that the
implementation of this rule will mean
that many cases may be continued by
the immigration judges or remanded or
placed on hold by the Board pending
the completion or updating of the
necessary identity, law enforcement,
and security investigations or
examinations by DHS. This is
particularly true for the pipeline or
transitional cases that are already
pending as of the date this rule takes
effect. Nevertheless, the Department has
determined that the security of the
United States is of the utmost
importance and requires that aliens not
be granted the forms of relief covered by
§ 1003.47 unless the identity, law
enforcement, and security investigations
and examinations have been conducted
by DHS and are up-to-date. The
Department is therefore publishing this
rule as an interim rule. Moreover, after
the initial implementation period, it is
expected that the number of cases where
immigration judges will continue a case
under § 1003.47(f) or where the Board is
required to hold or remand a case under
§ 1003.1(d)(6) will diminish over time.
The Department anticipates that in the
future DHS will be able to improve its
procedures for conducting and updating
its investigations or examinations in
such a manner as to minimize the
delays in the adjudicatory process.
Granting of Relief
When the immigration judge or the
Board grants relief entitling respondent
to a document from DHS evidencing
status, the decision will include either
an oral or written notification to the
respondent to appear before the
appropriate local DHS office for
preparation of such document or to
obtain required biometric and other
biographical information for preparation
of such document. In the past, the lack
of such a notification by immigration
judge and Board decisions and the
ambiguity of an Immigration and
Customs Enforcement counsel’s
responsibility to provide such
instruction relating to a function of CIS

have resulted in confusion on the part
of the alien about the process for
receiving such document. It is expected
that the local DHS office will promptly
direct the respondent to submit to any
biometric processing necessary to
prepare documents in keeping with
biometric and other requirements of the
law.
Conforming Amendments to Part 1208
This rule makes conforming
amendments to 8 CFR part 1208 to
ensure consistency with the provisions
of § 1003.47 as added by this rule. The
rule amends § 1208.4 to provide that an
asylum application filed in proceedings
before an immigration judge is
considered to have been filed regardless
of when biometrics are completed, as
provided in § 1003.47. Failure to
comply with processing requirements
for biometrics and other biographical
information within the time allowed
will result in dismissal of the
application, unless the applicant
demonstrates that such failure was the
result of good cause under § 1003.47(c)
and (d) and amended 8 CFR 1208.10.
This rule also revises the language of
§ 1208.10 to eliminate confusing and
unnecessary language that pertains to
the processing of asylum applications
by asylum officers in USCIS rather than
by the immigration judges. Retention of
such provisions pertaining solely to
DHS’s asylum office procedures—
including the reference to a failure to
appear for an asylum interview before
an asylum officer, the waiver of the right
to an adjudication by an asylum officer,
and providing a change of address to the
Office of International Affairs—is
unnecessary and inappropriate in the
Attorney General’s regulations in part
1208 that now govern consideration of
asylum cases by the immigration judges
and the Board.7 (Such provisions, of
7 Pursuant to the Homeland Security Act of 2002,
Public Law 107–296, on March 1, 2003, the
functions of the former Immigration and
Naturalization Service were transferred from the
Department of Justice to DHS. Although the
responsibility for the Asylum Officer program was
transferred to USCIS, the immigration judges and
the Board remained under the authority of the
Attorney General and retained their preexisting
authority with respect to applications for asylum
and withholding of removal filed or renewed by
aliens in removal proceedings. Since both the
Secretary of Homeland Security and the Attorney
General are vested with independent authority over
asylum matters and certain other matters under the
Immigration and Nationality Act, it was necessary
for the Attorney General to promulgate a new set
of regulations pertaining to the authority of the
immigration judges and the Board, separate from
the previous INS regulations. Accordingly, on
February 28, 2003, the Attorney General published
regulations reorganizing title 8 of the Code of
Federal Regulations, creating a new chapter V for
regulations of the Department of Justice, which is

course, are still retained in the DHS
regulations in 8 CFR part 208 relating to
the consideration of asylum
applications by asylum officers.)
There is no need for lengthy
provisions in § 1208.10 pertaining to an
alien’s failure to appear for a hearing
before an immigration judge because the
Act already provides clear procedures
for dealing with a failure to appear,
including the issuance of an order of
deportation or removal in absentia in
appropriate cases, and also a process for
seeking rescission of an in absentia
order. See section 240(b)(5) and former
section 242B(c) of the Act. There is also
no need for discussion of a change of
address in this context because the Act
and the regulations already include
clear provisions relating to the
obligation of aliens to provide a current
address to the Attorney General in
connection with the immigration
proceedings. Accordingly, after a brief
reference to the consequences for an
alien’s failure to appear for a
deportation or removal proceeding,
§ 1208.10 is revised to focus on the issue
of a failure to comply with requirements
to provide biometrics and other
biographical information, consistent
with the provisions of § 1003.47.
This rule also makes a conforming
amendment in § 1208.14 to require
compliance with the requirements of
§ 1003.47 concerning identity, law
enforcement, and security investigations
before an immigration judge can grant
asylum. This change codifies the
existing statutory requirement in section
208(d)(5)(A)(i) of the Act and crossreferences the procedural requirements
in § 1003.47.
Voluntary Departure
Section 240B of the Act (8 U.S.C.
1229c) authorizes DHS (prior to the
initiation of removal proceedings) or an
immigration judge (after the initiation of
removal proceedings) to approve an
alien’s request to be granted the
privilege of voluntary departure in lieu
of being ordered removed from the
United States. Although a grant of
voluntary departure does not authorize
an alien to remain indefinitely in the
United States, it permits the alien to
separate from the regulations of the new DHS that
continue to be codified in 8 CFR chapter I. 68 FR
9824 (February 28, 2003); see also 68 FR 10349
(March 5, 2003). As a result of the shared authority
over asylum matters, and in view of the limited
time available to implement the necessary changes,
the Attorney General’s new regulations duplicated
the asylum and withholding of removal regulations
in part 208 into a new part 1208 in chapter V. The
Department of Justice and DHS are now engaged in
the process of amending their respective regulations
to eliminate unnecessary provisions pertaining to
the authority of the other agency.

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remain in the United States until the
expiration of the period of voluntary
departure—generally, up to 120 days if
voluntary departure is granted prior to
the completion of immigration
proceedings pursuant to 8 CFR
1240.26(b) and up to 60 days if granted
at the conclusion of the proceedings
before the immigration judge pursuant
to 8 CFR 1240.26(c).
The identity, law enforcement, and
security checks conducted by DHS are
also relevant in connection with the
granting of voluntary departure by an
immigration judge, whether during the
pendency of removal proceedings or at
the completion of those proceedings.
This is so because the results of the
investigations may be relevant with
respect to the exercise of discretion by
the immigration judge in deciding
whether or not to grant voluntary
departure, and also in view of the
requirement that an alien must
demonstrate good moral character to
obtain voluntary departure at the
conclusion of removal proceedings. See
8 CFR 1240.26(c). A grant of voluntary
departure is a valuable benefit because
it allows an alien who departs the
country within the allowable period to
avoid the adverse future consequences
under the immigration laws attributable
to having been ordered removed.
On the other hand, the Department
recognizes the importance of granting of
voluntary departure in proper cases,
whether voluntary departure is granted
prior to the conclusion of immigration
proceedings or in lieu of an order of
removal, without causing unnecessary
delays in the process. As a practical
matter, the DHS background and
security checks may be completed
routinely in many cases in a timely
manner, if DHS captures the alien’s
biometrics or other biographical
information and initiates the necessary
investigations prior to or at the time of
issuing and filing the NTA, but there
will be some cases as noted above where
completion of the background or
security checks may require a
significant additional period of time.
Accordingly, this rule does not
propose to require the immigration
judges to wait until being advised by
DHS that it has completed the
appropriate identity, law enforcement,
and security investigations before the
immigration judges can grant voluntary
departure. However, the rule recognizes
that DHS may affirmatively seek
additional time to complete such
investigations in some cases prior to the
granting of voluntary departure, and
allows the immigration judges to decide
such requests for a continuance on a
case-by-case basis.

This rule also makes an
accommodation in the existing time
limits with respect to the granting of
voluntary departure prior to the
conclusion of removal proceedings,
where the alien makes a request for
voluntary departure no later than the
master calendar hearing at which the
case is initially calendared for a merits
hearing, as provided in 8 CFR
1240.26(b)(1)(i)(A). In such a case,
where the DHS investigations have not
yet been completed, the immigration
judge may grant a continuance to await
the results of DHS’s investigations
before granting voluntary departure. The
granting of a continuance will thereby
extend the 30-day period, as currently
provided in § 1240.26(b)(1)(ii), for the
immigration judge to grant a request for
voluntary departure prior to the
conclusion of removal proceedings.
Custody Redeterminations
In view of the distinct nature of
custody redetermination hearings before
the immigration judges, and the
exigencies of time often associated with
such hearings, this rule does not
propose to apply the same procedures
for custody hearings as for removal
proceedings. See 8 CFR 1003.19(d)
(custody and bond hearings separate
and apart from removal proceedings).
Although some background or
security investigations may require
weeks or months to resolve certain
sensitive or difficult issues, as noted
above, the initial determinations
relating to holding aliens in custody
during the pendency of removal
proceedings against them must be made
on a more expedited basis. Under its
existing regulations, DHS generally
must make a decision on the continued
detention of an alien within 48 hours of
apprehending the alien, except in the
case of an emergency or other
extraordinary circumstances requiring
additional time. 8 CFR 287.3(d).
Thereafter, unless the alien is subject to
detention pursuant to section 236(c) of
the Act or other special circumstances,
the alien can immediately request a
hearing before an immigration judge to
seek a redetermination of the conditions
of custody, as provided in 8 CFR
1003.19.
The Supreme Court has repeatedly
‘‘recognized detention during
deportation proceedings as a
constitutionally valid aspect of the
deportation process,’’ Demore v. Kim,
538 U.S. 510, 523 (2003), and has
recognized that ‘‘Congress eliminated
any presumption of release pending
deportation, committing that
determination to the discretion of the
Attorney General.’’ Reno v. Flores, 507

U.S. 292, 306 (1993); see also Carlson v.
Landon, 342 U.S. 524, 538–40 (1952).
Under section 236 of the Act (8 U.S.C.
1226), an alien has no right to be
released from custody during the
pendency of removal proceedings, and
both DHS, in making custody decisions,
and the Attorney General, the Board,
and the immigration judges, in
conducting reviews of custody
determinations, have broad discretion in
deciding whether or not an alien has
made a sufficient showing to merit
being released on bond or on personal
recognizance pending the completion of
removal proceedings.
As recognized by the Supreme Court,
section 236(a) does not give detained aliens
any right to release on bond. Rather, the
statute merely gives the Attorney General the
authority to grant bond if he concludes, in
the exercise of broad discretion, that the
alien’s release on bond is warranted. The
extensive discretion granted the Attorney
General under the statute is confirmed by its
further provision that ‘‘[t]he Attorney
General’s discretionary judgment regarding
the application of this section shall not be
subject to review.’’ Section 236(e) of the INA.
Even apart from that provision, the courts
have consistently recognized that the
Attorney General has extremely broad
discretion in determining whether or not to
release an alien on bond under this and like
provisions. Further, the INA does not limit
the discretionary factors that may be
considered by the Attorney General in
determining whether to detain an alien
pending a decision on asylum or removal.

Matter of D-J-, 23 I&N Dec. 572, 575–76
(A.G. 2003) (citations omitted; emphasis
in original).
The existing regulations provide that
an immigration judge, in reviewing a
custody determination by DHS, may
consider any relevant information
available to the immigration judge or
any information presented by the alien
or by DHS. 8 CFR 1003.19(d). There can
be no doubt that the results of DHS’s
identity, law enforcement, and security
investigations can be quite relevant with
respect to a redetermination of custody
conditions by the immigration judge for
aliens detained in connection with
immigration proceedings. The custody
decisions should be made on the basis
of as complete a record as possible
under the circumstances, but must be
made promptly in light of applicable
legal standards.
Accordingly, § 1003.47(k) of the rule
provides that the immigration judges, in
scheduling a custody redetermination
hearing in response to an alien’s request
under 8 CFR 1003.19(b), should take
into account, to the extent practicable
consistent with the expedited nature of
such cases, the brief initial period of
time needed by DHS to conduct the
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automated portions of its identity, law
enforcement, and security checks prior
to a custody redetermination by an
immigration judge.
This rule contemplates that DHS may
have an opportunity to present at least
the results of automated checks, to the
extent practicable, but does not require
the immigration judges to wait until
being advised by DHS that it has
completed all appropriate identity, law
enforcement, and security investigations
before the immigration judges can order
an alien released on bond or personal
recognizance. However, the rule
specifically provides that DHS may
affirmatively request that the
immigration judge allow additional time
to complete such investigations in
particular cases prior to the issuance of
a custody decision, and the immigration
judge will decide such requests for a
continuance on a case-by-case basis.
Allowing a brief initial period of time
for DHS to complete the automated
portions of its background and security
checks, and providing a process for DHS
to request additional time in particular
cases to resolve issues in those
investigations, is sound public policy in
order to ensure that the immigration
judges’ decisions are based on as
complete a record as possible under the
circumstances. Moreover, this approach
may also be expected to reduce the
number of instances in which an
immigration judge’s custody decision is
subject to an automatic stay pending
appeal to the Board—i.e., in those cases
where DHS as a matter of discretion
chooses to invoke the provisions of 8
CFR 1003.19(i)(2) because of concerns
relating to the unresolved identity, law
enforcement, or security investigations.
Under this rule, though, there will be
cases where the immigration judge may
issue a custody decision without
waiting for DHS to complete all portions
of its identity, law enforcement, or
security checks, particularly where
there is some delay in completing those
investigations. In any case (whether
through the background and security
checks or otherwise) where DHS
subsequently discovers information
reflecting a clear change of
circumstances with regard to the
reasons for detaining an individual
during the pendency of the removal
proceedings, the Department notes that
DHS is free to decide to cancel the
alien’s bond and take the alien back into
custody under section 236 of the Act,
under established procedures. See 8
CFR 236.1(c)(9), 1236.1(c)(9); Matter of
Sugay, 17 I&N Dec. 637, 639 (BIA 1981)
(finding ‘‘without merit [the alien’s]
counsel’s argument that the District
Director was without authority to revoke

bond once an alien has had a bond
redetermination hearing’’ before an
immigration judge); see also Matter of
Valles-Perez, 21 I&N Dec. 769, 772 (BIA
1997) (‘‘the regulations presently
provide that when an alien has been
released following a bond proceeding, a
district director has continuing
authority to revoke or revise the bond,
regardless of whether the Immigration
Judge or this Board has rendered a bond
decision.’’). An alien whose bond has
been revoked after previously being
ordered released by an immigration
judge can then seek a new custody
determination. See Ortega de los
Angeles v. Ridge, No. CV 04–0551–
PHX–JAT (JI) (D. Ariz. Apr. 27, 2004).
Consistent with the district court’s
accurate interpretation of the existing
regulatory language in Ortega, this rule
also revises § 1003.19(e) to clarify this
provision and codify the Department’s
interpretation that it only relates to
subsequent requests for bond
redeterminations made by the alien.
Good Cause Exception
The Department has determined that
good cause exists under 5 U.S.C.
553(b)(B) and (d)(3) to make this rule
effective April 1, 2005, for several
reasons. Protecting national security and
public safety has long been a focus of
U.S. immigration law. Applicants for
immigration benefits are always subject
to some form of law enforcement check
to assess their eligibility for the benefits
or determine their inadmissibility to, or
removability from, the United States.
The September 11, 2001, attack and the
9/11 Commission’s report, however,
have highlighted the urgent need for
immediate reforms to certain
immigration processes, including the
process by which the Department, DHS,
and other law enforcement agencies
initiate, vet, and resolve law
enforcement checks.
Both the Department and DHS have
expanded the number and types of law
enforcement checks conducted on aliens
seeking immigration benefits. However,
vulnerability exists in the manner in
which immigration benefits are given,
particularly when an immigration status
is granted or document is issued prior
to completion of the required law
enforcement checks or investigations by
DHS, the Department, or other law
enforcement agencies. The 9/11
Commission highlighted many of the
dangers posed by terrorists, including
their mobility, and recommended
improved immigration controls that
would ensure, among other things, that
terrorists cannot obtain travel
documents. Certain immigration
statuses granted by DHS and the

Department and certain documents
issued by USCIS authorize aliens not
only to work in the United States but
also to travel freely to and from the
United States. Issuance of this interim
rule will enable DOJ and DHS to detect
aliens who may pose a threat to the
United States before they would
otherwise be granted relief from removal
that would permit them to continue
residing in the United States and to
obtain documents from DHS that permit
them to board planes and other vessels
or work in jobs in the U.S. that could
facilitate their plans to commit terrorist
acts. In addition, possession of an
employment authorization document
demonstrates that an alien’s presence in
the U.S. is ‘‘under color of law,’’ which
not only can facilitate travel within the
U.S., but also can cause a law
enforcement officer or security official
(public or private) not to follow up on
an encounter with the individual.
The significance of completing law
enforcement checks prior to the granting
of applications for relief from removal
by EOIR adjudicators or issuance of
immigration documents by DHS cannot
be overestimated. DHS reports that
through the law enforcement check
process it has discovered that certain
applicants were: (1) Attempting to
procure missile technology for a foreign
government with terrorist ties; (2)
previously deported for attempted drug
smuggling; (3) serving as an executive
officer of a designated foreign terrorist
organization; (4) subject to outstanding
warrants for rape and other aggravated
felonies; and (5) escaped prisoners from
Canada and other countries who were
subject to extradition. If the Department
had granted an application for relief
from removal, such as lawful permanent
resident status, without being apprised
of results from law enforcement checks
or investigations, it is likely that
individuals such as these would have
gained the freedom to move throughout
the United States (and possibly travel
internationally) and to further any
criminal efforts or terrorist activities
that could affect America’s safety and
threaten national security.
Congress has provided DHS and the
Department with authority in certain
instances to rescind, revoke, or
terminate an immigration status that
was illegally procured or procured by
concealment of a material fact or by
willful misrepresentation. See, e.g.
sections 205, 246, and 340 of the Act (8
U.S.C. 1155, 1256, and 1451). However,
the process for rescission, revocation, or
termination of an immigration status or
document in many instances can be
prolonged for several months or years,
particularly in those cases requiring
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judicial review. Even when DHS places
aliens in removal or rescission
proceedings or seeks to terminate or
revoke an immigration status previously
granted, the aliens in most instances
retain their immigration status, even if
granted in error, while such proceedings
are ongoing and until concluded. As a
result, the potential for harm increases
the longer an alien retains an
immigration status or document that he
or she is not lawfully entitled to or
should not have been issued in the first
instance. Therefore, it is imperative that
DHS run background checks before
applications for immigration relief or
protection from removal are granted or
immigration documents are issued.
While we expect that public
comments may help the Department to
improve its process, the urgency of
putting a better system in place
outweighs the opportunity for notice
and comment before any improvement
is made. Accordingly, the Department
finds that it would be impracticable and
contrary to the public interest to delay
implementation of this rule to allow the
prior notice and comment period
normally required under 5 U.S.C.
553(b)(B) and (d)(3). The Department
nevertheless invites written comments
on this interim rule and will consider
any timely comments in preparing the
final rule.

significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.

Regulatory Flexibility Act
The Attorney General, in accordance
with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this
regulation and, by approving it, certifies
that this rule will not have a significant
economic impact on a substantial
number of small entities. It does not
have any impact on small entities as
that term is defined in 5 U.S.C. 601(6).

This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of
1995
This rule will not result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a major rule as
defined by section 251 of the Small
Business Regulatory Enforcement Act of
1996, 5 U.S.C. 804. This rule will not
result in an annual effect on the
economy of $100 million or more; a
major increase in costs or prices; or

Executive Order 12866
This rule is considered by the
Department of Justice to be a
‘‘significant regulatory action’’ under
Executive Order 12866, section 3(f),
Regulatory Planning and Review.
Accordingly, this rule has been
submitted to the Office of Management
and Budget for review.
Executive Order 13132
This rule will not have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
Executive Order 12988, Civil Justice
Reform

Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all
Departments are required to submit to
the Office of Management and Budget
(OMB) for review and approval, any
reporting requirements inherent in a
final rule. This rule does not impose any
new reporting or recordkeeping
requirements under the Paperwork
Reduction Act.
List of Subjects
8 CFR Part 1003
Administrative practice and
procedure, Aliens, Immigration, Legal
services, Organization and function
(Government agencies).
8 CFR Part 1208
Administrative practice and
procedure, Aliens, Immigration,
Organization and function (Government
agencies).
Accordingly, chapter V of title 8 of the
Code of Federal Regulations is amended
as follows:

■

PART 1003—EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW
1. The authority citation for 8 CFR part
1003 continues to read as follows:

■

Authority: 5 U.S.C. 301; 8 U.S.C. 1101
note, 1103, 1252 note, 1252b, 1324b, 1362; 28
U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No.
2 of 1950, 3 CFR, 1949–1953 Comp., p. 1002;
section 203 of Pub. L. 105–100, 111 Stat.
2196–200; sections 1506 and 1510 of Pub. L.
106–386; 114 Stat. 1527–29, 1531–32; section
1505 of Pub. L. 106–554, 114 Stat. 2763A–
326 to –328.

2. Section 1003.1 is amended by
redesignating paragraph (d)(6) as
paragraph (d)(7), adding a new paragraph
(d)(6), and revising paragraph (e)(8)(i), to
read as follows:

■

§ 1003.1 Organization, jurisdiction, and
powers of the Board of Immigration
Appeals.

*

*
*
*
*
(d) * * *
(6) Identity, law enforcement, or
security investigations or examinations.
(i) The Board shall not issue a decision
affirming or granting to an alien an
immigration status, relief or protection
from removal, or other immigration
benefit, as provided in 8 CFR
1003.47(b), that requires completion of
identity, law enforcement, or security
investigations or examinations if:
(A) Identity, law enforcement, or
security investigations or examinations
have not been completed during the
proceedings;
(B) DHS reports to the Board that the
results of prior identity, law
enforcement, or security investigations
or examinations are no longer current
under the standards established by DHS
and must be updated; or
(C) Identity, law enforcement, or
security investigations or examinations
have uncovered new information
bearing on the merits of the alien’s
application for relief.
(ii) Except as provided in paragraph
(d)(6)(iv) of this section, if identity, law
enforcement, or security investigations
or examinations have not been
completed or DHS reports that the
results of prior investigations or
examinations are no longer current
under the standards established by DHS,
then the Board will determine the best
means to facilitate the final disposition
of the case, as follows:
(A) The Board may issue an order
remanding the case to the immigration
judge with instructions to allow DHS to
complete or update the appropriate
identity, law enforcement, or security
investigations or examinations pursuant
to § 1003.47; or
(B) The Board may provide notice to
both parties that in order to complete
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Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations
adjudication of the appeal the case is
being placed on hold until such time as
all identity, law enforcement, or
security investigations or examinations
are completed or updated and the
results have been reported to the Board.
(iii) In any case placed on hold under
paragraph (d)(6)(ii)(B) of this section,
DHS shall report to the Board promptly
when the identity, law enforcement, or
security investigations or examinations
have been completed or updated. If DHS
obtains relevant information as a result
of the identity, law enforcement, or
security investigations or examinations,
or if the applicant fails to comply with
necessary procedures for collecting
biometrics or other biographical
information, DHS may move to remand
the record to the immigration judge for
consideration of whether, in view of the
new information or the alien’s failure to
comply, the immigration relief should
be denied, either on grounds of
eligibility or, where applicable, as a
matter of discretion.
(iv) The Board is not required to
remand or hold a case pursuant to
paragraph (d)(6)(ii) of this paragraph if
the Board decides to dismiss the
respondent’s appeal or deny the relief
sought.
(v) The immigration relief described
in 8 CFR 1003.47(b) and granted by the
Board shall take effect as provided in 8
CFR 1003.47(i).
(e) * * *
(8) * * *
(i) Except in exigent circumstances as
determined by the Chairman, or as
provided in paragraph (d)(6) of this
section, the Board shall dispose of all
appeals assigned to a single Board
member within 90 days of completion of
the record on appeal, or within 180 days
after an appeal is assigned to a threemember panel (including any additional
opinion by a member of the panel).
*
*
*
*
*
■ 3. Paragraph (e) of § 1003.19 is revised
to read as follows:
§ 1003.19

Custody/bond.

*

*
*
*
*
(e) After an initial bond
redetermination, an alien’s request for a
subsequent bond redetermination shall
be made in writing and shall be
considered only upon a showing that
the alien’s circumstances have changed
materially since the prior bond
redetermination.
*
*
*
*
*
■ 4. Section 1003.47 is added to read as
follows:

§ 1003.47 Identity, law enforcement, or
security investigations or examinations
relating to applications for immigration
relief, protection, or restriction on removal.

(a) In general. The procedures of this
section are applicable to any application
for immigration relief, protection, or
restriction on removal that is subject to
the conduct of identity, law
enforcement, or security investigations
or examinations as described in
paragraph (b) of this section, in order to
ensure that DHS has completed the
appropriate identity, law enforcement,
or security investigations or
examinations before the adjudication of
the application.
(b) Covered applications. The
requirements of this section apply to the
granting of any form of immigration
relief in immigration proceedings which
permits the alien to reside in the United
States, including but not limited to the
following forms of relief, protection, or
restriction on removal to the extent they
are within the authority of an
immigration judge or the Board to grant:
(1) Asylum under section 208 of the
Act.
(2) Adjustment of status to that of a
lawful permanent resident under
sections 209 or 245 of the Act, or any
other provision of law.
(3) Waiver of inadmissibility or
deportability under sections 209(c), 212,
or 237 of the Act, or any provision of
law.
(4) Permanent resident status on a
conditional basis or removal of the
conditional basis of permanent resident
status under sections 216 or 216A of the
Act, or any other provision of law.
(5) Cancellation of removal or
suspension of deportation under section
240A or former section 244 of the Act,
or any other provision of law.
(6) Relief from removal under former
section 212(c) of the Act.
(7) Withholding of removal under
section 241(b)(3) of the Act or under the
Convention Against Torture.
(8) Registry under section 249 of the
Act.
(9) Conditional grants relating to the
above, such as for applications seeking
asylum pursuant to section 207(a)(5) of
the Act or cancellation of removal in
light of section 240A(e) of the Act.
(c) Completion of applications for
immigration relief, protection, or
restriction on removal. Failure to file
necessary documentation and comply
with the requirements to provide
biometrics and other biographical
information in conformity with the
applicable regulations, the instructions
to the applications, the biometrics
notice, and instructions provided by
DHS, within the time allowed by the

immigration judge’s order, constitutes
abandonment of the application and the
immigration judge may enter an
appropriate order dismissing the
application unless the applicant
demonstrates that such failure was the
result of good cause. Nothing in this
section shall be construed to affect the
provisions in 8 CFR 1208.4 regarding
the timely filing of asylum applications
or the determination of a respondent’s
compliance with any other deadline for
initial filing of an application, including
the consequences of filing under the
Child Status Protection Act.
(d) Biometrics and other biographical
information. At any hearing at which a
respondent expresses an intention to file
or files an application for relief for
which identity, law enforcement, or
security investigations or examinations
are required under this section, unless
DHS advises the immigration judge that
such information is unnecessary in the
particular case, DHS shall notify the
respondent of the need to provide
biometrics and other biographical
information and shall provide a
biometrics notice and instructions to the
respondent for such procedures. The
immigration judge shall specify for the
record when the respondent receives the
biometrics notice and instructions and
the consequences for failing to comply
with the requirements of this section.
Whenever required by DHS, the
applicant shall make arrangements with
an office of DHS to provide biometrics
and other biographical information
(including for any other person covered
by the same application who is required
to provide biometrics and other
biographical information) before or as
soon as practicable after the filing of the
application for relief in the immigration
proceedings. Failure to provide
biometrics or other biographical
information of the applicant or any
other covered individual within the
time allowed will constitute
abandonment of the application or of
the other covered individual’s
participation unless the applicant
demonstrates that such failure was the
result of good cause. DHS is responsible
for obtaining biometrics and other
biographical information with respect to
any alien in detention.
(e) Conduct of investigations or
examinations. DHS shall endeavor to
initiate all relevant identity, law
enforcement, or security investigations
or examinations concerning the alien or
beneficiaries promptly, to complete
those investigations or examinations as
promptly as is practicable (considering,
among other things, increased demands
placed upon such investigations), and to
advise the immigration judge of the
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results in a timely manner, on or before
the date of a scheduled hearing on any
application for immigration relief filed
in the proceedings. The immigration
judges, in scheduling hearings, shall
allow a period of time for DHS to
undertake the necessary identity, law
enforcement, or security investigations
or examinations prior to the date that an
application is scheduled for hearing and
disposition, with a view to minimizing
the number of cases in which hearings
must be continued.
(f) Continuance for completion of
investigations or examinations. If DHS
has not reported on the completion and
results of all relevant identity, law
enforcement, or security investigations
or examinations for an applicant and his
or her beneficiaries by the date that the
application is scheduled for hearing and
disposition, after the time allowed by
the immigration judge pursuant to
paragraph (e) of this section, the
immigration judge may continue
proceedings for the purpose of
completing the investigations or
examinations, or hear the case on the
merits. DHS shall attempt to give
reasonable notice to the immigration
judge of the fact that all relevant
identity, law enforcement, or security
investigations or examinations have not
been completed and the amount of time
DHS anticipates is required to complete
those investigations or examinations.
(g) Adjudication after completion of
investigations or examinations. In no
case shall an immigration judge grant an
application for immigration relief that is
subject to the conduct of identity, law
enforcement, or security investigations
or examinations under this section until
after DHS has reported to the
immigration judge that the appropriate
investigations or examinations have
been completed and are current as
provided in this section and DHS has
reported any relevant information from
the investigations or examinations to the
immigration judge.
(h) Adjudication upon remand from
the Board. In any case remanded
pursuant to 8 CFR 1003.1(d)(6), the
immigration judge shall consider the
results of the identity, law enforcement,
or security investigations or
examinations subject to the provisions
of this section. If new information is
presented, the immigration judge may
hold a further hearing if necessary to
consider any legal or factual issues,
including issues relating to credibility,
if relevant. The immigration judge shall
then enter an order granting or denying
the immigration relief sought.
(i) Procedures when immigration
relief granted. At the time that the
immigration judge or the Board grants

any relief under this section that would
entitle the respondent to a new
document evidencing such relief, the
decision granting such relief shall
include advice that the respondent will
need to contact an appropriate office of
DHS. Information concerning DHS
locations and local procedures for
document preparation shall be routinely
provided to EOIR and updated by DHS.
Upon respondent’s presentation of a
final order from the immigration judge
or the Board granting such relief and
submission of any biometric and other
information necessary, DHS shall
prepare such documents in keeping
with section 264 of the Act and
regulations thereunder and other
relevant law.
(j) Voluntary departure. The
procedures of this section do not apply
to the granting of voluntary departure
prior to the conclusion of proceedings
pursuant to 8 CFR 1240.26(b) or at the
conclusion of proceedings pursuant to 8
CFR 1240.26(c). If DHS seeks a
continuance in order to complete
pending identity, law enforcement, or
security investigations or examinations,
the immigration judge may grant
additional time in the exercise of
discretion, and the 30-day period for the
immigration judge to grant voluntary
departure, as provided in
§ 1240.26(b)(1)(ii), shall be extended
accordingly.
(k) Custody hearings. The foregoing
provisions of this section do not apply
to proceedings seeking the
redetermination of conditions of
custody of an alien during the pendency
of immigration proceedings under
section 236 of the Act. In scheduling an
initial custody redetermination hearing,
the immigration judge shall, to the
extent practicable consistent with the
expedited nature of such cases, take
account of the brief initial period of
time needed for DHS to conduct the
automated portions of its identity, law
enforcement, or security investigations
or examinations with respect to aliens
detained in connection with
immigration proceedings. If at the time
of the custody hearing DHS seeks a brief
continuance in an appropriate case
based on unresolved identity, law
enforcement, or security investigations
or examinations, the immigration judge
in the exercise of discretion may grant
one or more continuances for a limited
period of time which is reasonable
under the circumstances.

PART 1208—PROCEDURES FOR
ASYLUM AND WITHHOLDING OF
REMOVAL
5. The authority citation for part 1208
is revised to read as follows:

■

Authority: 8 U.S.C. 1103, 1158, 1225, 1231,
1282.

6. Section 1208.4 is amended by
adding two new sentences at the end of
paragraph (a)(2)(ii), to read as follows:

■

§ 1208.4

Filing the application.

*

*
*
*
*
(a) * * *
(2) * * *
(ii) * * * The failure to have
provided required biometrics and other
biographical information does not
prevent the ‘‘filing’’ of an asylum
application for purposes of the one-year
filing rule of section 208(a)(2)(B) of the
Act. See 8 CFR 1003.47.
*
*
*
*
*
■ 7. Section 1208.10 is revised to read as
follows:
§ 1208.10 Failure to appear at a scheduled
hearing before an immigration judge; failure
to follow requirements for biometrics and
other biographical information processing.

Failure to appear for a scheduled
immigration hearing without prior
authorization may result in dismissal of
the application and the entry of an order
of deportation or removal in absentia.
Failure to comply with processing
requirements for biometrics and other
biographical information within the
time allowed will result in dismissal of
the application, unless the applicant
demonstrates that such failure was the
result of good cause. DHS is responsible
for obtaining biometrics and other
biographical information with respect to
any alien in custody.
■ 8. Section 1208.14 is amended by
adding a new sentence at the end of
paragraph (a) to read as follows:
§ 1208.14 Approval, denial, referral, or
dismissal of application.

(a) * * * In no case shall an
immigration judge grant asylum without
compliance with the requirements of
§ 1003.47 concerning identity, law
enforcement, or security investigations
or examinations.
*
*
*
*
*
Dated: January 26, 2005.
John Ashcroft,
Attorney General.
[FR Doc. 05–1782 Filed 1–27–05; 12:33 pm]
BILLING CODE 4410–30–P

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Office of the Principal Legal Advisor
_________________________________________________________________
Training Division
ICE Virtual University Mandatory Trainings 2010
Description
A Culture of Privacy Awareness
ICE Ethics Orientation
Information Assurance Awareness Training
Integrity Awareness Program Training
No FEAR Act
Prevention of Sexual Harassment
Records Management Awareness Training
Violence Against Women Act

2010FOIA4519.000087

Department Subcomponents and
Agencies
•
•
•

Department Components
Office of the Secretary
Advisory Panels and Committees

Homeland Security leverages resources within federal, state, and local governments,
coordinating the transition of multiple agencies and programs into a single, integrated
agency focused on protecting the American people and their homeland. More than 87,000
different governmental jurisdictions at the federal, state, and local level have homeland
security responsibilities. The comprehensive national strategy seeks to develop a
complementary system connecting all levels of government without duplicating effort.
Homeland Security is truly a “national mission.”
The following list contains the major components that currently make up the Department
of Homeland Security.

Department Components
The Directorate for National Protection and Programs works to advance the Department's
risk-reduction mission. Reducing risk requires an integrated approach that encompasses
both physical and virtual threats and their associated human elements.
The Directorate for Science and Technology is the primary research and development
arm of the Department. It provides federal, state and local officials with the technology
and capabilities to protect the homeland.
The Directorate for Management is responsible for Department budgets and
appropriations, expenditure of funds, accounting and finance, procurement; human
resources, information technology systems, facilities and equipment, and the
identification and tracking of performance measurements.
The Office of Policy is the primary policy formulation and coordination component for
the Department of Homeland Security. It provides a centralized, coordinated focus to the
development of Department-wide, long-range planning to protect the United States.
The Office of Health Affairs coordinates all medical activities of the Department of
Homeland Security to ensure appropriate preparation for and response to incidents having
medical significance.
The Office of Intelligence and Analysis is responsible for using information and
intelligence from multiple sources to identify and assess current and future threats to the
United States.

2010FOIA4519.000088

The Office of Operations Coordination is responsible for monitoring the security of the
United States on a daily basis and coordinating activities within the Department and with
governors, Homeland Security Advisors, law enforcement partners, and critical
infrastructure operators in all 50 states and more than 50 major urban areas nationwide.
The Federal Law Enforcement Training Center provides career-long training to law
enforcement professionals to help them fulfill their responsibilities safely and
proficiently.
The Domestic Nuclear Detection Office works to enhance the nuclear detection efforts of
federal, state, territorial, tribal, and local governments, and the private sector and to
ensure a coordinated response to such threats.
The Transportation Security Administration (TSA) protects the nation's transportation
systems to ensure freedom of movement for people and commerce.
United States Customs and Border Protection (CBP) is responsible for protecting our
nation’s borders in order to prevent terrorists and terrorist weapons from entering the
United States, while facilitating the flow of legitimate trade and travel.
United States Citizenship and Immigration Services is responsible for the administration
of immigration and naturalization adjudication functions and establishing immigration
services policies and priorities.
United States Immigration and Customs Enforcement (ICE), the largest investigative
arm of the Department of Homeland Security, is responsible for identifying and shutting
down vulnerabilities in the nation’s border, economic, transportation and infrastructure
security.
The United States Coast Guard protects the public, the environment, and U.S. economic
interests—in the nation’s ports and waterways, along the coast, on international waters,
or in any maritime region as required to support national security.
The Federal Emergency Management (FEMA) prepares the nation for hazards, manages
Federal response and recovery efforts following any national incident, and administers
the National Flood Insurance Program.
The United States Secret Service protects the President and other high-level officials and
investigates counterfeiting and other financial crimes, including financial institution
fraud, identity theft, computer fraud; and computer-based attacks on our nation’s
financial, banking, and telecommunications infrastructure.

Office of the Secretary
The Office of the Secretary oversees activities with other federal, state, local, and private
entities as part of a collaborative effort to strengthen our borders, provide for intelligence

2010FOIA4519.000089

analysis and infrastructure protection, improve the use of science and technology to
counter weapons of mass destruction, and to create a comprehensive response and
recovery system. The Office of the Secretary includes multiple offices that contribute to
the overall Homeland Security mission.
The Privacy Office works to minimize the impact on the individual’s privacy, particularly
the individual’s personal information and dignity, while achieving the mission of the
Department of Homeland Security.
The office for Civil Rights and Civil Liberties provides legal and policy advice to
Department leadership on civil rights and civil liberties issues, investigates and resolves
complaints, and provides leadership to Equal Employment Opportunity Programs.
The Office of Inspector General is responsible for conducting and supervising audits,
investigations, and inspections relating to the programs and operations of the Department,
recommending ways for the Department to carry out its responsibilities in the most
effective, efficient, and economical manner possible.
The Citizenship and Immigration Services Ombudsman provides recommendations for
resolving individual and employer problems with the United States Citizenship and
Immigration Services in order to ensure national security and the integrity of the legal
immigration system, increase efficiencies in administering citizenship and immigration
services, and improve customer service.
The Office of Legislative Affairs serves as primary liaison to members of Congress and
their staffs, the White House and Executive Branch, and to other federal agencies and
governmental entities that have roles in assuring national security.
Office of the General Counsel

Office of Counternarcotics Enforcement
Office of Public Affairs
Executive Secretariat
Military Advisor's Office

Advisory Panels and Committees
The Homeland Security Advisory Council provides advice and recommendations to the
Secretary on matters related to homeland security. The Council is comprised of leaders
from state and local government, first responder communities, the private sector, and
academia.

2010FOIA4519.000090

The National Infrastructure Advisory Council provides advice to the Secretary of
Homeland Security and the President on the security of information systems for the
public and private institutions that constitute the critical infrastructure of our nation’s
economy.
The Homeland Security Science and Technology Advisory Committee. Serves as a
source of independent, scientific and technical planning advice for the Under Secretary
for Science and Technology.
The Critical Infrastructure Partnership Advisory Council was established to facilitate
effective coordination between Federal infrastructure protection programs with the
infrastructure protection activities of the private sector and of state, local, territorial and
tribal governments.
The Interagency Coordinating Council on Emergency Preparedness and Individuals with
Disabilities was established to ensure that the federal government appropriately supports
safety and security for individuals with disabilities in disaster situations.

2010FOIA4519.000091

U.S. Immigration and Customs Enforcement

Customs Law Outline
(Border Search Authority, Search and Seizure, Etc.)

2010FOIA4519.000092

Table of Contents
Interim Performance Objectives ................................................................................3
Fourth Amendment Seizures......................................................................................9
Fourth Amendment Searches...................................................................................11
Search and Seizure Requirements............................................................................15
Border Authority ......................................................................................................21
Maritime Enforcement Rules...................................................................................29
Title 21 – Controlled Substances Act (CSA) and Controlled Substances
Import/Export Act ....................................................................................................33
Maritime Drug Law Enforcement Act (46 U.S.C. App. §§ 1901-1904).................35
Aviation Smuggling (19 U.S.C. § 1590) .................................................................37
Suspect's Rights........................................................................................................39
Bank Secrecy Act – 31 U.S.C. §§ 5312-5332 .........................................................43
Money Laundering Control Act...............................................................................47
The Right To Financial Privacy Act - 12 U.S.C. §§ 3401-3422..............................53
Fair Credit Reporting Act - 15 U.S.C. § 1681 .........................................................57
Documentary Materials in Hands of Disinterested Third Party (Privacy Protection
Act -- 42 U.S.C. §§ 2000aa, 2000aa-5 to 2000aa-7, 2000aa-11, 2000aa-12)..........59
Asset Removal .........................................................................................................61
Criminal Fraud .........................................................................................................65
Customs Civil Fraud Under 19 U.S.C. § 1592 ........................................................67
Customs Civil Drawback Fraud - 19 U.S.C. § 1593a..............................................73
Examination/Summons Authority - 19 U.S.C. §§ 1508-1510.................................75
Personal Lawsuits……………..…………………………………………………..78
1
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Interim Performance Objectives
Upon completion of the following blocks of instruction the student will be able to:
(Note, “§” refers to the section of the Law Course for Customs and Border Protection Officers
that addresses a given IPO.)
1. Identify the scope of a lawful "stop" and the suspicion necessary for a "stop" to be
constitutionally reasonable. § 2.212b
2. Identify the level of suspicion necessary to seize prohibited merchandise for forfeiture.
§ 2.223
3. Identify the requirements for a lawful plain view seizure. § 2.520
4. Identify the circumstances under which a reasonable expectation of privacy is re-established
following a lawful search. § 2.332d
5. Identify the requirements for the search of a mobile conveyance. § 2.540
6. Identify the requirements for a lawful search incident to arrest. § 2.610
7. Identify the requirements for a lawful frisk. § 2.630
8. Identify the circumstances under which a government employee’s workspace can be searched
without a warrant. § 2.662
9. Identify the circumstances that are the functional equivalent to the border inbound and
outbound. §§ 3.232-3.233d
10. Identify the circumstances that constitute the extended border. § 3.234
11. Identify the circumstances under which 19 U.S.C. § 1595(b) authorizes a Customs officer to
go upon the buildings and lands of another. § 3.1000
12. Identify what building or place may never be searched under the border search exception to
the probable cause requirement of the Fourth Amendment. § 3.1000
13. Identify the point at which an AUSA must be notified of a border detention for personal
search. § 3.610
14. Select the circumstances under which the government of a detained foreign national must be
notified of the detention. § 5.300

3
2010FOIA4519.000095

15. Identify the correct procedure to follow when confronted with a claim of diplomatic
immunity while executing your lawful duties as a Customs officer. § 4.200
16. Identify the conditions necessary to read correspondence. § 3.810
17. Identify the conditions necessary to copy and/or seize documents and papers. § 3.810
18. Identify what type of documents should never be subject to a valid claim of attorney-client
privilege during a border search. § 3.820
19. Identify the correct procedure to follow when making or receiving a request for assistance to
or from a member of the intelligence community. § 3.1440
20. Identify the effective (constitutional) scope of the boarding and search authority conveyed by
19 U.S.C. § 1581. § 18.410
21. Identify the scope of Customs boarding and search authority with respect to vessels in inland
waters and the territorial sea of the United States. § 18.414
22. Identify the scope of Customs boarding and search authority with respect to vessels on the
high seas. § 18.415
23. Identify that portion of the Comprehensive Drug Abuse Prevention and Control Act for
which the U.S. Customs Service is responsible. § 10.000
24. Identify the evidentiary objectives with respect to each element of a Controlled Substances
Act (CSA) violation. § 10.100
25. Select from varying fact patterns those facts that establish a particular Controlled Substances
Act (CSA) violation. § 10.100
26. Select from various factual settings those acts that constitute a violation of the Maritime
Drug Law Enforcement Act, 46 U.S.C. § 1901-1904. § 18.510
27. Identify the elements constituting a violation of 19 U.S.C. § 1590 (Aviation Smuggling), not
involving a sea transfer. § 18.521
28. Identify the elements constituting a violation of 19 U.S.C. § 1590 (Aviation Smuggling),
involving a sea transfer. § 18.521
29. Identify the minimum factual circumstances which will support a forfeiture of aircraft or
vessels pursuant to 19 U.S.C. §1590, (Aviation Smuggling). § 18.523
30. Identify the conditions under which Miranda warnings are required. § 6.000
31. Identify the conditions that create “custody” for Miranda purposes. § 6.200
4
2010FOIA4519.000096

32. Identify those circumstances in which either words or actions may constitute "interrogation"
under Miranda. § 6.300
33. Identify the evidentiary value of voluntary statements made by a person in “custody” for
Miranda purposes. § 6.110
34. Identify the conditions under which an officer may re-initiate contact with a person in
"custody" who has invoked his right to counsel. § 6.520
35. Identify those classes of financial instruments which are defined as "monetary instruments"
under the Currency and Foreign Transactions Reporting Act. §§ 7.210-7.215c
36. Identify the circumstances which constitute transporting monetary instruments "at one time."
§ 7.250
37. Identify the point at which a person must file a report when monetary instruments are
exported. § 7.280
38. Identify various circumstances that create liability for a failure to file a CMIR. § 7.260
39. Given a factual scenario, identify the essential elements of proof necessary to establish a
money laundering offense involving financial transactions to promote unlawful activity. §§
9.220-9.224a
40. Given a factual scenario, identify the essential elements of proof necessary to establish a
money laundering offense involving financial transactions to conceal some aspect of
proceeds from unlawful activities. §§ 9.220-9.224b
41. Given a factual scenario, identify the essential elements of proof necessary to establish a
money laundering offense involving financial transactions to avoid a state or federal
reporting requirement. §§ 9.220-9.224c
42. Given a factual scenario, identify the essential elements of proof necessary to establish a
money laundering offense involving transportation of funds in or out of the US. §9.240
43. Given a factual scenario, identify the essential elements of proof necessary to establish a
money laundering offense involving a government “sting” operation. § 9.250
44. Given a factual scenario, identify the essential elements of proof necessary to establish a
money laundering offense involving monetary transactions at a financial institution. §9.260
45. Identify what entities are not “customers” for purposes of the Right to Financial Privacy Act
of 1978. § 13.210
46. Identify the methods by which financial records of a customer may be obtained under the
Right to Financial Privacy Act. §§ 13.300-13.350, 13.810
5
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47. Identify the lawful means of obtaining access to credit reports under the Fair Credit
Reporting Act. § 8.450
48. Identify the procedure to be followed in order to seize documentary evidence from a third
party engaged in public communications. § 14.500
49. Identify the extent to which the Exclusionary Rule applies in civil forfeitures. § 15.146
50. Identify the quantum of proof necessary to institute a forfeiture proceeding. §§ 15.130,
15.251a
51. Identify the quantum of proof necessary to sustain a judicial forfeiture. § 15.252
52. Select from a factual setting which property may be forfeited by administrative forfeiture
proceedings. § 15.240
53. Select from a factual setting property that must be forfeited by judicial forfeiture
proceedings. § 15.250
54. Identify the objectives to be met in a Petition for Remission/Mitigation investigation. §
15.152
55. Identify the significance of a defendant’s criminal conviction in a criminal forfeiture
proceeding. § 15.610
56. Identify the elements that constitute a violation of 18 U.S.C. § 542, Entry of Goods by False
Statement. § 8.112
57. Given varying factual settings, select the facts that exemplify a violation of 18 U.S.C. § 542.
§ 8.112
58. Identify the point at which merchandise has been entered or introduced into the commerce of
the United States. §§ 8.112a(1), 8.112a(3)
59. Identify the difference between "smuggled" or "clandestinely introduced" and "import" or
"brings into" as those terms are used in 18 U.S.C. § 545. §§ 8.113a, 8.113c
60. Given varying factual settings, select the facts that exemplify a violation of 18 U.S.C. 545.
§ 8.113
61. Identify the definition of civil fraud under 19 U.S.C. § 1592. § 8.210
62. Identify the circumstances that establish the "prior disclosure" defense to a civil penalty
action. § 8.250

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63. Identify the applicable burden of proof for the government to establish each level of
culpability in a 19 U.S.C. § 1592 action. §§ 8.213b-8.213d
64. Identify the appropriate limitation of action periods for negligent and fraudulent violations of
19 U.S.C. § 1592. § 8.270
65. Select from a list that which would constitute reasonable notice for the giving of testimony or
producing records pursuant to issuance of a Customs summons. § 8.422c
66. Identify who may authorize and cause to be issued a Customs summons. § 8.422f(1)
67. Select from a list those persons regarded as recordkeepers for purposes of the recordkeeping
requirements of 19 U.S.C. § 1508. § 8.421
68. Select from a list those persons classified as "third-party record keepers" within the meaning
the 19 U.S.C. § 1509. §§ 8.423, 8.423b(1)

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I.

Fourth Amendment Seizures
“The right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be violated, …”
A. Seizure of Objects

Government

Interference

With a Possessory
Right

1. Temporary seizure of object with no suspicion
a. Initial border detention of object to search for merchandise
2. Temporary seizure of object with reasonable suspicion
a. “Investigative detention” is a temporary seizure of an object to
investigate suspicion of criminal activity
b. Scope: Brief investigative inquiry, officer must act with diligence to
confirm or dispel suspicion of criminal activity
c. If the officer develops probable cause that the object is contraband or
evidence of a crime, the object may be permanently seized; if the
officer does not develop probable cause, the object is returned
3. Permanent seizure of object with probable cause
a. Permanent seizure of object for forfeiture or use as evidence at trial
B. Seizure of Persons

Government

Interference with
Freedom of Movement

Reasonable Person Would
NOT Feel Free to Leave

1. Temporary seizure of person with no suspicion
a. Initial border detention
b. Fixed vehicle checkpoints – BP and DUI

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2. Temporary seizure of person with reasonable suspicion
a. “Investigative detention” (sometimes called a “Terry stop”) is a
temporary seizure of a person to investigate suspicion of criminal
activity
b. Reasonable suspicion of criminal activity required
c. Scope: brief investigative inquiry, officer must act with diligence to
confirm or dispel suspicion of criminal activity
1) Brief = officer must act with due diligence
2) Investigative = purpose is to confirm or dispel suspicion of
criminal activity
3) Inquiry = ask questions, no inherent authority to search
d. Officer may perform a “frisk” during an investigative detention only if
there is reasonable suspicion that the suspect is armed/dangerous
3. Permanent seizure of person with probable cause:
a. Arrest
b. Any seizure of a person that exceeds the limits of a “stop” is
considered an arrest

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2010FOIA4519.000102

II.

Fourth Amendment Searches
“The right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be violated, …”
A. Search – Defined

Government

Intrusion

Reasonable Expectation of
Privacy

1. Government
a. Government officer
b. Any person acting at the direction of a government officer
2. Intrusion
a. Physical
b. Visual
c. Auditory
3. Reasonable Expectation of Privacy (“REP”)
a. A subjective expectation of privacy that is
b. Objectively reasonable (i.e., an expectation of privacy that society is
prepared to recognized as legitimate under the circumstances)
4. Circumstances where there is no REP (thus, government intrusion in these
circumstances is not a 4th Amendment search):
a. Open fields
1) Label used to describe area where there is no REP from
physical intrusion (i.e. it is not reasonable to expect that other
people will refrain from entering the area)
2) Example: large field on a farm; open parking lot in industrial
complex
b. Open view
1) Don’t confuse with the term “plain view,” which is a seizure
authority
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2010FOIA4519.000103

2) Label used to described area where there is no REP from visual
intrusion (i.e. it is not reasonable to expect that other people
will refrain from looking into the area)
3) Example: item sitting in picture window of home with no
shades
c. Overheard conversation
1) Label used to describe conversation where there is no REP
from auditory intrusion (i.e. it is not reasonable to expect that
other people will refrain from listening to the conversation)
2) Applies to any conversation overheard by someone with an
“unaided ear,” if the listener is in a place where she is allowed
to be (including all public places)
3) Example: off duty officer overhears a conversation between
two criminals talking in low voices in a booth at a diner
d. Abandoned property
1) Property is “abandoned” when a person with REP in an object
voluntarily discards or disavows her interest in the object and
signifies there is no longer any SUBJECTIVE expectation of
privacy
2) Abandonment must be voluntary (if property is discarded in
response to a law enforcement officer’s lawful conduct, then
the discarded item will be considered voluntarily abandoned)
3) Lost property is not abandoned property
4) Examples:
a) Trash placed at the curb for collection
b) “That’s not my suitcase” scenario
e. Things previously lawfully searched – earlier private search, border
search, etc.
1) the REP in an area or a container is eliminated once it has been
lawfully searched, so a subsequent intrusion by the
Government will not be a search if –
12
2010FOIA4519.000104

a) the scope of the subsequent intrusion does not exceed
the scope of the earlier search, and
b) there is a substantial likelihood that the area or contents
of the container have not changed since the earlier
search. Visual or electronic surveillance of the area or
container may establish the substantial likelihood of no
change.
5. 4th Amendment Search Analysis – Focus on the existence of REP, if any, not
Technology used to overcome it
a. For example – Use of a thermal imager to obtain information
concerning the interior of a home not otherwise observable constituted
a search – United States v. Kyllo, 533 U.S. 27 (2001)

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III. Search and Seizure Requirements
“… and no warrants shall issue, but upon probable cause, supported by oath or
affirmation, …”
Once we determine that a law enforcement officer’s conduct was either a search
or a seizure, we must then decide whether the officer’s search/seizure was
reasonable (i.e. complies with the Fourth Amendment).
A. GENERAL RULE: SEARCHES OR SEIZURES MUST BE CONDUCTED WITH
A WARRANT SUPPORTED BY PROBABLE CAUSE (P.C.).
B. EXCEPTIONS: Certain searches and seizures may be constitutionally reasonable
even when conducted without a warrant or probable cause.
C. Exceptions to the Warrant Requirement – (P.C. Required)
1. Arrest in a Public Location:
a. Person to be arrested is located in public or another location to which
the officer has lawful access
b. Officer has probable cause to believe that the person has committed or
is committing a crime
c. Title 19 vs. Title 8 Arrest Authority—
1) 19 U.S.C. § 1589a:
a) make an arrest without a warrant for any offense
[felony or misdemeanor] against the United States
committed in the officer’s presence, or
b) for a Federal felony committed outside the officer’s
presence if the officer has reasonable grounds [P.C.]
that the person to be arrested has committed or is
committing a felony
2) 8 U.S.C. § 1357(a)(5) same authority as above except the
officer must be performing duties relating to the enforcement
of immigration laws at the time of the arrest and there is a
likelihood of the person escaping before a warrant can be
obtained for his arrest.
2. Plain View or Touch Seizure:

15
2010FOIA4519.000107

a. Officer has lawful OBSERVATION of, or CONTACT with an object
b. Officer has lawful ACCESS to the object
c. Probable Cause to seize the object is immediately apparent
3. Exigent Circumstances
a.

People = “Hot Pursuit”
1) Officer has Probable Cause to Arrest suspect for a Serious
Crime, i.e., a felony
2) Attempts Arrest, but
3) Suspect Flees and
4) Officer generally has continuous knowledge of suspect’s
whereabouts and in particular, P.C. to believe that suspect is in
a specific premises

b. Object = “Search to Prevent Imminent Destruction or Removal of
Evidence”
1) Probable Cause to Believe Seizable Property Within
2) Probable Cause to Believe It is About to Be Destroyed or
Removed
c. Imminent Loss of Life or Property = “Emergency Search”
1) Basis – reasonable belief [P.C.] that a “bona fide” emergency
exists, i.e., potential loss of life or property
2) Scope – limited to resolving the emergency. Once the
emergency has passed, officers must withdraw and obtain a
warrant or meet the criteria for another of the exceptions to the
4th Amendment’s Warrant and Probable Cause requirements to
search further
4. Mobile Conveyance:
a. Officer has probable cause to believe that seizable property is located
in the conveyance
b. The conveyance is readily mobile

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D. Exceptions to the Probable Cause requirement (Reasonable Suspicion (R.S.) is
required in some instances)
1. Search Incident to Arrest (SIA): (R.S. required for “Strip Search” only)
a. Purpose: To prevent arrestee’s access to weapons or
destruction/concealment of evidence
b. Scope
1) No suspicion required to search:
a) Exterior of arrestee’s clothing;
b) Objects carried by arrestee;
c) Area within arrestee’s immediate control (includes the
passenger compartment of a vehicle and any locked or
unlocked containers therein)
d) Closets and Other Spaces Immediately Adjoining Place
of Arrest from Which an Attack Could Be Immediately
Launched may be searched for People, Not Weapons or
Evidence
2) Reasonable suspicion that weapons or evidence are hidden
underneath clothing is required to perform a strip search during
SIA
2. Consent:
a. Consent must be voluntary – person made a free choice among lawful
options and chose to agree to the search or encounter
1) Voluntariness measured based on “totality of the
circumstances”
2) The following are factors to be considered among the totality
of circumstances (but no single factor is an absolute
requirement):
a) Knowledge of right to refuse;
b) Written consent
c) Presence of witnesses
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2010FOIA4519.000109

d) Age and sophistication of the person giving consent
3) “Tough choice” made from lawful options is voluntary
4) Choice made in response to coercion, inducement or trick is
not voluntary
b. Authority – who may consent to a search?
1) Actual = Person with REP in thing/place to be searched; or
2) Apparent = Person who appears to have REP in the thing to be
searched
3) Joint control issues?
c. Scope: limited to terms of consent
d. Revocation – consent can be revoked at any time
3. Frisk/Protective Sweep: (R.S. required)
a. Frisk of a Person - Reasonable Suspicion of Criminal Activity AND
Reasonable Suspicion Person is Armed and Dangerous
b. Protective Sweep of a Place - Reasonable Suspicion Someone Within
Poses Threat to Officer(s) Who are Lawfully Present
c. Purpose - Neutralize Danger/Threat
1) Frisk – weapons only
2) Places – people only
d. Scope - Limited To Purpose
4. Inventory:
a. Purpose
1) Protect owner from loss/theft of valuables from lawfully
impounded property
2) Protect agency from allegations of loss/theft of valuables from
lawfully impounded property
3) Protect agency from hazardous materials in lawfully
impounded property
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2010FOIA4519.000110

b. Scope – Search must comport with Agency inventory search policy.
5. Regulatory Searches – Government Licensed or Regulated Activities
a. Vessel Document Check – 19 U.S.C. § 1581
b. Inspections of Foreign Trade Zones – 19 C.F.R. §§ 146.3, 146.10
c. TSA Airport Security Searches – 49 U.S.C. §§ 44901(c)-(e)
6. Administrative Searches – Search of a Government Employee’s Workplace
(R.S. required)
a. Purpose - Efficient Administration of the Public Workplace
b. Basis
1) Noninvestigatory work-related purpose such as to retrieve a
file, or
2) Confirm or deny work-related misfeasance - O'Conner v.
Ortega, 480 U.S. 709 (1987).
a) Misfeasance = the doing of a lawful thing in an
improper manner
b) Malfeasance = the doing of a wrongful thing
c. Scope - Reasonable Suspicion Object Sought is in Particular Places
Searched.
7. Border Search
a. Purpose – protect nation’s borders, protect revenue, prohibit
importation or exportation of merchandise contrary to law
b. Scope of a border search is limited to search for merchandise at the
border

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E. Search and Seizure Flow Chart.

Is your Conduct an…
Interference with a Possessory Interest in an object?
Interference with a person’s Freedom of Movement who reasonably
believes he is not free to terminate the encounter?
Intrusion into a Reasonable Expectation of Privacy?
YES

NO

Not 4th
Amendment
Conduct

Warrant?
YES

NO

Probable Cause?
NO

YES

Exception to
Warrant
Requirement?
YES

NO

Exception to P.C.
Requirement?
YES

NO

Lawful Conduct

Unlawful Conduct

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2010FOIA4519.000112

IV.

Border Authority
A. Purpose for Exception
1. Protect Revenue
2. Prohibit importation or exportation of offending merchandise
3. National Security
B. Scope: Limited to purposes for exception
C. Requirements for Exception
1. “Customs Officer [19 U.S.C. §1401(i)]
a. Customs and Border Protection Officers and ICE Special Agents/
MEOs/AEOs
b. Coast Guard Petty Officers and above
c. Others Designated by Customs
Note: 19 U.S.C. §507 distinguished
2. Searching for Merchandise [19 U.S.C. §1401(c)]
a. Goods, wares, chattels of every description, including prohibited
merchandise and monetary instruments.
b. Correspondence is not Merchandise.
3. At the Border
a. Nation’s Border
1) Land Border- dividing lines between Mexico and United
States, and between Canada and the United States.
2) Sea Border- along the Atlantic and Pacific Coasts, the nation’s
sea border is 3 nautical miles from the low mean water mark;
along the coasts of Texas and Florida (Gulf of Mexico) the
nation’s sea border is 9 nautical miles from the low mean water
mark. The remaining Gulf Coast states, Alaska, Hawaii,
Puerto Rico, and the U.S. Virgin Islands recognize a 3 nautical

21
2010FOIA4519.000113

mile sea border. The Sea Border divides the Great Lakes in
half.
3) Air Border- Extends directly upward from the land or sea
border.
b. Functional Equivalent of the Border (FEB- Inbound)
1) Purpose: performing a border detention/search at the nation’s
border is not practical in most cases, so border search authority
may be exercised at places away from the nation’s border,
when those places function just like the border.
2) Elements of the FEB (Inbound)
a) Reasonable certainty that there has been a border nexus
i) The person or thing to be searched crossed the
border, or
ii) The person or thing to be searched had contact
with someone or something that crossed the
border.
b) Reasonable certainty there has been no material change
since nexus
i) The person or thing to be searched has not
changed since border nexus, and
ii) Any merchandise present now was present at
the time of border nexus (i.e. there has been no
opportunity to acquire domestic merchandise
since the border crossing).
c) First Practicable Detention Point- The first practicable
detention point is not necessarily the first possible
detention point
3) FEB Inbound examples
a) Port of Entry
b) Airports and Seaports
c) Mail Facilities
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2010FOIA4519.000114

d) Bonded Warehouses
c. Elements of the FEB (Outbound)
1) Reasonable certainty there will be border nexus
2) Reasonable certainty there will be no material change before
border nexus (i.e. any merchandise present at the time of the
search will be present at the time of crossing).
3) Last Practicable Detention Point before border nexus
d. Elements of the Extended Border- conducted at some point beyond the
FEB
1) Reasonable certainty there has been border nexus
2) Reasonable certainty there has been no material change since
border nexus
3) Reasonable Suspicion of criminal activity
e. Note: A DWELLING MAY NEVER BE SEARCHED UNDER
BORDER SEARCH AUTHORITY
f. 19 U.S.C. §1595(b)- Entry upon the buildings and lands of another
permitted, but never Dwellings, as long as it involves the discharge of
your official duties.
D. Border Search Procedures
1. Searching People
a. Searches involving people that are not Personal Searches- zero
suspicion required to search in these instances
1) Baggage, containers, things brought into the United States by
the person. [19 U.S.C. §§1496 and 1582]
2) Outer garments worn by the traveler, and
3) Contents of pockets (traveler agrees to remove contents).

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2010FOIA4519.000115

b. Personal Searches [See CBP’s Personal Search Handbook]
1) The Personal Search Handbook describes in great detail the
policies and rules that apply to any search of a person by a
Customs officer at the border
2) Six Types of Personal Searches- each Personal Search requires
some level of suspicion greater than zero suspicion
a) Immediate Patdown for Weapons
b) Patdown for Merchandise
c) Partial Body Search
d) X-Ray Examination
e) Body Cavity Search
f) Monitored Bowel Movement
3) Personal Search detention exceeding 2 hours- CBP will offer to
notify someone on the detainee’s behalf of the delay in
Customs processing. The name, relationship, and telephone
number of the person to be notified will be obtained, and
coordination with an ICE Agent will occur.
4) Personal Search detention exceeding 8 hoursa) ICE Agent must notify AUSA
b) If AUSA does not find reasonable suspicion for
continued detention, then the person will be released.
c) 8 hours begins upon supervisory approval for the
Patdown for Merchandise.
5) DOJ Guidelines
c. Juveniles
1) Policy is to allow an accompanying adult to be present during
Personal Search of juvenile, unless a reason to exclude the
adult exists.

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2010FOIA4519.000116

2) Coordination with the U.S. Attorney’s Office regarding
arrest/disposition. [18 U.S.C. §5031-5042].
d. Foreign Nationals- Arrest or detention at medical facility
1) Customs Officer must advise detainee of right to have
detainee’s consular official notified of arrest or detention
2) If detainee requests notification, the officer notifies consular
official
3) If detainee declines, the Customs Officer must determine if
detainee’s home country is a treaty country.
e. Diplomats
1) Persons
2) Diplomatic Bag (pouch)
3) Consular Bag (pouch)
4) Personal luggage
5) Tactical Considerations
2. Searching Objects
a. Border Search of an object requires zero suspicion
1) 19 U.S.C. §1496- authorizes the search of baggage entered by
traveler
2) 19 U.S.C. §1582- authorizes the implementation of regulations
concerning baggage searches
3) 19 U.S.C. §1499- allows examination of merchandise entering
the US
4) 19 U.S.C. §482- allows examination of vessels and vehicles;
authorizes seizure
5) 19 U.S.C. §1581- allows non-destructive searches of vessels or
vehicles to do document check

25
2010FOIA4519.000117

b. Searches of objects requiring a greater level of suspicion
1) Destructive Border Searches require reasonable suspicion
merchandise is present.
2) Inbound Mail- Border Searches of Sealed Letter Class Mail
requires reasonable suspicion merchandise is present.
3) Outbound Maila) Border Searches of Sealed Letter Class Mail that
weighs more than 16 ounces may be searched only if
the officer has reasonable suspicion that the mail
contains merchandise.
b) Outbound mail weighing less than 16 ounces may be
searched only with a warrant supported by probable
cause. [19 U.S.C. §1583]
4) Documents
a) Perform a “format glance” to separate correspondence
from other documents
b) Correspondence- Do not read
i) may not read under border search authority
ii) authority to read correspondence may come
from:
(a) Consent
(b) Warrant supported by Probable Cause
(c) Search Incident to Arrest
iii) If these options are unavailable, return the
document to traveler
c) Non-Correspondence- Return to traveler unless
i) You have Reasonable Suspicion that the
document is merchandise or related to
merchandise; if so, read/fully examine

26
2010FOIA4519.000118

ii) Upon full examination, if you obtain Probable
Cause to seize the document, seize the
document; if not, return the document to traveler
iii) If you have Reasonable Suspicion the document
is merchandise or related to merchandise, but
cannot discern the content (language or
technical terminology), then conduct a brief
investigatory inquiry (Terry)
d) Copying Documents
i) official government identification (except
certificates of naturalization) may be copied for
any legitimate/official purpose
ii) If the officer has Probable Cause to seize the
document, then the officer may copy the
document
e) Attorney-Client Privilege claim
i) communication between attorney and client is
protected
ii) communication between attorney and client will
appear in the form of correspondence (written
communication) at the border
iii) documents in attorney’s possession may be
border searched, but correspondence may not be
examined during the search
f) Electronic Devices
i) The physical object is merchandise and may be
searched with no suspicion under border
authority
ii) The information contained within an electronic
device may be border searched for merchandise
(child pornography; weapons technology) or
items related to merchandise
iii) Apply same method used when examining
documents
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2010FOIA4519.000119

iv) Cell phone numbers are information, not
merchandise
v) Note: Although the examination is not
prohibited, consultation with a computer
forensic agent may be necessary to perform the
search and to retrieve any merchandise found
3. Requests for Assistance from Intelligence Agents
a. Intelligence Community- CIA, DIA, NSA, etc. and FBI’s FCI agents.
Military intelligence elements and intelligence officers of the
Department of State, Treasury, and Energy
b. Routine exchanges of information generally permitted
c. Intelligence community requests Customs officer to do something (or
vice versa)- contact supervisor
d. Supervisor notifies Field Intelligence Unit
e. Special Assistant (National Security) to Secretary of Homeland
Security makes final decision.

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2010FOIA4519.000120

V.

Maritime Enforcement Rules
A. Definitions
1. Inland Waters- those waters that provide a vessel with ready access to the
open sea (including US portion of Great Lakes)
2. Customs Waters- 12 nautical miles [19 U.S.C. §1401(j)]
3. High Seas- waters beyond 12 nautical miles
4. Vessels “employed to defraud the revenue”a. Operating without navigational lights in Customs Waters
b. Vessels subject to Hot Pursuit in Customs Waters
c. Hovering Vessels [19 U.S.C. §1401(k)]
B. Authority under 19 U.S.C. §1581
1. With no suspicion, Customs may Hail, Stop, Board, and Document Check
any vessel
a. In Customs Waters or Inland Waters with ready access to the open sea,
or
b. “Employed to defraud the revenue” on the High Seas
2. With reasonable Suspicion of Customs violation (navigational offense, hidden
compartment…), then the officers may search all non-private areas (common)
of the vessel (i.e. open deck, cargo, engine room, ice holds…).
3. With Probable Cause contraband is present or with Consent Customs may
examine the private quarters, containers, or personal items (Carroll Search).
4. Scope of §1581 Examination
a. State registered vessels- (small craft) permitted to examine boat
number, license, registration, and any logs on board
b. Coast Guard registered vessels- permitted to examine the vessel’s
official number affixed to visible interior structural part of hull, or on
the keel beam (main beam) and any logs, ownership or registration
documents.

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5. Vessels Employed to Defraud the Revenue
a. Navigational Lights Violation- any vessel not displaying navigational
lights in Customs Waters allows Customs to:
1) stop, hail, and board
2) bring vessel to the most convenient port to examine cargo [19
U.S.C. §1587]
3) seize vessel for forfeiture (i.e. evidence of hidden
compartment) [19 U.S.C. §1703]
b. Hot Pursuit- if Customs attempts to conduct a §1581 document check
or a border search, Customs may pursue the vessel beyond Customs
Waters and
1) Stop the vessel
2) Board the vessel, subject to the procedures outlined in
Presidential Directive 27 [Note: The pursuit may not continue
into the territorial waters of another nation.]
3) Bring the vessel to the most convenient port to examine cargo
[19 U.S.C. §1587]
4) Seize vessel for forfeiture [19 U.S.C. §1703]
c. Hovering Vessel- If Customs has probable cause to believe that any
vessel in Customs Waters or the High Seas is being used to introduce
merchandise into the United States, Customs may
1) Stop the vessel
2) Board the vessel, subject to PD 27 and foreign nation territorial
waters limitation
3) Bring the vessel to the most convenient port to examine cargo
[§1587]
4) Seize the vessel for forfeiture [§1703]
d. Stateless Vessels- any vessel not registered in any country
e. Assimilated to Stateless- any vessel registered in one nation, but
holding itself out as registered in another nation will be considered a
stateless vessel.

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C. Summary of Authorities
1. Any vessel in Customs waters or Inland waters with ready access to open sea
a) Hail, stop, board, document check;
b) If reasonable certainty of border nexus, etc., border search (e.g.
Foreign vessel in territorial sea; U.S. vessel beyond territorial sea)
c) If hidden compartment found, seize for forfeiture
d) If reasonable suspicion of Customs violation, search non-private areas
e) If probable cause contraband present, Carroll search
2. Vessels “employed to defraud the revenue” on the high seas or in Customs
waters
a) Bring to most convenient port and examine cargo
b) Seize for forfeiture

31

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32

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VI.

Title 21 – Controlled Substances Act (CSA) and Controlled Substances
Import/Export Act
A. Introduction- Subchapter 1 (21 U.S.C. §§801-904) discusses domestic acts over
which DEA has jurisdiction, while Subchapter 2 (21 U.S.C. §§951-971) addresses
import/export violations over which Customs has jurisdiction.
B. Analysis of Elements of Possession with Intent to Distribute- 21 U.S.C. §841(a)(1).
1. Controlled Substances
a. cannot involve sham substances
b. must contain testable amount
2. Possession
a. Ability to Control
b. Intent to Exercise Control
3. Knowing or Intentional
a. Knowledge of
1) Character- general knowledge sufficient
2) Presencea) Exclusive Control
b) Joint Control
c) Deliberate Ignorance
4. With Intent to Distribute
a. Distribute- Any transfer (actual, constructive, or attempted) of
controlled substances
b. Evidences of Intent to Distribute
1) Statements and Admissions
2) Prior Distributions

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2010FOIA4519.000125

3) Quantity, Purity, Value
4) Records (Score Sheets)
5) Packaging Paraphernalia
6) Proximity to Caches of Cash
C. Importation Offenses- 21 U.S.C. §§951-971
1. Elements- Importation §§952, 960
a. Knowingly or Intentionally
b. Brings into the United States
c. A Controlled Substance
2. Elements- Extraterritorial Manufacture, distribution- §§959, 960
a. Manufacturing or Distribution
b. of a Schedule I or II Controlled Substance
c. Intending or knowing that it will be unlawfully imported into the
United States
** or **
d. Manufacturing, Distribution or Possession with the Intent to Distribute
e. On any U.S. Aircraft
** or **
f. Manufacturing, Distribution or Possession with the Intent to Distribute
g. By any U.S. Citizen on any Aircraft

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2010FOIA4519.000126

VII. Maritime Drug Law Enforcement Act (46 U.S.C. App. §§ 1901-1904)
A. Elements [46 U.S.C. App. §§1901-1904]
1. Knowing or Intentional
2. PWID/Distribution/Manufacture
3. Controlled Substance
4. By U.S. Citizen or Resident Alien on any vessel
** or **
5. by Any Person on a U.S. Vessel
** or **
6. by Any Person on a Vessel Subject to U.S. Jurisdiction
B. U.S. Vessel
1. U.S. documented or registered vessel
2. U.S. owned vessel (in whole or part)
3. Vessel once documented under U.S. law, but
a. sold to non-citizen in violation of U.S. law or
b. under foreign registry or foreign flag in violation of U.S. law
C. Vessel Subject to U.S. Jurisdiction
1. Stateless Vessel
2. Assimilated to Stateless Vessel
3. Permission from Flagged Nation
4. Vessel located in territorial waters of foreign nation and receive permission
from that foreign nation
5. Any vessel in Customs Waters
D. Examples

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VIII. Aviation Smuggling (19 U.S.C. § 1590)
A. Aircraft [19 U.S.C. §1590] It is unlawful for the pilot or any individual on board to
1. Knowingly or Intentionally (knowledge of Presence and Character)
2. Possess or Transport
3. Prohibited or Restricted Merchandise
4. For the Purpose of Unlawful Introduction into U.S.
B. Sea Transfers- It is unlawful for any person to
1. Transfer
2. Prohibited or Restricted Merchandise
3. Between an Aircraft and a Vessel (on the High Seas or within the Customs
Waters)
a. If the aircraft is U.S. Registered or Owned
** or **
b. If the vessel is U.S. Owned, Registered or Controlled [19 U.S.C.
§1703(b)]
** or **
c. If both aircraft and vessel are foreign and the transfer is made under
circumstances indicating an intent to unlawfully introduce
merchandise into the U.S.
4. Without Permission of the Secretary of the Treasury
C. Penalties
1. Criminal (Maximum)
a. Controlled Substances- 20 years/$250,000
b. Not Controlled Substances- 5 years/$10,000
2. Forfeitures- If any of the following Prima-facie Acts occur within 250 miles
of the territorial sea the aircraft or vessel is subject to seizure and forfeiture
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a. Operating vessel or aircraft without Navigational lights where required
b. Unauthorized Auxiliary Fuel System (Aircraft)
c. Failure to correctly identify on demand
1) vessel name/nationality
2) aircraft tail number/nationality
d. External display of false tail numbers or vessel name
e. Presence of unmanifested prohibited or restricted merchandise
f. Presence of unmanifested controlled substances
g. Hidden compartment/fitted out for smuggling
h. Failure to stop when hailed
D. Examples

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IX.

Suspect's Rights
A. Miranda background
1. The Fifth Amendment states, in part, that “No person . . . shall be compelled
in any criminal case to be a witness against himself . . .” This means that the
government may not compel a person to incriminate himself by pressuring the
person to answer questions about his role in a crime.
2. In the famous Miranda case, the Supreme Court ruled that being interrogated
while in government custody is inherently coercive (i.e. it creates pressure to
answer the government’s questions) and may undermine a person’s wish to
stay quiet. Even if the government does not “threaten” a suspect, the very act
of interrogating a suspect who is in government custody may be coercive and
may therefore violate the suspect’s Fifth Amendment rights.
3. As a precaution, the Supreme Court decided to require the government to
warn suspects in government custody about their Fifth Amendment rights
before being interrogated. Specifically, the government must let suspects
know that they have the right to remain silent, that anything they say may be
used against them in court and that they have the right to speak to a lawyer.
4. This warning is commonly known as a Miranda warning and must be given to
a suspect in government custody before there is any interrogation. It is a
procedural safeguard designed to protect the suspect’s Fifth Amendment right
against self-incrimination. If the government does not provide the Miranda
warning to a suspect who is interrogated while in government custody, then
any statement made by the suspect in response to the interrogation will not be
admissible as evidence in court.
B. Miranda Requirement
1. A person in government custody must be given a Miranda warning and must
voluntarily waive his Miranda rights before being interrogated:
CUSTODY + INTERROGATION = MIRANDA WARNING REQUIRED
2. If no Miranda warning is given, any statements made by a person in custody
in response to an officer’s interrogation will be inadmissible at trial.
3. Spontaneous statements (i.e. statements that the person voluntarily blurts out)
are fully admissible, whether Miranda warnings were given or not.

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C. Custody Defined
1. Any circumstances where a reasonable person would believe he has been
arrested or is about to be arrested (i.e. “arrest-like” conditions)
a. Telling a suspect “you’re under arrest”
b. Confronting a suspect with evidence of guilt
c. Duration, manner and scope of pressure on traveler are relevant factors
2. Border:
a. CBP Policy: Any seizure beyond a patdown for merchandise is
considered custody for Miranda purposes. Thus, any traveler who has
been subjected to a partial body search, x-ray, body cavity search, or
MBM is in custody for Miranda purposes by CBP policy.
b. ICE Policy?
D. Interrogation Defined
1. Any words or conduct that an officer knows (or should know) are reasonably
likely to elicit an incriminating response.
2. Routine inquiries for legitimate administrative reasons are not interrogation;
e.g., name & address or questions designed to discover presence/location of
imported merchandise.
3. CBP Officer’s role: Generally, agents handling a criminal investigation will
Mirandize and interrogate suspects. CBP Officers may be asked to administer
Miranda warnings, but the decision to do so rests with the agent handling the
investigation of the crime.
E. Legitimate Administrative Purpose Not Interrogation
1. Public Safety
2. Booking (Personal History) Questions
3. Questions to discover presence/location of merchandise in border setting
F. Reading the Rights

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G. Waivers
1. After Suspect Has Chosen to Remain Silent
2. After Attorney Requested (Only unequivocal request triggers)
a. Officer must show:
1) Suspect initiated second interrogation
2) Suspect voluntarily waived rights
b. Problem: Suspect given to or received from another agency

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X.

Bank Secrecy Act- 31 U.S.C. §§5312-5332
A. Report Requirements
1. Domestic Coin and Currency Transactions at Financial Institutions [31 U.S.C.
§5313]
2. Foreign Financial Agency Transactions [31 U.S.C. §5314] (when defined by
regulations)
3. Foreign Currency Transactions by U.S. Persons [31 U.S.C. §5315]
4. Any one who transports or causes the transportation of monetary instruments
in excess of $10,000 at one time coming in or leaving the U.S. must report to
Customs [31 U.S.C. §5316].
a. Transports or causes another to transport
1) Transports- physical movement
2) Causes- have someone else physically move item
b. Monetary Instruments
1) Coin and Currency in circulation (not gold coins)
2) Traveler’s checks
3) Instruments made payable to fictitious person
4) Other Negotiable instruments in Bearer Form
c. “in excess of $10,000”- $10,000.01
d. “At One Time”
1) At One Time, or
2) In one calendar day, or
3) Over any period, if purpose is to avoid report

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e. In/Out of U.S.
1) Inbound- at time of entry
2) Outbound- at time of departure
3) Shipped Instruments
5. Examples
B. Prohibited Structuring- 31 U.S.C. §5324(a)
1. Cause a domestic financial institution to fail to file a Currency Transaction
Report (CTR)
** or **
2. Cause a domestic financial institution to fail to file or to file an erroneous
report due to improper identification
** or **
3. Structure transactions with one or more domestic financial institutions
C. Prohibited Structuring- 31 U.S.C. §5324(c) - If purpose is to evade the reporting
requirements of 31 U.S.C. §5316 (CMIR) and
1. Fail to file or file an erroneous CMIR report under 31 U.S.C. §5316 or cause
someone to do so
** or **
2. File a CMIR report under 31 U.S.C. §5316 that contains a material omission
or misstatement of fact
** or **
3. Structure any importation or exportation of monetary instruments
D. Bulk Cash Smuggling- 31 U.S.C. §5332
1. Elements
a. Transportation or transfer (attempt)
b. Monetary Instruments
44
2010FOIA4519.000136

c. Exceeding $10,000
d. In/Out of the United States
e. Knowingly concealed
f. With intent to evade CMIR report
2. Civil Penalty- Any property involved or traceable to a violation or a
conspiracy to violate may be seized and forfeited
3. Criminal Penalty
a. Imprisonment not to exceed 5 years
b. Mandatory forfeiture of all property involved in or traceable to the
offense
c. If neither forfeitable property nor substitute assets are available, the
court shall issue a personal money judgment for the amount otherwise
subject to forfeiture
4. Property “involved in” defined
a. Monetary Instruments concealed or intended to be concealed (attempts
and conspiracies)
b. Any article, container, or conveyance used or intended to be used to:
1) Conceal, or
2) transport the monetary instruments,
c. Any other property used or intended to be used to facilitate the offense
E. Customs Investigative Authority
1. To Examine Financial Institutions- 31 CFR §103.46
2. CMIR Compliance Investigations
3. CMIR Forfeiture Investigations
4. CMIR Criminal Investigations

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46
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XI.

Money Laundering Control Act
A. Introduction
1. Focus = Intent, not Act
2. Five Major Components Plus Conspiracy (18 U.S.C. § 1956 (h))
a. 18 U.S.C. § 1956(a)(1) Domestic transactions of any nature.
b. 18 U.S.C. § 1956(a)(2) Movement of funds into/out of U.S.
c. 18 U.S.C. § 1956(a)(3) Government Sting Operations.
d. 18 U.S.C. § 1957 Transactions at Financial Institutions
e. 18 U.S.C. § 1960 Illegal Money Transmitting Businesses
B. Analysis of Sections
1. 18 U.S.C. § 1956(a)(1) - Domestic Financial Transactions
a. Financial Transaction (attempt);
1) Any disposition (transfer of property from one entity to
another) involving:
a) Movement of funds
b) Monetary instruments
i) Coin and currency
ii) Travelers checks
iii) Personal checks, bank checks, money orders
iv) Other instruments in bearer form
c) Title transfer of Real Estate or Conveyances
d) Use of financial institution; or
2) Any use of safe deposit box at financial institution
b. Interstate or Foreign Commerce Affected;
c. Proceeds of SUA; 1
1

Specified Unlawful Activity (SUA). All violations forming predicate acts under 18 U.S.C. 1961(1)
[RICO] EXCEPT Title 31 report violations. Those which are of interest to Immigration and Customs Enforcement
are: 8 U.S.C. §§ 1324, 1327, and 1328; 18 U.S.C. § 201 [Bribery]; 18 U.S.C. § 659 [Felony Theft from Interstate
Shipment); 18 U.S.C. §§ 2251, 2252 [Sexual Exploitation of Children]; 18 U.S.C. §§ 2312, 2321 [Stolen Vehicles];
47

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d. Knowledge (Belief) that Property is Proceeds from Some State,
Federal, or Foreign Felony;
e. Intent (Purpose) to:
1) Promote Some Violation (SUA, in fact);
2) Conceal Some Aspect Of (SUA, in fact);
3) Avoid A Reporting Requirement.
4) Engage in Conduct Prohibited by 26 U.S.C. §§ 7201, 7206
f. Extraterritorial Application - If transaction takes place outside of
United States and is
1) conducted by an United States citizen; or
2) takes place in part in United States and involves funds or
monetary instruments exceeding $10,000
2. 18 U.S.C. § 1956(a)(2) (Larger of $500,000/twice the value of funds involved
and/or 20 years) - International Transportation
a. Intent (Purpose) to Promote Some Felony (SUA, in fact);
b. Import/Export Funds (attempt).
*** OR ***
c. Intent (Purpose) to Conceal Some Aspect Of (SUA, in fact);
d. Knowledge (Belief) Proceeds Are From Some Felony; ("Sting"
representation will satisfy)
e. Proceeds of SUA;
f. Import/Export Funds (attempt);
*** OR ***
g. Intent (Purpose) to Avoid Reporting Requirement;

18 U.S.C. § 2314 [Intermediate Transportation of Stolen Property]; **21 U.S.C. Drug Violations; **Violations of
Foreign Drug Laws; **21 U.S.C. § 848 - Continuing Criminal Enterprise (CCE); 18 U.S.C. § 542 - False
Statements; 18 U.S.C. § 545 - Smuggling; 18 U.S.C. § 549 - Removing Goods from Customs Custody; 18 U.S.C. §
2319 - Criminal Copyright Infringement; 18 U.S.C. § 2320 - Counterfeit Goods and Services; 19 U.S.C. § 1590 Aviation Smuggling; 21 U.S.C. § 863 - Drug Paraphernalia; 22 U.S.C. § 2778 - Arms Export Control Act; 50 U.S.C.
§ 1702 - International Emergency Economic Powers Act; 50 U.S.C. App. § 3 - Trading with the Enemy Act; Other
offenses specified in 18 U.S.C. § 1956; **Justice/Treasury MOU controls Customs Title 21 drug investigations.
48

2010FOIA4519.000140

h. Knowledge (Belief) Proceeds Are From Some Felony; ("Sting"
representation will satisfy)
i. Import/Export Funds (attempt).
3. 18 U.S.C. § 1956(a)(3) ($250,000/20 years) - Undercover “Sting” Operations
a. Financial Transaction (attempt);
b. Property Represented By Federal Law Enforcement Officer (or his
agent) To Be Proceeds of SUA;
c. Intent to:
1) Promote Some SUA;
2) Conceal Some Aspect Of Represented Proceeds;
3) Avoid A Reporting Requirement.
4. 18 U.S.C. § 1957 ($250,000/10 years) - Engaging in Monetary Transactions in
Property Derived from Specified Unlawful Activity
a. Proceeds of Specified Unlawful Activity;
b. Financial Institution Transaction (attempt) of more than $10,000 in
funds or monetary instruments;
c. Affecting Interstate/Foreign Commerce;
d. Knowledge (Belief) Proceeds Criminally Derived;
e. Conducted in U.S. or, if not, by a "U.S. person." (U.S. National;
Permanent Resident Alien; Company composed principally of U.S.
Nationals or Resident Aliens; and U.S. Corporations.)
5. 18 U.S.C. § 1960 ($250,000/5 yrs) - Prohibition of Unlicensed Money
Transmitting Businesses
a. Elements: (General Intent Crime – the Government does not have to
show that the defendant knew that a State license was required or that
the Federal registration requirements promulgated pursuant to 31
U.S.C. § 5330 applied to the business.)
1) Conducts, controls, manages, supervises, directs, or owns;
2) An “unlicensed money transmitting business.”
a) Transferring funds on behalf of the public; and

49

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b) Is operated without a State license where the lack of
such a crime is under State law;
** OR **
c) Fails to comply with the registration requirements for
money transmitter businesses set forth in 31 U.S.C. §
5330 or regulations promulgated thereunder;
** OR **
d) Otherwise involves the transportation or transmission of
funds that are known to the defendant to have been
derived from a criminal offense or are intended to be
used to promote or support unlawful activity.
b. Sample violations of 18 U.S.C. § 1960.
1) Bill and Pete receive monies from various clients and deposit
the funds into an account. They thereafter wire transfer the
monies to other accounts as directed by the clients without a
license in a State where such unlicensed conduct is a crime.
2) Bill and Pete are licensed in Florida as money transmitters and
are actually engaged in that business, however, their business is
not registered in accordance with 31 U.S.C. § 5330.
3) Bill and Pete are licensed in Florida as money transmitters and
registered as required by 31 U.S.C. § 5330. Bill accepts money
from Sam knowing that it was criminally derived and transmits
the money to another person in accordance with Sam’s
instructions.
6. Use the Summary Reference Chart at end of this section to analyze facts for
evidence of money laundering violations.

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Money Laundering Violations
Summary Reference
18 U.S.C. §§ 1956, 1957
Act:

Disposition
Affecting Commerce
(Movement/Monetary
Inst./Titles/S.Dep.
Box)
[1956(a)(1)]

Import/Export
[1956(a)(2)]

Import/Export
[1956(a)(2)]

Import/Export
[1956(a)(2)]

Any Fin Trans
[1956(a)(3)]

Mon. Trans @
Fin. Inst >
$10,000 [1957]

Proceeds:

SUA

ANY Source

SUA

ANY Source

Gov Rep-SUA

SUA

Knowledge:

Felon. Derived

Felon. Derived

Felon. Derived

Intent:

Promote (SUA)
Conceal (SUA)
Avoid Report Req’t
Tax Fraud

Conceal (SUA)

Avoid Report
Requirement

Promote (SUA)

Crim. Derived
Promote (SUA)
Conceal (SUA)
Avoid Report
Requirement

None

Common Customs Specified Unlawful Activities (SUA’S):
-Violations of 18 U.S.C. § 541 (Entry of Goods Falsely Classified)
-Violations of 18 U.S.C. § 542 (False Statements)
-Violations of 18 U.S.C. § 545 (Smuggling)
-Violations of 18 U.S.C. § 549 (Removing Goods From Customs Custody)
-Violations of 18 U.S.C. § 659 (Felony Theft From Interstate Shipment)
-Violations of 18 U.S.C. § 922(l) (Unlawful Importation of Firearms)
-Violations of 18 U.S.C. §§ 2251, 2252 (Sexual Exploitation of Minors)
-Violations of 18 U.S.C. § 2319 (Copyright Infringement)
-Violations of 18 U.S.C. § 2320 (Counterfeit Goods and Services)
-Violations of 19 U.S.C. § 1590 (Aviation Smuggling)
-Violations of 22 U.S.C. § 2778 (Arms Export Control Act)
-Violations of 50 U.S.C. §§ 1701-1706 (International Emergency Economic Powers Act)
-Violations of 50 U.S.C. App. § 3 (Trading With the Enemy Act)

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XII. The Right To Financial Privacy Act – 12 U.S.C. §§ 3401-3422
A. What it does
1. Restricts federal government's access to financial records/information at
Financial Institutions
2. Gives customer notice of and right to challenge access
B. Who are “customers”?
1. Individuals and partnerships of five or less
2. Large partnerships and corporations not protected.
C. What is a “financial institution”?
1. All banking and lending-type institutions
2. Credit card issuers (Visa, American Express, etc.)
3. Consumer finance businesses (General Motors Acceptance Corporation,
General Electric Credit Corporation, etc.)
D. What is a “financial record”?
1. Any record, or information derived from such, of a customer's relationship
with financial institution held by institution
2. Does not include records not identifiable with a particular customer
[§ 3413(a)]
E. Prohibits access unless pursuant to:
1. Consent of customer
2. Administrative subpoena or summons [§ 3405]
a. Summons’ Available
1) Title 21 Controlled Substances Enforcement Subpoena
2) Customs Export Enforcement Subpoena
3) Bank Secrecy Act Summons for Civil Enforcement of
Currency Reporting Act
4) Customs Summons - If probable cause records related to
importation of prohibited merchandise other than drugs
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b. Requirements
1) Reasonable belief records
enforcement inquiry;

relevant

to

legitimate

law

2) Copy of subpoena/summons, along with statutory notice of
how to challenge access, served on customer on or before date
served on institution;
3) Notice must state with reasonable specificity nature of
investigation pursuant to which records sought; and
4) Must wait ten days from service (14 days from mailing).
3. Search Warrant [§ 3406]
a. Probable cause records are evidence of crime
b. Notice to customer within 90 days of execution of warrant (unless
delay authorized by court-180 days max.)
4. Formal Written Request [§ 3408]
a. Only if administrative subpoena or summons is unavailable;
b. Agency regulations authorize issuance;
c. Reasonable belief records relevant to legitimate law enforcement
inquiry;
d. Copy of request, along with statutory notice of how to challenge
access, is served on customer on or before date request to institution;
e. Notice must state with reasonable specificity nature of investigation
pursuant to which records sought; and
f. Must wait ten days from service (14 days from mailing).
5. Judicial Subpoena [§ 3407]
a. Reasonable belief records relevant to legitimate law enforcement
inquiry;
b. Copy of subpoena, along with statutory notice of how to challenge
access, served on customer on or before date served on institution;
c. Notice must state with reasonable specificity nature of investigation
pursuant to which records sought; and

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d. Must wait ten days from service (14 days from mailing).
F. Delay of Required Notice [§ 3409]
1. Reason to believe notice will result in
a. Endangerment of life or physical safety;
b. Flight from prosecution;
c. Destruction or alteration of evidence;
d. Witness intimidation; or
e. Undue delay in or serious jeopardy to investigation
2. Not to exceed 90 days, but may be extended if circumstances warrant
G. Certification – Officer must certify in writing compliance with all applicable
provisions of RFPA
H. Use of Information Obtained [§ 3412]
1. Transfers to another agency
a. Only if certificate of relevancy made;
b. Certification and statutory notice sent to customer within 14 days.
2. Transfers to Attorney General not restricted when:
a. Certified that records may be relevant to violation of fed. criminal law;
and
b. Records obtained in exercise of agency supervisory or regulatory
functions.
c. Used only for criminal investigative or prosecutive purposes, or 18
U.S.C. §§ 981, 982 purposes and are transferred back upon
completion.
I. Exceptions
1. Judicial subpoena where government and Customer are parties to litigation;
2. Grand Jury Subpoena [§ 3413(i)]
a. Court may order institution to not notify customer under same
circumstances as delayed notice provisions of § 3409;
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b. Statutory gag if drug or money laundering investigation; [§
3420(b)(1)]
c. Records must be actually presented to grand jury; [§ 3420(a)(1)]
d. Records may only be used for grand jury purpose; [§ 3420 (a) (3)]
e. Records must be destroyed or returned if not so used; [§ 3420 (a)(3)]
f. Records shall not be maintained, nor a description of contents
maintained unless:
1) In sealed records of grand jury;
2) Used in Prosecution based on grand jury indictment; or
3) For purpose authorized by Rule 6(e), FED. R. CRIM. P.
J. Exception to Notice Requirement [§ 3413(g)]
1. Basic account information with respect to a particular transaction (i.e., name
address, account number and type of account).
2. Must use one of five authorized methods to get, however.
K. Sanction for Violation [§ 3417]
1. Civil penalty against agency and/or institution;
2. Punitive damages for willful or intentional violations;
3. Disciplinary action for willful/intentional violations by agent or employee of
agency.
4. Good faith reliance on government certificate of compliance is defense for
institution.
5. Remedies are exclusive.

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XIII. Fair Credit Reporting Act - 15 U.S.C. § 1681
A. Prohibits Access to Credit Reports Unless:
B. Written Instructions of the Consumer
C. Order of Court
D. Grand Jury Subpoena

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XIV. Documentary Materials in Hands of Disinterested Third Party
(Privacy Protection Act -- 42 U.S.C. §§ 2000aa, 2000aa-5 to 2000aa-7,
2000aa-11, 2000aa-12)
A. General Rule – A search warrant should not be used to obtain documentary
materials from a nonsuspect, except where the use of a subpoena or other less
intrusive means would jeopardize the availability or usefulness of the materials
sought.
B. Definitions
1. Documentary Materials - any materials on which information is recorded.
Includes electronically or magnetically recorded material
2. Disinterested Third Party - person not reasonably believed to be a suspect nor
related by blood or marriage to a suspect
C. Contact AUSA before seizing any materials which might be covered by PPA
1. Disinterested third party - Search Warrant must be authorized by AUSA;
2. Disinterested third party who is a physician, lawyer, or clergyman - Search
Warrant must be approved by Deputy Assistant Attorney General;
3. Work product or documents of person reasonably believed to have a purpose
to disseminate public communications (newspaper, book, broadcast, some
BBS services etc.) - By statute warrants can only by sought under very special
circumstances, e.g. person committed the crime, prevent seriously bodily
harm, etc.
D. Sanctions
1. Civil action against Customs - $1,000 or actual damages plus attorneys’ fees
2. Disciplinary actions against officer
E. Exceptions
1. Border Searches
2. Where other statute requires search warrant or other procedures, e.g.
a. Stored communications (ECPA)
b. Financial information - financial institutions (RFPA)

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XV. Asset Removal
A. Title 19 Civil Forfeiture Concepts [Ref: Chapter 15, LCCO]
1. Forfeiture defined
2. Concepts
a. In Rem proceeding
b. Title to property
c. Relation back doctrine
B. Title 19 Civil Forfeiture Proceedings
1. Seizing Property
a. Probable cause required
b. Warrantless seizure in public place at time of offending act.
c. Process available
1) Criminal search warrant - Rule 41 FED. R. CRIM. P
a) Contraband (illegally possessed)
b) Fruits of crime (proceeds)
c) Instrumentalities of crime (used to commit)
2) Warrant of Arrest In Rem - Supplemental Admiralty Rules
2. Seizure Report
a. Timeliness
b. Matters addressed
1) Evidence re: forfeitability
2) Evidence re: potential defenses
3. Administrative Forfeiture
a. Monetary instruments regardless of value
b. Conveyances of any value involved in a controlled substance violation
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c. Other property valued at no more than $500,000
4. Judicial Forfeiture
a. Property valued above $500,000
b. Real Estate
c. Any other property for which a Claim & Cost Bond has been posted to
preclude administrative forfeiture
5. Petitions for Remission/Mitigation of Forfeiture
a. Purpose
b. Investigative considerations
1) Used While Stolen
2) Not Used as Alleged
3) Common Carriers
a) Master/Owner not Involved
b) “Highest Standard of Care” to Prevent
4) Lienholder status
5) Bona Fide Purchaser for value (BFP)
6) Commercial seizures
a) No Willful Negligence
b) No Intent to Defraud
c) No Intent to Violate Law
6. Standards of Proof
a. Institution of forfeiture
b. Prevail at trial
7. The Exclusionary Rule and Civil Forfeiture
a. Illegally seized evidence precluded
b. Illegally seized property still forfeitable
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C. Civil Asset Forfeiture Reform Act (CAFRA)
1. Forfeitures pursuant to all statutes other than Title 19, I.R.C., TWEA and the
Neutrality Act are subject to:
a. New notice and timing requirement
b. Entitlement to appointed counsel. 18 U.S.C. § 983(b).
c. Burden of proof on the government to establish forfeitability by a
preponderance of the evidence. 18 U.S.C. § 983(c).
d. Standardized Innocent Owner defense. 18 U.S.C. § 983(d).
e. Subject to being set aside for failure to give/receive notice. 18 U.S.C.
§ 983(c).
f. Hardship release of seized property. 18 U.S.C. § 983(f).
g. Eighth Amendment proportionality analysis. 18 U.S.C. § 983(g).
h. Fines imposed on frivolous claimants. 18 U.S.C. § 983(h).
2. Seizures pursuant to 18 U.S.C. § 981 and 21 U.S.C. § 881(b) require a warrant
or some recognized exception.
3. Establishes criminal forfeiture for any case where civil forfeiture is
authorized. 28 U.S.C. § 2461.
4. Establishes a general civil forfeiture statute for any property constituting
“proceeds” from any crime denominated ‘specified unlawful activity’ in the
Money Laundering Control Act. 18 U.S.C. § 981(a)(1)(C).
5. Certificate of Probable Cause immunizes seizing officer from suit. 28 U.S.C.
§ 2465(a)(2).
6. Attorney fees and costs awarded to prevailing claimants. 28 U.S.C. §
2465(b)(1).
D. 19 U.S.C. § 1595a(a)
1. Any Thing
2. Used in Any Way
3. to Aid or Facilitate
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4. Importation, Bringing In, or
5. Landing, Unloading, or
6. Removal, Concealing, Harboring, or
7. Subsequent Transportation of
8. Any Article Introduced (Attempted) Contrary to Law
E. Criminal Forfeiture Concepts [Ref: Chapter 15, LCCO]
1. In Personam proceeding
2. Criminal conviction required
3. Standard of Proof
4. No "Relation Back" to Bona Fide Purchasers for Value

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XVI. Criminal Fraud
A. 18 U.S.C. § 542 – Entry of Goods by Means of False Statement (2 years/$250,000
– both)
False Entry
1. Enter/Introduce, Attempt Enter/Introduce
a. Entry – begins when information is submitted to Customs, complete
when goods are released;
b. Introduction – when goods are actually landed whether or not entry
has been made
2. Merchandise
3. Into commerce of U.S.
4. By MEANS of any fraudulent or false statement (written or verbal), practice
or appliance (whether or not U.S. may be deprived of duties)
False Statement in Declaration
1. Makes any MATERIAL false statement
2. In any declaration
3. Without reasonable cause to believe the truth of such statement (whether or
not U.S. may be deprived of duties)
Willful Acts or Omissions
1. Willful act or omission
2. Whereby U.S. may be deprived of duties
3. Regarding merchandise which is the subject of a false invoice, paper or
statement
** OR **
4. On merchandise affected by such act or omission.

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B. 18 U.S.C. § 545 – Smuggling Goods Into the United States (5 years/$250,000 –
both)
Smuggling or Clandestine Introduction
1. Whoever knowingly and willfully
2. With intent to defraud the U.S.
3. Smuggles or Clandestinely Introduces into U.S., including attempts
4. Uninvoiced merchandise
Passing False Documents through the Customhouse
1. Whoever knowingly or willfully
2. With intent to defraud the U.S.
3. Passes (attempts to pass) through Customhouse
4. Any false, forged or fraudulent invoice other document or paper
Importations Contrary to Law
1. Whoever fraudulently or knowingly
2. Imports or brings into the U.S.
3. Any merchandise contrary to law
Receiving, Concealing, etc., Merchandise Imported Contrary to Law
1. Whoever fraudulently/knowingly
2. Receives, conceals, buys, sells merchandise, or facilitates the transportation,
concealment or sale
3. Knowing merchandise was imported/brought in contrary to law

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XVII.

Customs Civil Fraud Under 19 U.S.C. § 1592

A. Elements of a § 1592 Violation
1. Negligence, Gross Negligence, or Fraud
a. Clerical errors or mistakes of fact are not
negligence unless part of a pattern of negligent
conduct
b. Fraud requires intent to deceive
2. Entry, Introduction, or Attempt
a. An entry occurs when goods are actually
released into the commerce of the United States
b. An introduction occurs when the goods are
actually landed in the United States
c. An attempt occurs when the circumstances
establish that, but for an unforeseen
intervention, the entry or introduction would
have occurred.
3. Merchandise into the Commerce of the United States
4. By means of any document, statement or act which is
material and false;
** OR **
4. By means of any material omission
** OR **
4. Any aiding or abetting of the above
B. Examples
1. Material Omission – An importer fails to provide Customs with the necessary
visa for imported goods subject to quota requirements, and the importer
attempts to enter the items as nonquota/visa merchandise. You may also have
a false statement here if the articles themselves are falsely described.

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2. False Act or Practice – An importer who enters goods properly marked with
the correct country of origin, but who subsequently removes the country of
origin marking to sell the goods as U.S. made, has engaged in a false act or
practice if the evidence shows that the importer had the intent to remove the
marking prior to, or at the time of entry.
C. Culpability and Burden of Proof
1. Levels of Culpability
a. Negligence – The failure to exercise reasonable care and competence
b. Gross Negligence – Acts done with actual knowledge of or wanton
disregard for the facts and with indifference or disregard for the
offender's obligations
c. Fraud – Acts deliberately done with intent to defraud the revenue or
otherwise violate laws of the United States
2. Burden and Standards of Proof
a. Negligence – Preponderance of the Evidence
1) Government establishes that the entry was materially wrong;
2) Burden shifts to defendant to show error did not result from
negligence
b. Gross negligence – Preponderance of the Evidence
1) Government must establish that the entry was materially
wrong; and
2) Due to gross negligence.
c. Fraud – Clear and Convincing Evidence
1) Government must establish that the entry was materially
wrong; and
2) Due to an intent to deceive
D. Customs Statute of Limitations 19 U.S.C. § 1621
1. In general - Penalties and Forfeitures - Five years from date of discovery
2. § 1592 - Penalties and Duty

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a. Negligence – 5 Years from Act
b. Fraud – 5 Years from Discovery
3. Rule of Thumb - Assume that the statute will run 5 years from each act.
4. Steps to Establish a Judicially Enforceable Claim Under § 1592

Processing Steps for § 1592 Claim

1. Pr e-penalty N otice

2. Pre-penalty
R es ponse

3. Penalty N otice
and/or
§ 1592( d) D em and

4. Paym ent

4. Petition

4. Refer ral to
D O J/CIT

5. D ecis ion on
Petition

6. Paym ent

6. Supplem ental
D ecis ion

6. Refer ral to
D O J/CIT

E. Prior Disclosure
1. “Reward” to encourage self-policing – substantial limits on penalties
2. Criteria for Asserting Prior Disclosure
a. Importer must disclose circumstances
commencement of formal investigation; or

of

violation

prior

to

b. Importer must disclose circumstances of violation without knowledge
of commencement of formal investigation.
NOTE: Violator has burden of proving lack of knowledge under b).
3. Commencement of formal investigation – the date recorded in writing by a
Customs officer who reasonably believes there is a violation

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4. Knowledge of the commencement of a formal investigation presumed when:
a. Officer informed person of type of violation
b. Agent requests specific book/records
c. Prepenalty notice issued
d. Merchandise seized
e. Accompanying merchandise or merchandise inspected with entry oral notification

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19 U.S.C. 1592 - Penalties
Statutory Ceilings
Fraud

Gross Negligence

Revenue Loss:
Domestic Value of the
Merchandise

Revenue Loss:
Domestic Value of the
Merchandise, or four (4)
times the Loss of Revenue,
Whichever is Less

Nonrevenue Loss:
Domestic Value of the
Merchandise

Nonrevenue Loss:
40% of the Dutiable value
of the Merchandise

Negligence
Revenue Loss:
Domestic Value of the
Merchandise, or two (2)
times the Loss of
Revenue, Whichever is
Less
Nonrevenue Loss:
20% of the Dutiable
Value of the
Merchandise

Administrative Penalty Dispositions
19 C.F.R. Part 171, App. B(F)(2)(a)-(c)
Revenue Loss:
Revenue Loss:
Minimum of five (5) times Minimum of 2.5 Times the
the Loss of Duty to a Loss of Duty to a Maximum
Maximum of eight (8) times of four (4) times the Loss of
the Loss of Duty.
Duty.

Revenue Loss:
Minimum of .5 times the
Loss of Duty to a Maximum
of two (2) times the Loss of
Duty.

Nonrevenue Loss:
Nonrevenue Loss:
Nonrevenue Loss:
50% to 80% of the Dutiable 25% to 40% of the Dutiable 5% to 20% of the Dutiable
Value of the Merchandise.
Value of the Merchandise.
Value of the Merchandise.
Note: A penalty may never exceed the domestic value of the merchandise.

Prior Disclosure Dispositions
19 C.F.R. Part 171, App. B(F)(2)(f)
Revenue Loss:
100% of the Total Loss of
Duty
(i.e.,
Actual
+
Potential) Resulting from
the Violation. No Mitigation
Permitted.

Revenue Loss:
Interest on the Actual Loss
of Duty Computed From
Date of Liquidation to the
Date of the Party’s Tender
of Duty Actually Lost.

Nonrevenue Loss:
Nonrevenue Loss:
10% of the Dutiable Value No Monetary Penalty.
of the Merchandise.
No
Mitigation Permitted.

Revenue Loss:
Interest on the Actual Loss
of Duty Computed From
Date of Liquidation to the
Date of the Party’s Tender
of Duty Actually Lost.
Nonrevenue Loss:
No Monetary Penalty.

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XVIII.

Customs Civil Drawback Fraud - 19 U.S.C. § 1593a

This statute penalizes fraudulent or negligent drawback claims and provides for
assessment of monetary penalties. The penalty process is parallel to 19 U.S.C. § 1592,
i.e., prepenalty notice, penalty, appeals, prior disclosure, etc.

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XIX. Examination/Summons Authority - 19 U.S.C. §§ 1508-1510
A. Examination/Summons Authority
1. Purposes for which may conduct examination or issue summons
a) Ascertain correctness of entry
b) Determine liability for duty, fees, taxes
c) Determine liability for fines/penalties/forfeitures
d) Insure compliance with laws of U.S. administered by Customs
2. Voluntary Examination
a) Any record or any person may be examined for any authorized
purpose
b) Compulsory examinations of person or records must be
pursuant to summons or other process
3. Summons
a) Authorized only by Port Director, Regulatory Audit Field
Director or SAIC
b) To any person
c) To produce records
(1) Required by § 1508; or
(2) Regarding which there is probable cause to believe that
they pertain to prohibited merchandise; and/or
d) To give testimony relevant to any Customs
investigation/inquiry
e) Within 100 miles of place served
B. Persons Required to Maintain Records
1. Owner, Importer/Importer of Record, Consignee, Entry Filer;
2. Anyone who imports, files a drawback claim, transports or stores
under bond;
3. Anyone whose activities require the filing of a declaration or entry;

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4. Anyone who causes merchandise to be imported, i.e.,
a) Controls terms or conditions of importation; or
b) Furnishes technical data, molds, equipment, components, etc.,
or production assistance
NOTE: Persons ordering in domestic transaction are not "causing"
importation.
5. Anyone who signs a NAFTA Certificate of Origin for which
preferential treatment under NAFTA is claimed.
C. Records Required to be Maintained
1. “Entry Records/(a)(1)(A)” list - Appendix Part 163 C.F.R.
a) Must be provided on demand within 30 days
b) Penalty for failure to comply
2. “Records” - Any Records Made and Normally Kept in the Ordinary
Course of Business that pertain to:
a) Any importation, declaration or entry;
b) The transportation or storage of merchandise carried or held
under bond into or from the Customs territory of the United
States;
c) The filing of a drawback claim;
d) The completion and signature of a NAFTA Certificate of
Origin;
e) The collection, or payment to Customs, of duties, fees and
taxes; or
f) Any other activity required to be undertaken pursuant to the
laws or regulations administered by Customs.
3. NOTE: May include automated record storage, (e.g., magnetic discs
and tapes) as well as computer programs necessary to retrieve
information in usable form.

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D. Procedures for Third Party Recordkeepers
1. Third party recordkeeper defined:
a) Customs broker; unless importer of record
b) Attorney; or
c) Accountant
2. Summons served on third party recordkeeper
3. Notice given to person whose records are sought (includes copy of
summons and directions for quashing)
Exception: No notice to person whose records sought, if on issuing
officer's petition, a court finds notice may lead to obstruction of
justice/flight.
4. Person whose records sought may intervene to stop enforcement of
summons:
a) Must direct third party not to comply
b) Must give notice to "Secretary" (Notice is given to issuing
Customs officer)
E. Judicial Enforcement of Summons
1. If after ordering enforcement person does not comply, Secretary may:
a) Prohibit importations
b) Withhold delivery of merchandise imported by person
c) Auction merchandise after in contempt more than one year;
and
d) Penalties:
(1) A willful failure to maintain, store or retrieve “a(1)(A)”
records on demand can result in a penalty of $100,000
or an amount equal to 75% of the appraised value,
whichever is less, while
(2) A negligent failure can result in a penalty of $10,000 or
40% of the appraised value, whichever is less
2. Court may hold person in contempt
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XX.

PERSONAL LAWSUITS
A.

Federal Tort Claims Act
1.

Covers “employee of the government”

2.

Scope of Employment – Performing the job assigned to you by the
Government even if doing it wrong.

3.

Negligent Acts - Failure to exercise the degree of reasonable care

and
competence expected from a person in the same circumstances.
4.

Exempted from the coverage are any claims arising in respect of

the
detention of any goods or merchandise by any officer of Customs..
B.

Constitutional Torts (Bivens).

1.
Federal officers may be personally liable if the they violate a
plaintiff’s
constitutional rights regardless of whether they were acting within the
scope of
their employment. Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S.
388 (1971).
2.

Qualified Immunity

a.
affirmative

If certain conditions exist, an officer will have the
defense of "qualified immunity."

b.

The inquiry will be whether a reasonably well-trained law
enforcement officer would have known of the duty or right

which
was infringed. Officers who reasonably but mistakenly
believe
their conduct comports with the 4th Amendment are
entitled to
immunity.
c.
the

The issue of qualified immunity will be decided as early in
litigation as possible. If the District Court declines to grant
qualified immunity, the issue is immediately appealable.

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C.

Government Representation Conditioned on:
Scope of Employment
&
Best Interest of the United States Government
1.

Not automatic - must request government attorney

2.

Decision to represent must await investigations where allegations

of
criminal conduct occur or whenever a shooting is involved.
D.
Payment of Judgments - If an employee is sued for acts conducted within
the scope of employment, and either the Attorney General, Commissioner of Customs, or
the court has so certified, and a judgment is rendered against you, that judgment may
nonetheless be paid by the government under certain circumstances. If your conduct was
at the direction of a supervisor or otherwise in accord with Customs policy, federal law
provides for payment of the judgement. 28 U.S.C. § 2006 (1998).

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Custody and Bond Issues
in Removal Proceedings

1

Gregory Fehlings
Deputy Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000172

TABLE OF CONTENTS
I.

DUE PROCESS REQUIREMENT....................................................................... 3

II.

TIME AND PLACE FOR BOND/CUSTODY HEARING .................................. 6

A.

VENUE FOR THE BOND HEARING ................................................................................ 6

B.

PROMPT BOND HEARING ............................................................................................. 7

C.

ALIENS RELEASED BY DHS.......................................................................................... 7

D.

ALIENS WITH A FINAL ORDER OF REMOVAL ............................................................. 8

III.

MANDATORY DETENTION ............................................................................... 8

A.

EXCEPTIONS TO INA § 236(C)(1) ............................................................................... 11

B.

JOSEPH HEARING ....................................................................................................... 11

C.

“WHEN THE ALIEN IS RELEASED” CLAUSE IN INA § 236(C)................................... 13

D.

ARRIVING ALIENS ....................................................................................................... 16

IV.

INDEFINITE DETENTION .............................................................................. 19

V.

DISCRETIONARY DETENTION UNDER INA § 236(a) ................................ 21
A.

CLASSES OF ALIENS FOR WHICH ATTORNEY GENERAL HAS WITHHELD
DISCRETION TO RELEASE .......................................................................................... 22

B.

BURDEN OF PROOF ..................................................................................................... 23
1. Threat to National Security .................................................................................................. 25
2. Danger to the Community ................................................................................................... 25
2. Flight Risk ........................................................................................................................... 24

C.

OTHER BOND FACTORS .............................................................................................. 27

D.

MINIMUM BOND .......................................................................................................... 27

E.

INFORMAL HEARING................................................................................................... 29

F.

EVIDENCE AT BOND HEARINGS ................................................................................. 30

G.

BOND DECISION .......................................................................................................... 34

VI.

SUBSEQUENT BOND REDETERMINATION................................................ 34

VII.

BOND REVOCATION ....................................................................................... 35

VIII.

BOND APPEALS ................................................................................................ 36

IX.

STAY OF RELEASE FROM DETENTION ...................................................... 37

X.

BREACH OF BOND ........................................................................................... 38

2

Gregory Fehlings
Deputy Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000173

I.

DUE PROCESS REQUIREMENT

An alien detained pending a decision as to whether the alien is to be removed from the
United States does not have a right to be released on bond. Matter of Guerra, 24 I&N
Dec. 37, 39 (BIA 2006) (citing Carlson v. Landon, 342 U.S. 524, 534 (1952); Matter of
D-J-, 23 I&N Dec. 572, 575 (AG 2003). The Supreme Court has concluded that
detention is a normal and lawful part of removal proceedings: “Detention during removal
proceedings is a constitutionally permissible part of that process.” Demore v. Kim, 538
U.S. 510, 531 (2003). The Court has a “longstanding view that the Government may
constitutionally detain deportable aliens during the limited period necessary for their
removal proceedings.” Id., at 526.
The Supreme Court has stated that Congress has broad authority to made rules for
detaining aliens during removal or deportation proceedings:
For reasons long recognized as valid, the responsibility for regulating the
relationship between the United States and our alien visitors has been
committed to the political branches of the Federal Government. Over no
conceivable subject is the legislative power of Congress more complete.
Thus, in the exercise of its broad power over immigration and
naturalization, Congress regularly makes rules that would be unacceptable
if applied to citizens.... Congress has the authority to detain aliens
suspected of entering the country illegally pending their deportation
hearings. And ... Congress [has] eliminated any presumption of release
pending deportation, committing that determination to the discretion of the
Attorney General.
Reno v. Flores, 507 U.S. 292, 305-06 (1993) (internal punctuation and citations omitted)
(upholding INS policy on release of detained juveniles).
The rules for detaining aliens are subject to the Due Process Clause of the Fifth
Amendment to the United States Constitution, which provides that no person shall be
deprived of liberty without “due process of law.” Id.; U.S. CONST. ART. V. “It is well
established that the Fifth Amendment entitles aliens to due process of law in deportation
proceedings.” Flores, at 305-07. “The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976). But it is “not necessarily an opportunity upon a
regular, set occasion, and according to the forms of judicial procedure.” Yamataya v.
Fisher (The Japanese Immigrant Case), 189 U.S. 86, 98 (1903).
The due process that must be afforded aliens varies with the circumstances. “Due
process in an administrative proceeding is not defined by inflexible rules which are
universally applied, but rather varies according to the nature of the case and the relative
importance of the governmental and private interests involved.” Matter of Exilus, 18
3

Gregory Fehlings
Deputy Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000174

I&N Dec. 276, 278 (BIA 1982). The Supreme Court has stated that due process of law is
a flexible concept that adjusts according to three factors:
The constitutional sufficiency of procedures ... varies with the
circumstances. In evaluating the procedures in any case, the courts must
consider [(1)] the interest at stake for the individual, [(2)] the risk of an
erroneous deprivation of the interest through the procedures used as well
as the probable value of additional or different procedural safeguards, and
[(3)] the interest of the government in using the current procedures rather
than additional or different procedures.
Landon v. Plasencia, 459 U.S. 21, 34 (1982) (citations omitted) (deciding what due
process must be afforded a returning lawful permanent resident alien).
In Demore v. Kim, 538 U.S. 510, 531 (2003), the Supreme Court balanced the three due
process factors in deciding to uphold section 236(c)(1) of the Immigration and
Nationality Act (INA), which mandates the detention of certain criminal aliens pending
the completion of removal proceedings. First, the Court emphasized that the statute was
justified by the legitimate congressional interest in ensuring the removal of criminal
aliens who might flee or cause harm to the public during their removal proceedings. See
id., at 523-28. Second and most significantly, the Court found that the detention did not
raise the constitutional concerns that might arise in the post-removal-period context,
because removal proceedings, unlike the post-removal period, have a finite termination
point. See id., at 527-28. The Court further concluded that, notwithstanding evidence
that other courses of action were available to Congress, the Government was not
obligated under the Due Process Clause “to employ the least burdensome means to
accomplish its goal” in “dealing with deportable aliens.” Id., at 528.
On any given day, Immigration and Customs Enforcement (ICE) detains about 21,000
aliens. More than 200,000 people are detained over the course of a year in any of three
types of facilities—eight (8) run by ICE itself, six (6) run by private companies, and 312
county and municipal jails that have federal contracts and hold about 57 percent of the
detainees. David Crary, Critics Decry Immigrant Detention Push, WASHINGTON POST,
June 24, 2006.
Most detained aliens are not placed in removal proceedings, but, of the aliens who appear
for removal proceedings, most are detained. According to the FY 2005 Statistical
Yearbook of the Executive Office of Immigration Review (EOIR), 90,945 detained aliens
appeared in removal proceedings in fiscal year 2005. This represents 56 percent of the
total number of aliens who appeared for removal proceedings (163,729).
In FY 2005, 106,832 aliens failed to appear. This is 39 percent of the total number of
aliens scheduled for removal hearings. Most of the aliens who failed to appear (55,913)
were scheduled for removal proceedings in Harlingen and San Antonio, Texas.

4

Gregory Fehlings
Deputy Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000175

The Immigration Courts held 26,083 bond/custody redetermination hearings in fiscal year
2005. 36 percent of detained aliens who either DHS or the Immigration Courts released
on bond and/or other conditions of release (7,890) did not appear.
The important immigration-related purpose of detaining aliens in appropriate cases
during the pendency of removal proceedings is plainly evident from the Department of
Justice Inspector General's report in February 2003, which updated and largely
mirrored the results of the Inspector General's 1996 report. In the 2003 report, the
Inspector General found that the former INS had successfully carried out removal orders
and warrants with respect to almost 94% of aliens who had been detained during the
pendency of their removal proceedings. However, in stark contrast, only 13% of final
removal orders and warrants were carried out against non-detained aliens (a group that
includes aliens ordered released by DHS, immigration judges, or the Board). The
Inspector General specifically noted the former INS was successful in removing only 6%
of non-detained aliens from countries that the United States Department of State
identified as sponsors of terrorism; only 35% of non-detained aliens with criminal
records; and only 3% of non-detained aliens denied asylum. Office of the Inspector
General, U.S. Department of Justice, The Immigration and Naturalization Service's
Removal of Aliens Issued Final Orders, Report Number I-2003-004 (Feb. 2003).
Statistics prepared by the Executive Office for Immigration Review also substantiate that
large numbers of respondents who are released on bond or on their own recognizance
fail to appear for their removal hearings before an immigration judge. For the last 4
fiscal years, 37% (FY 2004), 41% (FY 2003), 49% (FY 2002), and 52% (FY 2001) of
such respondents have failed to appear for their scheduled hearings, and the immigration
judges have either issued in absentia removal orders or administratively closed those
removal proceedings. EOIR, FY 2004 Statistical Year Book at H3 (March 2005). 1 These
numbers-- totaling over 52,000 "no-show" aliens in just the last four years after being
released from custody--reflect only those respondents released from custody who fail to
appear for their removal hearings before the immigration judges. (They do not include
the substantial additional number of non-detained aliens who do appear for their
immigration judge hearing, but then fail to surrender after their removal order becomes
final and join the growing ranks of hundreds of thousands of absconders currently at
large.)

1

These EOIR statistics for "released" aliens who are released on bond or on their own recognizance cover
only those aliens who were released from custody after the initiation of removal proceedings against them.
EOIR also tracks a separate category of "non-detained" aliens--including those aliens who were never taken
in custody by DHS at all (such as many asylum applicants) as well as those aliens who had been
apprehended but were released by DHS prior to or at the time of the initiation of removal proceedings
against them. Of those "non-detained" aliens, 38% failed to appear for their removal hearings during the
last 4 fiscal years--a total of almost 130,000 "no-show" aliens in just the last 4 years. FY 2004 Statistical
Year Book at H2.
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II.

TIME AND PLACE FOR BOND/CUSTODY HEARING

The Department of Homeland Security (DHS) initially determines whether an alien will
be detained and determines the amount of bond, if any. 8 C.F.R. § 1236.1(c). This
determination will be made within 48 hours of the alien’s arrest. 8 C.F.R. § 287.3(d);
DHS Undersecretary Asa Hutchinson, “Guidance on ICE Implementation of Policy and
Practice Changes Recommended by the Department of Justice Inspector General” (March
30, 2004), reprinted in 81 Interpreter Releases 513, 528-32 (April 19, 2004). However,
in case of “emergency or other extraordinary circumstance” the determination shall be
made “within an additional reasonable period of time.” Id. Reasons for the determination must be stated. Matter of Dayoush, 18 I&N Dec. 352, 353 (BIA 1982).
DHS has sole authority to determine the place of detention. See INA § 241(g)(1); Van
Dinh v. Reno, 197 F.3d 427, 433 (10th Cir.1999); Committee of Central American
Refugees v. INS, 795 F.2d 1434 (9th Cir.1986), as amended 807 F.2d 769 (9th Cir.1986);
Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir.1985); Sasso v. Milhollan, 735 F.Supp.
1045, 1048 (S.D.Fla.1990).
If DHS decides to detain an alien, the alien may seek release on bond by submitting a
formal written request to DHS stating all the reasons for the alien’s release. 8 C.F.R. §
236.1(d). DHS will consider the request and issue a decision.
After the initial bond/custody determination by DHS, the detained alien or the alien’s
counsel or representative may apply, orally or in writing, for a bond/custody
redetermination by the Immigration Court. 8 C.F.R. §§ 1003.19(b), 1236.1(d). The
controlling provisions for bond/custody redetermination hearings before an Immigration
Judge are found at INA § 236 and 8 C.F.R. §§ 1003.19 and 1236.1. An Immigration
Court with jurisdiction to redetermine bond may either reduce or increase the amount of
the bond set by DHS. See Matter of Spiliopoulos, 16 I&N Dec. 561, 562 (BIA 1978)
([W]e reject the contention advanced by the respondent that the immigration judge lacked
the authority to increase the amount of bond initially set by the District Director.”).
If the alien is not in DHS custody (e.g., alien is in state custody), the Immigration Court
lacks jurisdiction to redetermine bond/custody. Matter of Sanchez, 20 I&N Dec. 223
(BIA 1990); Cruz v. Molerio, 840 F.Supp. 303, 305-06 (S.D.N.Y. 1994) (alien
incarcerated in state prison not entitled to immigration bond hearing). An alien who is on
supervised release, such as the Intensive Supervision Appearance Program (ISAP), is not
in DHS custody. See Nguyen v. B.I. Inc., 435 F.Supp.2d 1109, 1114 (D.Ore. 2006) (“I
conclude that placement in ISAP is not detention. It is a form of supervision that uses no
physical restraints or surveillance, both of which are typical characteristics of
detention.”).

A.

Venue for the Bond Hearing

The application for a bond redetermination hearing is made to one of the following EOIR
offices, in the following order prescribed at 8 C.F.R. § 1003.19:
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1. To the Immigration Court that has jurisdiction over the place of
detention;
2. To the Immigration Court that has administrative control over the case.
See 8 C.F.R. § 3.13 (2000); or,
3. To the Office of the Chief Immigration Judge (OCIJ) for designation of
the appropriate Immigration Court to accept and hear the application.
The Immigration Court may hold a bond/custody redetermination hearing before the
charging document is filed with the court. 8 C.F.R. § 1003.14(a). But the Immigration
Court cannot make a bond determination sua sponte; the alien must apply for a
redetermination. Matter of P-C-M-, 20 I&N Dec. 432, 434 (BIA 1992).

B.

Prompt Bond Hearing

Bond proceedings should be conducted promptly after the alien requests bond
redetermination by the Immigration Court. See Matter of Chirinos, 16 I&N Dec. 276,
277 (1977) (“Our primary consideration in a bail determination is that the parties be able
to place the facts as promptly as possible before an impartial arbiter.”) (emphasis in
original). However, Federal Rule of Criminal Procedure 5(a)—that requires a detainee
held on criminal charges be brought before a magistrate within 48 hours—does not
generally apply to aliens held in civil detention, absent evidence of collusion between
immigration and prosecution authorities. See United States v. Dyer, 325 F.3d 464, 70 (3d
Cir. 2003), cert. denied, 540 U.S. 977 (2003) (explaining the “ruse” exception, but
declining to adopt it because the defendant would not have qualified for the exception);
United States v. Perez-Perez, 337 F.3d 990, 996-97 (8th Cir. 2003), cert. denied, 540 U.S.
927 (2003); United States v. Encarnacion, 239 F.3d 395, 398-99 (1st Cir. 2001), cert.
denied, 532 U.S. 1073 (2001); United States v. Noel, 231 F.3d 833, 837 (11th Cir. 2000),
cert. denied, 531 U.S. 1200 (2001).

C.

Aliens Released by DHS

If DHS has released the alien on bond, the alien must request a bond redetermination by
the Immigration Court within seven (7) days. 8 C.F.R. § 1236.1(d)(1). After the
expiration of the seven-day period, the alien may request amelioration of the conditions
of the alien’s release only from DHS. 8 C.F.R. § 1236.1(d)(2); Matter of Chew, 18 I&N
Dec. 262, 263 (BIA 1982).

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D.

Aliens with a Final Order of Removal

An order of removal becomes administratively final when the alien has waived appeal or
when the BIA has dismissed the alien’s appeal. INA § 101(a)(47)(B); 8 C.F.R. § 3.38(b).
If the alien has an administratively final order of removal or deportation, the Immigration
Court lacks jurisdiction to redetermine bond/custody and the alien must request review of
bond/custody by DHS. See INA § 241(a)(2); 8 C.F.R. §§ 1003.19(a), 1236.1(d)(1);
Matter of Valles, 21 I&N Dec. 769, 772 (BIA 1997) (“The regulations and the Board
mention only two instances where an Immigration Judge is divested of jurisdiction over a
bond proceeding. The first is upon the lapse of the 7-day period following an alien's
release from custody. The second is upon the entry of an administratively final order of
deportation. In those cases, jurisdiction over bond proceedings vests with the district
director.”). The alien may seek review of DHS’s bond/custody determination before the
Board of Immigration Appeals by filing an appeal within ten (10) days. 8 C.F.R. §
1236.1(d)(3)(ii).
The U.S. Court of Appeals for the Ninth Circuit has ordered the Immigration Court to
conduct a bond hearing when the alien’s appeals have delayed the alien’s removal. See
Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (per opinion of Noonan, C.J., and
opinion of Tashima, C.J., concurring in judgment) (ordering bond hearing after delay of
32 months: 7 months for removal proceedings, 13 months for appeal to the BIA, and 12
months for appeal to the circuit court). One federal district court has ordered the
Immigration Court to conduct a bond hearing after a final order of removal because the
district court held that a written decision by DHS is insufficient to satisfy due process.
Del Toro-Chacon v. Chertoff, 431 F.Supp.2d 1135, 1142 (W.D.Wash. 2006) (ordering
bond hearing after delay of 8 months while the circuit court considers alien’s appeal of
the denial of asylum application); but see Marcello v. Bonds, 349 U.S. 302, 311 (1955)
(rejecting claim that custody decision by INS special inquiry officer violates due process
where INS initiates and prosecutes proceedings).

III.

MANDATORY DETENTION

Beginning with the passage of the Anti-Drug Abuse Act of 1988 (“ADAA”) and the
Immigration Act of 1990 (“IMMACT”), and continuing on through the passage of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress has
consistently demonstrated a desire that criminal and terrorist aliens be detained during the
pendency of their proceedings.
In 1988, Congress initially crafted a provision mandating the detention without bond of
an aggravated felon. See ADAA § 7343. Subsequently, in IMMACT, Congress carved
out an exception to mandatory detention for certain lawful permanent resident aggravated
felons provided that the alien could overcome presumptions against release. See Matter
of De La Cruz, 20 I&N Dec. 346 (BIA 1991). In AEDPA, Congress expanded the
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grounds subjecting an alien to mandatory detention pending the outcome of immigration
proceedings and removed the exception created by IMMACT. AEDPA’s requirements,
however, were in effect for only a few months before they were superseded by IIRIRA’s
mandatory detention grounds codified at INA § 236(c)(1).
In response to concerns expressed by the Immigration and Naturalization Service, and
other interested parties, that INS was fiscally unprepared to enforce the detention
mandate imposed by Congress in AEDPA, Congress in IIRIRA afforded INS a transition
period of up to two (2) years during which detention decisions would permit the release
of certain specified criminal and terrorist aliens provided the alien could overcome
statutory presumptions against release.
Thus, for well over a decade, Congress has expressed through legislation the intent that
criminal and terrorist aliens should generally, if not always, be detained until the
completion of their immigration proceedings. The legislation indicates that Congress
views criminal and terrorist aliens as threats to persons and property in the United States
who should be segregated from society until a decision can be made regarding whether
they should be allowed to remain in this nation. Congress views them as poor bail risks
who have little likelihood of relief from removal and who, therefore, have little incentive
to appear for their hearings if they are released from custody regardless of family and
community ties.
In Demore v. Kim, 538 U.S. 510 (2003), upholding the constitutionality of INA §
236(c)(1), the Supreme Court stated that mandatory detention under section 236(c)(1)
“serves the purpose of preventing deportable criminal aliens from fleeing prior to or
during their removal proceedings, thus increasing the chance that, if ordered removed, the
aliens will be successfully removed.” Id., at 528. The BIA had previously identified the
same rationale for this statute in several cases. See, e.g., Matter of Rojas, 23 I&N Dec.
117 (BIA 2001); Matter of Noble, 21 I&N Dec. 672 (BIA 1997).
The purpose of INA § 236(c)(1) is to impose a duty on DHS to continue to detain
criminal and terrorist aliens pending the completion of proceedings to remove the alien
from the United States once the alien is no longer in the custody of another entity.
Section 236(c)(1) provides for the mandatory detention of certain enumerated aliens. It
lists all aliens subject to mandatory detention except for arriving aliens, which are also
subject to mandatory detention as discussed below. Compare INA § 236(c)(1), with INA
§ 235(b)(2)(A). Section 236(c)(1) provides as follows:
The Attorney General shall take into custody any alien who-(A) is inadmissible by reason of having committed any offense covered in
section 212(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in
section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

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(C) is deportable under section 237(a)(2)(A)(i) of this title on the basis of
an offense for which the alien has been sentence to a term of
imprisonment of at least 1 year, or
(D) is inadmissible under section 212(a)(3)(B) of this title or deportable
under section 237(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released
on parole, supervised release, or probation, and without regard to whether
the alien may be arrested or imprisoned again for the same offense.
Under INA § 236(c)(1), aliens who must be detained during removal proceedings include
those who are:
•

•
•
•
•
•
•

inadmissible by reason of having committed any criminal offense covered in
section 212(a)(2), such as a crime involving moral turpitude, multiple criminal
convictions with aggregate sentences of five (5) years, a controlled substance
violation, controlled substance traffickers, or prostitution and commercialized
vice;
deportable by reason of having committed two or more crimes involving moral
turpitude after admission;
deportable for an aggravated felony conviction;
deportable for a controlled substance violation, drug abuse, or drug addiction;
deportable for a firearms or destructive device offense;
deportable for conviction of a crime involving moral turpitude with a term of
imprisonment of at least one year; or
inadmissible or deportable for terrorist activity.

See, e.g., Demore v. Kim, 538 U.S. 510 (2003) (mandatory detention for theft);
Montenegro v. Ashcroft, 355 F.3d 1035, 1037-38 (7th Cir.2003) (mandatory detention for
possession with intent to deliver cocaine); see also Jones v. United States, 463 U.S. 354,
364-65 (1983) (approving civil commitment, based on finding of insanity in criminal trial
for petit larceny, without individualized hearing).
The regulations governing custody proceedings before the Immigration Court expressly
provide that an Immigration Judge may not redetermine the conditions of custody
imposed by DHS with respect to “[a]liens in removal proceedings subject to section
236(c)(1).” See 8 C.F.R. § 1003.19(h)(2)(i)(B).
Criminal aliens who are not subject to mandatory detention under section 236(c)(1)
include aliens removable under INA § 237 for one crime involving moral turpitude, if
they were sentenced to less than one year, and for crimes relating to domestic violence,
stalking, and the abuse or neglect of children. See Michael A. Pearson, INS Executive
Associate Commissioner, “Detention Guidelines Effective October 9, 1998” (October 7,
1998), reprinted in 75 Interpreter Releases 1508, Appendix I (Nov. 2, 1998).
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The Board of Immigration Appeals has determined that, if an alien has committed any of
the offenses covered in INA § 237(a)(2)(A)(ii), (A)(iii), (B), (C) or (D), the alien is
subject to mandatory detention under INA § 236(c)(1) regardless whether DHS has
charged the alien with removability based on the offense. Matter of Kotliar, 24 I&N Dec.
124, 126 (BIA 2007) (citing Matter of Melo, 21 I&N Dec. 883, 885 n. 2 (BIA 1997) (the
phrase “is deportable” does not require an alien to be charged with deportability as an
aggravated felon for the alien to be amenable to mandatory detention under the IIRIRA
transitional rules)).

A.

Exceptions to INA § 236(c)(1)

An alien “described in” INA § 236(c)(1) may be released from detention “only if” the
alien falls within the enumerated exceptions of INA § 236(c)(2). The exceptions provide
that aliens may be released only they are part of the Witness Protection Program or
whose release will protect other witnesses or their immediate family. The alien must
satisfy the Attorney General that he or she will not pose a danger to the safety of other
persons or of property and is likely to appear for hearings. INA § 236(c)(2). The
Immigration Court has no bond/custody redetermination authority over those categories
of aliens defined in INA § 236(c)(1) unless they fall within the enumerated exceptions of
INA § 236(c)(2). See 8 C.F.R. § 1236.1(c)(1)(i).

B.

Joseph Hearing

The Immigration Court lacks jurisdiction to redetermine bond/custody of an alien
released from non-DHS custody after the expiration of IIRIRA’s Transition Period
Custody Rules if the alien is “properly included” in a mandatory detention category under
INA § 236(c)(1). See Matter of Adeniji, 22 I&N Dec. 1102, 1107-11 (BIA 1999).
By regulation, an alien may request a hearing before an Immigration Judge to contest the
DHS determination that the alien is “properly included” in a mandatory detention
category. See 8 C.F.R. §§ 1003.19(h)(1)(ii), 1003.19(h)(2)(ii); Matter of Joseph, 22 I&N
Dec. 660, 670-73 (BIA 1999) (hereinafter Joseph I), clarified by Matter of Joseph, 22
I&N Dec. 799, 805-07 (BIA 1999) (hereinafter Joseph II). This hearing is referred to as a
Joseph hearing. See DeMore, 538 U.S. 510, 514 n. 3 (2003) (citing Joseph II); Gonzalez
v. O'Connell, 355 F.3d 1010, 1013 (7th Cir. 2004). If the Immigration Court finds that
the alien is not subject to INA § 236(c)(1), the court then proceeds to a regular bond
hearing under INA § 236(a). See DeMore, at 532 (Kennedy, J., concurring); O’Connell,
at 1013; Joseph II, 22 I&N Dec. at 806.
An Immigration Court is not bound by the charges in the NTA in determining whether an
alien is “properly included” in the mandatory detention category. Joseph II, 22 I&N Dec.
at 806. However, an Immigration Court’s finding in removal proceedings regarding
removability may properly be relied upon in custody proceedings to determine whether
the mandatory detention ground applies to the alien. Id., at 803. “If this threshold bond
decision is made after the Immigration Judge’s resolution of the removal case, the
Immigration Judge may rely on that underlying merits determination.” Id., at 800.
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The BIA in Joseph II explained that, in determining whether the alien is “properly
included” in a mandatory detention category under INA § 236(c)(1), before proceeding to
the merits of the charges of removability, the Immigration Court considers the future
likelihood that the alien will be found removable under one of the referenced mandatory
detention grounds:
[I]n assessing whether an alien is “properly included” in a mandatory
detention category during a bond hearing taking place early in the removal
process, the Immigration Judge must necessarily look forward to what is
likely to be shown during the hearing on the underlying removal case.
Thus, for example, the failure of the Service to possess a certified copy of
a conviction record shortly after taking an alien into custody would not
necessarily be indicative of its ability to produce such a record at the
merits hearing. And the same could be true of evidence tendered by the
alien during an early bond hearing.
Joseph II, 22 I&N Dec. at 807.
Due process requires that the Government show there is at least “some merit” to the
charge of removability that is grounds for mandatory detention under INA § 236(c)(1).
See DeMore, at 532 (Kennedy, J., concurring); Pisciotta v. Ashcroft, 311 F.Supp.2d 445,
454-55 (D.N.J. 2004) (“[T]here is at least ‘some merit’ to the removal charges underlying
the detention here. … Therefore, consistent with the reasoning in Demore, this Court
finds that … the ongoing detention of Petitioner, a criminal alien in pending removal
proceedings, is constitutionally permissible.”). The Joseph hearing on the viability of the
charge of removability ostensibly satisfies due process. See DeMore, at 514 n. 3
(“Because respondent conceded that he was deportable because of a conviction that
triggers [INA § 236(c)(1)] and thus sought no Joseph hearing, we have no occasion to
review the adequacy of Joseph hearings generally in screening out those who are
improperly detained pursuant to § 1226(c). Such individualized review is available,
however, and Justice SOUTER [in dissent] is mistaken if he means to suggest
otherwise.”).
An alien in mandatory detention during removal proceedings may end his or her
mandatory detention by demonstrating either that he or she is not an alien or that the
Government is otherwise “substantially unlikely” to establish that he or she is in fact
subject to mandatory detention. DeMore, 538 U.S. at 514 n. 3 (citing Joseph II); see 8
C.F.R. § 1003.19(h)(1)(ii) (providing that an alien may seek a “determination by an
Immigration Judge that the alien is not properly included” within INA § 236(c)(1));
Joseph II, 22 I&N Dec. at 806 (“[W]e determine that a lawful permanent resident will not
be considered ‘properly included’ in a mandatory detention category when an
Immigration Judge or the Board is convinced that the Service is substantially unlikely to
establish at the merits hearing, or on appeal, the charge or charges that would otherwise
subject the alien to mandatory detention.”).

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If the alien proves that he or she is not “properly included” in a mandatory detention
category under INA § 236(c)(1) or if the Government fails to satisfy its “minimal,
threshold burden” of showing some merit to the allegation that such a category applies,
then the alien may qualify for discretionary release under INA § 236(a). See DeMore, at
532 (Kennedy, J., concurring); Gonzalez v. O’Connell, 355 F.3d 1010, 1013 (7th Cir.
2004) (“[I]f the IJ determines the alien does not fall within § 1226(c), then he may
consider the question of bond.”); Joseph II, 22 I&N Dec. at 806 (“A determination in
favor of an alien on this issue does not lead to automatic release. It simply allows an
Immigration Judge to consider the question of bond under the custody standards of
section 236(a) of the Act.”).
If the Immigration Court determines that section 236(c)(1) does not apply, the court must
provide factual findings and analysis supporting a discretionary determination of
custody/bond under INA § 236(a). See Joseph II, 22 I&N Dec. at 806, 809; Matter of
Adeniji, 22 I&N Dec. 1102, 1112-16 (BIA 1999). In general, INA § 236(a) allows the
alien’s release, as a matter of discretion, if the alien demonstrates that he or she neither
poses a danger to the community nor a flight risk. Matter of Adeniji, at 1113.

C.

“When the Alien is Released” Clause in INA § 236(c)

Section 236(c)(1) provides that the Attorney General shall take into custody any alien
removable on mandatory grounds of detention “when the alien is released, without regard
to whether the alien is released on parole, supervised release, or probation, and without
regard to whether the alien may be arrested or imprisoned again for the same offense.”
The critical date for the application of the mandatory detention statute is the date that the
alien is released from non-DHS custody, which must be after IIRIRA’s Transition Period
Custody Rules (TPCR) expired on October 8, 1998. Matter of Adeniji, 22 I&N Dec.
1102, 1107-11 (BIA 1999).
An alien is not subject to mandatory detention under INA § 236(c)(1) if the alien was
released from his non-DHS custodial setting on or before October 8, 1998—the
expiration date of the TPCR. See Matter of West, 22 I&N Dec. 1405 (BIA 2000); Matter
of Valdez, 21 I&N Dec. 703, 707-14 (BIA 1997); Matter of Noble, 21 I&N Dec. 672,
677-86 (BIA 1997). If the alien was released on or before October 8, 1998, the alien’s
custody/bond must be determined under the TPCR. See id.; 8 C.F.R. §§ 1003.19(h)(1),
1236.1(c)(ii).
In Matter of West, 22 I&N Dec. 1405 (BIA 2000), the Board of Immigration Appeals
held that an alien who was released from state custody before INA § 236(c) became
effective but was convicted after that date could not be considered “released” for
purposes of applying the statute's mandatory detention provision. The alien in the case
was arrested in April 1997 and charged with various drug offenses, indicted and then
released on bond in December of that year. In February 1999, he pled guilty and was
sentenced to one year of probation for each offense. The Board held that the term
“released” meant release from physical restraint, reasoning that Congress plainly
intended to refer to the release of an alien from a restrictive form of criminal custody
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involving physical restraint. Because the respondent was last released from the physical
custody of the state of New Jersey in December 1997, which was before the TPCR
expired and INA § 236(c) became effective, the Board concluded that he was not subject
to mandatory detention under the statute.
The release from non-DHS custody that triggers mandatory detention can be any form of
physical restraint, such as criminal custody, civil commitment to a mental institution, and
other forms of civil detention. See Matter of West, 22 I&N Dec. at 1410 (“[W]e construe
the word ‘released’ in the last sentence of section 303(b)(2) of the IIRIRA to refer to a
release from physical custody.”); Matter of Adeniji, 22 I&N Dec. at 1108-11 (accepting
the parties’ interpretation of the “released” language of the related provision in IIRIRA as
referring to “aliens who have been released from criminal (and perhaps psychiatric and
other nonService) confinement”). A reading of section 236(c)(1) as a whole does not
suggest that Congress intended to limit the non-DHS custody to criminal custody
pursuant to a conviction for a crime that is the basis for detention under INA § 236(c)(1).
“‘Released’ in this context can also refer to release from physical custody following
arrest ….” Matter of West, 22 I&N Dec. at 1410.
Where the alien is subject to mandatory detention based on removability for a noncriminal ground, there may be no requirement of physical custody at all. Under sections
236(c)(1)(A) and 236(c)(1)(D), an alien need not be convicted of any offense in order to
be removable as charged. For instance, sections 212(a)(2)(A),(C), (D), (E), (G), (H), and
(I), as well as section 212(a)(3)(B) and section 237(a)(4)(B), do not require a criminal
conviction.
According to the BIA, an alien who is released from criminal custody after the expiration
of the Transition Period Custody Rules is subject to mandatory detention even if the alien
is not immediately taken into custody by the government when released from
incarceration. Matter of Rojas, 23 I&N Dec. 117 (BIA 2001).
In Matter of Rojas, the BIA held that an alien was subject to mandatory detention under
236(c)(1), even though INS did not take him into custody immediately upon his release
from state custody. The Board found the “when released” language not part of the
description of an alien who is subject to detention but merely clarifies when the
government has a duty to take the alien into immigration custody. Finding that the other
statutory provisions pertaining to the removal process do not place significance on when
INS takes an alien into custody, the Board concluded that “the ‘when released’ issue is
irrelevant for all other immigration purposes.” Id., at 122. The Board explained: “There
is no connection in the [INA] between the timing of an alien's release from criminal
incarceration, the assumption of custody over the alien by the Service, and the
applicability of any of the criminal charges of removability.” Id. The Board found: “The
history of the statutory mandate to detain criminal aliens does not indicate to us that
Congress had a different meaning in mind.” Id. The Board concluded that it would not
be consistent with its understanding of the INA’s “design” to construe 236(c)(1) so that it
“permits the release of some criminal aliens, yet mandates the detention of others

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convicted of the same crimes, based on whether there is a delay between their release
from criminal custody and their apprehension by the Service.” Id., at 124.
The Board took issue with the decision of the U.S. District Court for the Western District
of Washington in Pastor-Camarena v. Smith, 977 F. Supp. 1415 (W.D.Wash. 1997), and
the other district court decisions that held that aliens must be taken into custody for
removal proceedings upon release from state custody. The Board criticized PastorCamarena for adopting “an incorrect ‘historical’” approach based on the notion that
immigration law historically distinguished between persons taken into custody from the
community at large and those taken into custody directly upon release from the criminal
justice system. Id., at 125-26. Pastor-Camarena and its progeny, the Board found, did
not lead it “to reject the interpretation that we otherwise find appropriate in view of the
statute as a whole.” Id., at 126. The Board has also stated that it is not bound to follow
the published decision of a federal district court even in cases arising in the same district.
See Matter of K-S-, 20 I&N Dec. 715, 718-20 (BIA 1993).
The BIA’s interpretation of 236(c)(1) in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001),
has not been adopted by most federal district courts that have considered whether
236(c)(1) applies when there is an interval between an alien’s release from nonimmigration custody and being taken into the custody of DHS. Most federal district
courts have held that the “plain language” of 236(c)(1) dictates a temporal requirement
that DHS must pick up aliens “when the alien is released” and if Congress intended
another interpretation, it would have used other language. These courts are located in
California, Oregon, Washington, Virginia, New Jersey and Pennsylvania. See Roque v.
Chertoff, No. C06 0156 TSZ, 2006 WL 1663620 (W.D.Wash. June 12, 2006); Boonkue
v. Ridge, No. CV 04-566-PA, 2004 WL 1146525, at *1-2 (D.Ore. 2004); Zabadi v.
Chertoff, No. C 05-03335 WHA, 2005 WL 3157377, at *4-5 (N.D.Cal. Nov 22, 2005);
Quezada-Bucio v. Ridge, 317 F.Supp.2d 1221, 1228 (W.D.Wash. 2004) (“[B]ecause
Petitioner was taken into immigration custody years after he was released from state
custody, as opposed to ‘when [he was] released’ from that custody, INA § 236(c) does
not apply.”), further proceedings 161 Fed.Appx. 714 (W.D.Wash. Jan. 6, 2006), appeal
pending No. 04-70891 (9th Cir. 2006); Tenrreiro v. Ashcroft, 2004 WL 1354277, *2
(D.Ore. Jun 14, 2004) (relying on Quezada-Bucio), vacated and transferred on
reconsideration, 2004 WL 1588217 (D.Ore. Jul 12, 2004) (vacated on jurisdictional
grounds); Alikhani v. Fasano, 70 F.Supp.2d 1124 (S.D.Cal. 1999) (finding that “when”
means “just after the moment that” so that mandatory detention only applies to aliens
who are detained at the time of their release); Velasquez v. Reno, 37 F.Supp.2d 663, 672
(D.N.J. 1999) (holding that the plain language of the statute provides that an alien is to be
taken into custody at the time the alien is released); Grant v. Zemski, 54 F.Supp.2d 437,
443 (E.D.Pa. 1999); Aguilar v. Lewis, 50 F.Supp.2d 539, 544 (E.D.Va.1999); Alwaday v.
Beebe, 43 F.Supp.2d 1130, 1133 (D.Ore. 1999); Velasquez v. Reno, 37 F.Supp.2d 663,
672 (D.N.J. 1999); Pastor-Camarena v. Smith, 977 F.Supp. 1415, 1417 (W.D.Wash.
1997).
Only the federal district courts in Texas have concluded that section 236(c)(1) does not
provide a temporal limitation on the authority of DHS to take aliens into mandatory
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detention upon their release from non-DHS custody. See Okeke v. Pasquarell, 80 F.
Supp. 2d 635 (W.D.Tex. 2000); Serrano v. Estrada, 201 F.Supp. 714 (N.D.Tex. 2002)
(holding that there is no retroactivity concern with the application of INA § 236(c)(1) to
aliens taken into detention after the IIRIRA permanent rules became effective). The
Ninth Circuit, however, has found that a prior version of 236(c)(1) that used the phrase
“upon release” did not require INS to take aliens into custody immediately upon their
release from non-immigration custody. See. California v. United States, 104 F.3d 1086,
1094-95 (9th Cir.1997) (“upon release” language of predecessor statute does not require
immigration authorities to take aliens into custody immediately upon their release from
state incarceration; decision of when to arrest criminal aliens is committed to agency
discretion and is not reviewable), cert. denied, 522 U.S. 806 (1997).
At least two federal district courts have stated that DHS has a reasonable period of time
under INA § 236(c)(1) to pick up an alien upon release from state custody. See Zabadi v.
Chertoff, No. C 05-03335 WHA, 2005 WL 1514122, at *5 (N.D.Cal. 2005) (“This order
holds that the Department of Homeland Security need not act immediately but has a
reasonable period of time after release from incarceration in which to detain.”); Grodzki
v. Reno, 950 F.Supp. 339, 342 (N.D.Ga.1996) (language “upon release … from
incarceration” implies custody commences within reasonable time after release from
incarceration). Another court upholding mandatory detention under section 236(c)(1) has
distinguished the facts of its case from other federal district court cases based on the
length of delay been the alien’s release from non-DHS/INS custody and the assumption
of custody by DHS/INS. See Serrano v. Estrada, No. 3-01-CV-1916-M, 2002 WL
485699, at *3 (N.D.Tex. March 6, 2002) (“petitioner was taken into INS custody just six
months after his release from prison”).

D.

Arriving Aliens

The Immigration and Nationality Act provides that aliens who are seeking admission to
the United States and are subject to grounds inadmissibility must be detained if they do
not appear to the inspecting immigration officer to be “clearly and beyond a doubt”
entitled to enter. See INA § 235(b)(2)(A). The Immigration Court lacks jurisdiction to
redetermine custody/bond for arriving aliens. 8 C.F.R. §§ 236.1(c)(11), 1003.19(h)(2)
(i)(B).
Exceptions exist for crewman, stowaways and certain aliens subject to expedited
removal, who may be subject to detention under other provisions of law. See INA §§
235(b)(2)(B), 252(b) (crewmen), 235(a)(2) (stowaways), 235(b)(1)(B)(iii)(IV); Matter of
X-K-, 23 I&N Dec. 731 (BIA 2005) (alien amenable to expedited removal who was
found to have credible fear and placed in removal proceedings was entitled to bond
hearing). Another exception exists for aliens arriving at the land border with Canada or
Mexico whom DHS has returned to Canada or Mexico to await their removal hearing,
rather than be detained. See INA §§ 235(b)(2)(C).
Refugees are subject to detention one year after they are conditionally admitted to the
United States if they have not adjusted status to that of a lawful permanent resident alien.
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See INA § 209(a)(1); Omanovic v. Crawford, 2006 WL 2256630 (D.Ariz. Aug 07, 2006)
(No. CV 06-0208-PHX); Andric v. Crawford, 2006 WL 1544184 (D.Ariz. May 31, 2006)
(No. CV06-0002-PHX-SRB). Such refugees are properly detained for inspection and
examination regarding admissibility. Id.
Detention is the norm for arriving aliens. “Congress intended that detention be the
‘default’ choice, and parole a discretionary exception.” Barrera-Echavarria v. Rison, 44
F.3d 1441, 1446 (9th Cir. 1995) (en banc), cert. denied, 516 U.S. 976 (1995). “[I]n the
case of an alien who is an applicant for admission, if the examining immigration officer
determines that an alien seeking admission is not clearly and beyond a doubt entitled to
be admitted, the alien shall be detained for a [removal] proceeding under section 240 of
this title.” INA § 235(b)(2)(A) (emphasis added); see Tineo v. Ashcroft, 350 F.3d 382,
385-386 (3d Cir. 2003) (applying this provision to a returning LPR who was removable
for his criminal convictions).
An arriving alien has the burden of proving that he or she is “clearly and beyond doubt
entitled to be admitted and is not inadmissible under section 212.” INA § 240(c)(2), 8
C.F.R. § 1240.8(c). 2 “An alien’s freedom from detention is only a variation on the
alien’s claim of an interest in entering the county.” Clark v. Smith, 967 F.2d 1329, 1332
(9th Cir. 1992) (upholding INS detention of alien seeking entry to the United States,
during INS appeal from IJ decision granting withholding).
The decision to detain or release arriving aliens on parole, pending a determination of
their admissibility, is within the sole discretion of the Department of Homeland Security.
See 8 C.F.R. § 212.5. In enacting IIRIRA, the House Judiciary Committee stated that
parole is to be used sparingly:
Parole should only be given on a case-by-case basis for specified urgent
humanitarian reasons, such as life-threatening humanitarian medical
emergencies, or for specified public interest reasons, such as assisting the
government in a law-enforcement-related activity. It should not be used to
circumvent Congressionally-established immigration policy or to admit
2

The Government has the burden of proving the inadmissibility of arriving aliens with a colorable claim to
lawful permanent residence, according to preexisting law. See Landon v. Plasencia, 459 U.S. 21, 35
(1982); Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988). A returning permanent resident alien is
regarded as an “arriving alien” seeking admission if the alien falls within one of the following categories of
INA § 101(a)(13)(C):
a. has abandoned or relinquished that status;
b. has been absent from the United States for a continuous period in excess of 180 days;
c. has engaged in illegal activity after having departed the United States;
d. has departed from the United States while under legal process seeking removal of the alien from
the United States, including removal proceedings under the INA and extradition proceedings;
e. has committed an offense identified in section 212(a)(2) of the Act, unless since such offense
the alien has been granted relief under sections 212(h) or 240A(a) of the Act, or;
f. is attempting to enter at a time or place other than as designated by immigration officers or has
not been admitted to the United States after inspection and authorization by an immigration
officer.

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aliens who do not qualify for admission under established legal
immigration categories.
H.R. Rep. 104-469(I) March 4, 1996, 104th Cong., 2nd Sess. 1996, 1996 WL 168955, at
141 (Immigration in the National Interest Act of 1995); see also Haddam v. Reno, 54
F.Supp.2d 602, 609 (E.D.Va. 1999) (alien bears a “heavy” burden of showing that the
public interest warrants parole).
The regulations governing custody proceedings before the Immigration Court expressly
provide that an Immigration Judge may not redetermine the conditions of custody
imposed by DHS with respect to arriving aliens in removal proceedings. See 8 C.F.R. §
1003.19(h)(2)(i)(B). The Board of Immigration Appeals has already held that an
Immigration Court has no authority under the regulations over the custody and detention
of arriving aliens and is without regulatory authority to consider the bond request of an
arriving alien. See Matter of X-K-, 23 I&N Dec. 731, 732 (BIA 2005) (“There is no
question that Immigration Judges lack jurisdiction over arriving aliens who have been
placed in section 240 removal proceedings, because they are specifically listed at 8
C.F.R. § 1003.19(h)(2)(i)(B) as one of the excluded categories.”); Matter of Oseiwusu, 22
I&N Dec. 19, 20 (BIA 1998).
Moreover, the BIA’s decision in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999), appears
to be inapplicable to custody proceedings involving aliens designated by the DHS as
arriving aliens because 8 C.F.R. § 1003.19(h)(2)(ii), the regulation upon which this Board
relied in Joseph, does not provide authority for an Immigration Judge to make a
determination that an alien is improperly included within 8 C.F.R. § 1003.19(h)(2)(i)(B).
In this regard, 8 C.F.R. §§ 1003.19(h)(2)(i)(B) and 1003.19(h)(2)(ii), prohibiting an
Immigration Judge from inquiring into whether an alien is properly designated as an
arriving alien for purposes of asserting jurisdiction over the custody proceeding of an
alien designated as an arriving alien by the DHS, are consistent with long-standing
immigration law. See Matter of Lepofsky, 14 I&N Dec. 718, 718 (BIA 1974); Matter of
Conceiro, 14 I&N Dec. 278, 279-82 (BIA 1973), aff’d, Conceiro v. Marks, 360 F.Supp.
454 (S.D.N.Y. 1973).
Judicial review of the DHS or the Attorney General’s decision to deny parole is a highly
deferential one that need determine only whether there is a “facially legitimate and bona
fide reason” supporting the decision. See Jean v. Nelson, 472 U.S. 846, 853 (1985);
Fiallo v. Bell, 430 U.S. 797, 798-99 (1977); Kleindienst v. Mandel, 408 U. S. 753, 770
(1972); Haddam v. Reno, 54 F. Supp. 2d 602, 608-09 (E.D.Va. 1999) (the deferential
review “requires only that the district director articulate a permissible reason for his
action and identify the factual basis in the record for that reason”). “If such a reason is
advanced, the denial of parole is essentially unreviewable.” Nadarajah v. Gonzales, 443
F.3d 1069, 1082 (9th Cir. 2006) (citing Noh v. INS, 248 F.3d 938, 942 (9th Cir.2001)).

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VI.

INDEFINITE DETENTION

Two federal circuit courts have concluded that DHS cannot detain an alien indefinitely,
or for a prolonged period of time, without affording the alien an opportunity to have the
Immigration Court make an individualized custody/bond determination under INA §
236(a) and 8 C.F.R. § 1003.19(d). See Nadarajah v. Ashcroft, 443 F.3d 1069 (9th Cir.
2006); Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005); Ly v. Hansen, 351 F.3d 263 (6th
Cir.2003).
In these decisions, the circuit courts read the Supreme Court’s five-to-four majority
decision in Demore v. Kim, 538 U.S. 510, 514 (2003), as authorizing mandatory
detention of removable aliens only for “the brief period necessary for their removal
proceedings.” See Nadarajah, 443 F.3d at 1080; Ly, 351 F.3d at 270-71. The Supreme
Court had noted that removal proceedings normally proceed expeditiously:
The Executive Office for Immigration Review has calculated that, in 85%
of the cases in which aliens are detained pursuant to [INA § 236(c)],
removal proceedings are completed in an average time of 47 day and a
median of 30 days. In the remaining 15% of cases, in which the alien
appeals the decision of the Immigration Judge to the Board of Immigration
Appeals, appeal takes an average of four months, with a median time that
is slightly shorter.
Demore, 538 U.S. at 529 (internal citations omitted).
Justice Anthony Kennedy provided the fifth vote for the majority and he wrote that there
exists a point at which the length of detention becomes so egregious that it can no longer
be said to be “reasonably related” to an alien's removal. Id., at 532 (Kennedy, J.,
concurring). He stated that “since the Due Process Clause prohibits arbitrary
deprivations of liberty, a lawful permanent resident alien such as respondent could be
entitled to an individualized determination as to his risk of flight and dangerousness if the
continued detention became unreasonable or unjustified.” Id., at 532 (Kennedy, J.,
concurring).
In Nadarajah v. Ashcroft, 443 F.3d 1069 (9th Cir. 2006), the U.S. Court of Appeals for
the Ninth Circuit, ordered the release on parole of an arriving, inadmissible alien who had
been detained for nearly five years pending the completion of his removal proceedings.
The case had been certified to the Attorney General for review after the BIA upheld the
Immigration Court’s decision granting asylum and protection under the Convention
Against Torture. The Ninth Circuit held that DHS abused its decision in not granting
parole, and the circuit ordered the alien’s release.
The Ninth Circuit concluded that DHS cannot detain an alien indefinitely when there is
no significant likelihood of his removal in the reasonably foreseeable future. The Ninth
Circuit applied the six-month limitation on post-final-order detention from Zadvydas v.
Davis, 533 U.S. 678 (2001), and Clark v. Martinez, 543 U.S. 371 (2005), to pre-final19

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order detention. The circuit stated: “[W]e conclude that after a presumptively reasonable
six-month detention, once the alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future, the Government
must respond with evidence sufficient to rebut that showing.” 443 F.3d at 1078.
The Ninth Circuit decision in Nadarajah seems most clearly to apply to an alien detained
more than six months who has been granted relief or found non-removable by the
Immigration Court. But it may also affect those cases where DHS has detained an alien
more than six months without a ruling on removability from the Immigration Court. In
those cases, DHS might be forced to present its case in district court on a petition for
writ of habeas corpus for the district court to decide whether “there is no significant
likelihood of removal in the reasonably foreseeable future.” Id., at 1079-80 .
The Ninth Circuit in Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), also recognized a
limitation on the duration of detention during removal proceedings. The alien had been
deprived of his liberty by DHS for a period of over two years and eight months under
INA § 236(c)(1). In a brief, three-paragraph opinion, a divided panel of the Ninth Circuit
recognized the “substantial powers” of Congress with regard to aliens but found it
“constitutionally doubtful that Congress may authorize imprisonment of such duration for
lawfully admitted resident aliens who are subject to removal.” Id., at 1242 (per opinion
of Noonan, C.J., and opinion of Tashima, C.J., concurring in judgment). Consequently,
the court remanded to the district court with directions to grant the writ of habeas corpus
unless the government within 60 days provided the alien with a bond hearing before an
Immigration Judge.
The Sixth Circuit in Ly v. Hansen, 351 F.3d 263, 270 (6th Cir. 2003), observed that the
Supreme Court's decision in Demore “specifically indicated that [detentions pending
removal] were usually relatively brief, but it did not specifically hold that any particular
length of time in a specific case would be unreasonable or unconstitutional.” The Sixth
Circuit concluded that the proper interpretation of Demore was to “[construe] the preremoval detention statute to include an implicit requirement that removal proceedings be
concluded within a reasonable time, [thereby avoiding] the need to mandate the procedural
protections that would be required to detain deportable aliens indefinitely.” Ly, at 270.
Therefore, the Sixth Circuit “affirm[ed] the grant of habeas corpus and the district court's
finding that the incarceration for 18 months pending removal proceedings is unreasonable,
[without requiring] the United States to hold bond hearings for every criminal alien detained
under § 236.” Id. The court stressed that Ly's case was not the norm in part because his
deportation to Vietnam was not foreseeable due to that country's lack of a repatriation
agreement with the United States. When actual removal is not reasonably foreseeable,
deportable aliens may not be detained indefinitely without a showing of a “strong special
justification” by the government that overbalances the alien's liberty interest. Id., at 273.
At least one circuit court, however, has declined to distinguish Demore and to apply the
principles of Zadvydas to find prolonged detention under section 236(c) unconstitutional,
regardless of the length of the alien's detention. In Soberanes v. Comfort, 388 F.3d 1305
(10th Cir.2004), the Tenth Circuit found the detention of more than two years pending
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judicial review of a final removal order “neither indefinite nor potentially permanent like the
detention held improper in Zadvydas” but rather “directly associated with a judicial review
process that has a definite and evidently impending termination point” which was more
“more akin to detention during the administrative review process” upheld in Demore. 388
F.3d at 1311.
In any event, the remedy for a violation of due process by indefinite detention under INA §
236(c)(1) is a custody/bond hearing before the Immigration Court. See Tijani v. Willis, 430
F.3d 1241, 1242 (9th Cir. 2005) (“We remand to the district court with directions to grant
the writ unless the government within 60 days of this order provides a hearing to Tijani
before an Immigration Judge with the power to grant him bail unless the government
establishes that he is a flight risk or will be a danger to the community.”); Ly v. Hansen,
351 F.3d 263, 265 (6th Cir.2003). Federal courts have upheld lengthy detention when the
alien had been afforded a custody/bond hearing before an Immigration Court. See, e.g.,
Doherty v. Thornburgh, 943 F.2d 204, 209-11 (2d Cir. 1991) (upholding detention without
bond of criminal alien pending deportation, even though detention was prolonged for 8
years), cert. dismissed sub nom. Doherty v. Barr, 503 U.S. 901 (1992); Agyeman v. INS
Assistant District Director Coachman, 74 Fed.Appx. 691, at *1 (9th Cir. 2003) (“Even
though Agyeman has been detained by the INS for over six years, his detention is
constitutionally valid.”).

V.

DISCRETIONARY DETENTION UNDER INA § 236(a)

If a detained alien is not required to be detained under INA § 236(c)(1)’s mandatory
detention provisions, INA § 236(a) “provides general authority for the detention of aliens
pending a decision on whether they should be removed from the United States.” Matter
of Guerra, 24 I&N Dec. 37, 37-38 (BIA 2006).
The Supreme Court noted over 50 years ago that Congress placed discretion in the
Attorney General to detain aliens without bond: “[D]iscretion was placed by the 1950
[Internal Security] Act in the Attorney General to detain aliens without bail.” Carlson v.
Landon, 342 U.S. 524, 539 (1952) (interpreting § 23 of the Internal Security Act). INA §
236(a) is “virtually identical” to the pertinent section of the 1950 Internal Security Act.
United States ex rel. Barbour v. District Director, 491 F.2d 573, 577 (5th Cir. 1974)
(“The wording in Section 242(a) [now Section 236(a)] is virtually identical to that in
Section 23 of the Internal Security Act of 1950.”). Thus, INA § 236(a) provides the same
authority to detain aliens without bond that the Supreme Court recognized long ago.
On the other hand, INA § 236(a) gives the Attorney General discretionary authority to
release the alien on bond if the Attorney General concludes, in the exercise of his broad
discretion, that the detainee’s release on bond is warranted:
[S]ection 236(a) of the Act merely gives the Attorney General the
authority to grant bond if he concludes, in the exercise of discretion, that
the alien’s release on bond is warranted. The courts have consistently
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recognized that the Attorney General has extremely broad discretion in
deciding whether or not to release an alien on bond.
Matter of Guerra, 24 I&N Dec. 37, 39 (BIA 2006); see also United States ex rel. Barbour
v. District Director, 491 F.2d 573, 578 (5th Cir. 1974) (release on bail is a form of
discretionary relief); Makarian v. Turnage, 624 F.Supp. 181 (S.D.Cal. 1985) (Attorney
General has “wide discretion in determining whether and under what conditions to
release person pending final deportability determination”).
Immigration Judges now exercise this discretionary authority. INA § 236(a) empowers
the Attorney General to delegate to Immigration Judges the discretionary authority either
to continue to detain or to release an alien in removal proceedings, pending an
administratively final order of removal. See INA §§ 101(b)(4), 236(a). “The Attorney
General has delegated this authority to the Immigration Judges.” Matter of Guerra, 24
I&N Dec. at 38; compare 8 C.F.R. § 1003.10 (IJs exercise powers assigned by the
Attorney General), with 8 C.F.R. § 1003.19(a) (IJs have power to conduct bond
hearings).

A.

Classes of Aliens for which Attorney General Has
Withheld Discretion to Release

The Immigration Courts are without authority to redetermine the conditions of custody
for certain classes of aliens listed in the regulation at 8 C.F.R. § 1003.19(h)(2)(i)(D). See
8 C.F.R. §§ 236.1(c)(11). Some of these classes of aliens are subject to mandatory
detention. See INA §§ 236(c)(1), 235(b)(2)(A). Others are not. Nevertheless, the
Attorney General has, by regulation, exercised his discretionary authority under INA §
236(a) not to release those classes of aliens. See Procedures for the Detention and
Release of Criminal Aliens by the Immigration and Naturalization Service and for
Custody Redeterminations by the Executive Office for Immigration Review, 63 Fed.Reg.
27441, 27443 (May 19, 1998) (citing cases in support of the proposition: “Agencies may
resolve matters of general applicability through the promulgation of rules even if a
statutory scheme requires individualized determination unless Congress has expressed an
intent to withhold that authority.”); cf. Matter of D-J-, 23 I&N Dec. 572, 583 (AG 2003)
(“The Attorney General is broadly authorized to detain respondent and deny his request
for bond, based on any reasonable consideration individualized or general, that is
consistent with the Attorney General’s statutory responsibilities.”). Therefore, the classes
of aliens listed in 8 C.F.R. § 1003.19(h)(2) are excluded from the Immigration Courts’
custody jurisdiction under INA § 236(a). Matter of X-K-, 23 I&N Dec. 731, 732 (BIA
2005).
The regulation provides as follows:
(i) Upon expiration of the Transition Period Custody Rules set forth in
section 303(b)(3) of Div. C. of Pub.L. 104-208, [on October 8, 1998] an
immigration judge may not redetermine conditions of custody imposed by
the Service with respect to the following classes of aliens:
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(A) Aliens in exclusion proceedings;
(B) Arriving aliens in removal proceedings, including aliens paroled after
arrival pursuant to section 212(d)(5) of the Act;
(C) Aliens described in section 237(a)(4) of the Act [“Security and related
grounds”];
(D) Aliens in removal proceedings subject to section 236(c)(1) of the Act
(as in effect after expiration of the Transition Period Custody Rules) [on
October 8, 1998]; and
(E) Aliens in deportation proceedings subject to section 242(a)(2) of the
Act (as in effect prior to April 1, 1997, and as amended by section 440(c)
of Pub.L. 104-132) [aliens convicted of an aggravated felony].
(ii) Nothing in this paragraph shall be construed as prohibiting an alien
from seeking a redetermination of custody conditions by the Service in
accordance with part 1235 or 1236 of this chapter. In addition, with
respect to paragraphs (h)(2)(i)(C), (D), and (E) of this section, nothing in
this paragraph shall be construed as prohibiting an alien from seeking a
determination by an immigration judge that the alien is not properly
included within any of those paragraphs.
8 C.F.R. § 1003.19(h)(2)(i).
The phrase “described in” in this regulation implies a broad reading of the detention
ground stated in the referenced statute; the phrase does not require that the alien be
charged with removability under INA § 237(a)(4). Cf. United States v. Barial, 31 F.3d
216, 218 (4th Cir. 1994) (as used in a criminal probation statute, “described in” is a “a
term that necessarily calls for a broader reading” and means that “the focus is upon the
type of conduct involved”).

B.

Burden of Proof

An alien detained pending a decision as to whether he or she is to be removed from the
United States does not have a right to be released on bond. Matter of Guerra, 24 I&N
Dec. 37, 39 (BIA 2006); Matter of D-J-, 23 I&N Dec. 572, 575 (AG 2003). The old legal
standard for bond hearings set forth in by the BIA in Matter of Patel, 15 I&N Dec. 666
(BIA 1976), which held that there is a presumption against detention, is no longer the
correct legal standard. That precedent decision involved the application of a detention
statute that is no longer in effect. See Matter of Valdez, 21 I&N Dec. 703, 716-17 (BIA
1997) (discussing Matter of Patel).

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Bond hearings are now typically governed by INA § 236(a). In discretionary bond
determinations under INA § 236(a), an alien in removal proceedings has the burden of
demonstrating that the alien’s release would not pose a danger and that the alien is likely
to appear for any future hearings and possible removal:
An alien in a custody determination under [INA § 236(a)] must establish
that he or she does not present a danger to persons or property, is not a
threat to the national security, and does not pose a risk of flight. An alien
who presents a danger to persons or property should not be released during
pendency of removal proceedings.
Matter of Guerra, 24 I&N Dec. 37, 38 (BIA 2006); see Matter of Adeniji, 22 I&N Dec.
1102, 1111-1112 (BIA 1999) (citing 8 C.F.R. § 1236.1(c)(8)) (an alien in removal
proceedings has the burden of demonstrating that the alien’s “release would not pose a
danger to persons or property and that the alien is likely to appear for any future
proceeding”).

1. Threat to National Security
An alien who poses a threat to national security should be detained as a matter of
discretion. See Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991) (“Although
Doherty does not appear to pose any direct threat to individual citizens, we already have
noted that, due to his PIRA affiliation, he may constitute a more general threat to national
security, [citation omitted], which is also a proper basis for detention, [citation omitted].
We believe that these considerations provide a valid basis for the continuing denial of
bail under section 1252 [now INA section 236(a)], notwithstanding the unusually long
detention that has resulted.”), cert. dismissed, 503 U.S. 901 (1992); United States ex rel.
Barbour v. INS, 491 F.2d 573, 578 (5th Cir. 1974) (“There is no question of the Attorney
General’s discretion under Section 242(a) [now Section 236(a)] of the Act to continue an
alien in custody during deportation proceedings upon a properly-made determination that
the release of an alien would be a danger to the national security of the United States.”).
In matters involving national security, DHS may consider a wide range of information
about the alien to determine whether the alien should be released. Such evidence may
include membership in or affinity for organizations that advocate a philosophy of
violence against the United States and its allies, and any law enforcement or intelligence
information indicating that the alien has promoted or engaged in terrorist-related
activities. See Carlson v. Landon, 342 U.S. 524, 541 (1952); Haddam v. Reno, 54 F.
Supp.2d 602, 610 (E.D.Va. 1999) (upholding district director’s decision to deny parole to
alien who posed a national security risk and a risk of absconding; “the district director
has pointed to information from the Department of State, the F.B.I., and Interpol
suggesting Haddam’s association with terrorism and other violent activities”). The reader
should refer to ICE OPLA’s National Security Law Division materials for further
information about national security grounds for detention.

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2. Danger to the Community
A detained alien in removal proceedings must establish that he or she does not present a
danger to persons or property before the issue of his or her flight risk, and the amount of
bond necessary to ensure his or her presence at removal proceedings, become relevant.
See Matter of Adeniji, 22 I&N Dec. 1102, 1113 (BIA 1999) (in bond proceedings under
section 236(a) of the Act, “the alien must demonstrate that ‘release would not pose a
danger to property or persons’”) (citing Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA
1994) (“First, if the alien cannot demonstrate that he is not a danger to the community
upon consideration of the relevant factors, he should be detained in the custody of the
Service. [Citations omitted] However, if an alien rebuts the presumption that he is a
danger to the community, then the likelihood that he will abscond becomes relevant.”)).
“An alien who presents a danger to persons or property should not be released during
pendency of removal proceedings.” Matter of Guerra, 24 I&N Dec. 37, 38 (BIA 2006).
An alien convicted of an aggravated felony who was released from criminal custody
before October 8, 1998, is not subject to mandatory detention under INA § 236(c)(1) but
is presumed to pose a danger to persons or property and is to be held without bond unless
the alien proves otherwise. Compare Matter of Adeniji, 22 I&N Dec. 1102, 1107-13
(BIA 1999) (holding that INA section 236(c)(1) requires mandatory detention of a
criminal alien only if he or she is released from criminal custody after the TPCR expired
on October 8, 1998), with Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA 1994) (stating
presumption), and Matter of Noble, 21 I&N Dec. 672, 673-86 (BIA 1997) (same).
Danger to persons or property is not limited to the threat of violence. It includes drug
trafficking. See Matter of Guerra, 24 I&N Dec. 37, 41 (BIA 2006) (upholding IJ decision
to detain alien without bond based on criminal complaint that the alien was involved in
an alleged controlled substance trafficking scheme); Matter of Melo, 21 I&N Dec. 883,
885 n. 2 (BIA 1997) (holding that distribution of drugs is a danger to the safety of
persons that requires his detention); Matter of Drysdale, 20 I&N Dec. 815, 818 (BIA
1994) (commission of a serious drug trafficking crime presents a danger to the
community). It also includes non-violent property crimes. See Jones v. United States,
463 U.S. 354, 364-65 (1983) (approving civil commitment based on finding of insanity in
criminal trial for petit larceny: “The fact that a person has been found, beyond a
reasonable doubt, to have committed a criminal act certainly indicates dangerousness. …
We do not agree with petitioner's suggestion that the requisite dangerousness is not
established by proof that a person committed a non-violent crime against property. This
Court never has held that ‘violence,’ however that term might be defined, is a prerequisite
for a constitutional commitment.”).
The duty of the alien’s counsel to disclose the danger posed by his client is a developing
area of law. The American Bar Association (ABA) Model Code of Professional
Responsibility (1969) and the ABA Model Rules of Professional Conduct (1983) permit
disclosure when a client threatens to seriously injure or kill a third person, but do not
require it. See ABA Model Code DR 4-101(C) (“A lawyer may reveal ... [t]he intention
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of his client to commit a crime and the information necessary to prevent the crime.”);
ABA Model Rule 1.6(b)(1) (“A lawyer may reveal such information to the extent the
lawyer reasonably believes necessary ... to prevent the client from committing a criminal
act that the lawyer believes is likely to result in imminent death or substantial bodily
harm.”). Most jurisdictions have enacted the ABA version of this permissive rule.
However, at least a dozen jurisdictions require a lawyer to reveal client confidential
information to prevent the client from inflicting serious bodily harm or death upon a third
party. See Ariz. S. Ct. Rule 42 RPC 1.6(b); Conn. RPC 1.6(b); Fla. St. Bar Rule 4-1.6(b);
Ill. St. S. Ct. RPC 1.6; Nev. St. S. Ct. RPC 156(2); N.J. R. RPC 1.6(b)(1); N.M. R. RPC
16-106(B); N.D. R. RPC 1.6(a); Tex. St. RPC 1.05; Va. R. S. Ct. Pt. 6 § 2, C.P.R. DR. 4101; Wash. St. RPC 1.6(b)(1); Wis. St. RPC S.C.R. 20:1.6.
There are no reported cases where a court has imposed pecuniary liability on a lawyer for
failure to warn a third party of a client’s threats to seriously harm or kill the third party.
See Note, Lawyers and Domestic Violence: Raising the Standard of Practice, 9 MICH. J.
OF GENDER AND LAW 207, 232 (2003); Davalene Cooper, The Ethical Rules Lack Ethics:
Tort Liability When a Lawyer Fails to Warn a Third Party of a Client’s Threat to Cause
Serious Physical Harm or Death. 36 IDAHO L. REV. 479, 481 (2000). Courts, however,
have considered the issue with respect to other professional relationships, notably the
mental health therapist-patient relationship, and have found liability when the
professional has failed to warn a victim when the professional learned that the client or
patient intended to cause serious harm to a specific, identifiable victim. See, e.g.,
O'Keefe v. Orea, 731 So. 2d 680, 684-86 (Fla. Dist. Ct. App. 1st Dist. 1998), review
denied, 725 So. 2d 1109 (Fla. 1998); Petersen v. State, 100 Wash.2d 421, 426-29, 671
P.2d 230, 236-37 (1983); Tarasoff v. Regents of University of California, 13 Cal.3d 177,
118 Cal.Rptr. 129, 132-33, 529 P.2d 553, 557-58 (1976). Courts could begin to impose
liability on lawyers without forewarning. See State v. Hansen, 122 Wash.2d 712, 721,
862 P.2d 117, 122 (1993) (“Whether a threat is a true or real threat is based on whether
the attorney has a reasonable belief that the threat is real. We hold that attorneys, as
officers of the court, have a duty to warn of true threats to harm members of the judiciary
communicated to them by clients or by third parties.”) (distinguishing Hawkins v. King
County, 24 Wash.App. 338, 602 P.2d 361 (1979), where appellate court declined to find a
common law duty on the part of an attorney to warn of a client’s intent to inflict serious
injury on a third person).

3. Flight Risk
An alien in removal proceedings bears the burden of proving that he or she does not
present a threat to the community and a risk of flight from further proceedings. See
Matter of Adeniji, 22 I&N Dec. 1102, 1111-13 (BIA 1999). Whether an alien has
rebutted the presumption against his or her release is a two-step analysis and, unless the
alien demonstrates that he or she is not a danger to the community, the alien should be
detained in DHS custody. See Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA 1994).
Only where the alien has rebutted the presumption that he or she is a danger to the
community does the likelihood that he or she will abscond become relevant. Id.

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Detaining an alien without bond is warranted when circumstances present a “strong risk that
the respondent will flee rather than appear for the deportation process.” Matter of Khalifah,
21 I&N Dec. 107, 111 (BIA 1995). Illegal presence or negative immigration history is an
indicator of flight risk. See, e.g., Matter of Melo, 21 I&N Dec. 883, 886 (BIA 1997);
Matter of Drysdale, 20 I&N Dec. 816-17.
A number of BIA decisions have addressed the following matters that may be considered
in deciding whether an alien poses a flight risk:
1. Whether the alien has had a fixed address in the United States. See Matter of
X-K-, 23 I&N Dec. 731, 736 (BIA 2005) (noting that, for many aliens, “the
recency of their arrival and their apprehension by immigration officials so close to
our borders may prove to be an indicator that they lack a stable address and work
history, family ties, or other favorable factors to support a discretionary release on
bond”); Matter of P-C-M-, 20 I&N Dec. 432, 435 (BIA 1992) (noting that the
alien “appears to have moved frequently since entering the country”).
2. Length and circumstances of residence in the United States. See Matter of XK-, 23 I&N Dec. at 736; Matter of Shaw, 17 I&N Dec. 177, 179 (BIA 1979)
(“There is no statement as to where the respondent resided in the country, how
long he lived there, or with whom he lived.”).
3. Family ties in the United States, particularly family members who can confer
immigration benefits on the alien. See Matter of P-C-M-, 20 I&N Dec. at 434
(“The respondent has no family in the United States and no other community
ties.”); Matter of Shaw, 17 I&N Dec. at 179 (“Other than an indication that he
has a lawful permanent resident uncle in this country, there is in fact no evidence
at all of community ties of any nature which would suggest his continuing
availability for future immigration proceedings.”); Matter of Patel, 15 I&N Dec.
666, 667 (BIA 1979).
4. Employment history in the United States, including its length and stability.
See Matter of P-C-M-, 20 I&N Dec. at 435 (noting that the alien “has no history
of steady employment”); Matter of Shaw, 17 I&N Dec. at 179 (“There is nothing
of record regarding the respondent’s employment history, or even an indication of
whether he was employed at the time of his arrest.”); Matter of Patel, 15 I&N
Dec. at 667.
5. Immigration record and manner of entry, including surreptitious or fraudulent
entries or subsequent conduct contrary to the terms of an alien’s lawful admission
such as use of aliases and false documents. See Matter of Shaw. 17 I&N Dec. at
179 n. 3 (“[A] greater bond will ordinarily be warranted in the case of a
respondent who entered the United States unlawfully (through evasion of
immigration authorities or use of a false identity) than in the case of a respondent,
otherwise similarly situated, who has entered this country lawfully using a true
identity.”); Matter of San Martin. 15 I&N Dec. 167, 169 (BIA 1974) (alien “used
a surreptitious method to return to the United States after deportation” that shows
“disrespect for lawful process”); Matter of Moise, 12 I&N Dec. 102, 104-05 (BIA
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1967) (violating in-transit without visa privileges by remaining to accept
employment).
6. Attempts to escape from authorities or other flights to avoid prosecution.
Matter of Patel, 15 I&N Dec. at 666.
7. Prior failures to appear for scheduled court proceedings. See Matter of Shaw.
17 I&N Dec. at 178; Matter of San Martin. 15 I&N Dec. at 168-69 (flight to avoid
criminal prosecution).
8. Criminal record, including extensiveness, recency and seriousness, indicating
consistent disrespect for law and ineligibility for relief from deportation. See
Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006) (“Immigration Judges are not
limited to considering only criminal convictions in assessing whether an alien is a
danger to the community.”); Matter of Andrade, 19 I&N Dec. 488, 489-91 (BIA
1987); Matter of Shaw, 17 I&N Dec. at 178-79; Matter of Patel, 15 I&N Dec, at
667. An alien’s criminal record is relevant to the setting of his bond because it is
indicative of character traits that may indicate whether he is likely to abscond.
Matter of P-C-M-, 20 I&N Dec. at 435 (finding that the alien’s convictions
“reflect adversely on his character with respect to his potential for absconding
upon release”); Matter of Andrade, 19 I&N Dec. at 489-91. An alien’s early
release from prison on parole does not necessarily reflect rehabilitation and,
therefore, such facts do not carry significant weight in determining the alien’s
flight risk. Matter of Andrade, 19 I&N Dec. 488, 490-91 (BIA 1987).
9. Being subject to prosecution for a serious crime in the country to which DHS
seeks to remove him. See Matter of Khalifah, 21 I&N Dec. 107, 111 (BIA 1995)
(upholding detention without bond of an alien wanted in Jordan for financial support
of bombing attacks on cinemas that resulted in injuries).
10. Probable ineligibility for relief from removal. See Bertrand v. Sava, 684 F.2d
204, 217 n. 16 (2d Cir. 1982) (“The fact that the petitioners are unlikely to
succeed on their immigration applications … suggests that they pose … a risk [to
abscond] if [released].”); Matter of Drysdale, 20 I&N Dec. 815, 818 (BIA 1994)
(holding that an alien’s ineligibility for any form of relief from deportation is a
factor that contributes to the likelihood that the alien will not appear for his
deportation hearing); Matter of Ellis, 20 I&N Dec. 641, 643 (BIA 1993). An alien
who is likely to be awarded relief from deportation is considered more likely to
appear for deportation proceedings than one who is unlikely to be awarded relief.
Matter of Andrade, 19 I&N Dec. at 491. “Some aliens may demonstrate to the
Immigration Judge a strong likelihood that they will be granted relief from
removal and thus have great incentive to appear for further hearings.” Matter of
X-K-, 23 I&N Dec. 731, 736 (BIA 2005). Where the alien has been found
removable and denied relief by the Immigration Court, the alien is likely to fail to
appear for removal and this justifies an increased bond. See Matter of Drysdale,
20 I&N Dec. 815, 818 (BIA 1994) (ineligibility for relief was a proper
consideration in determining bond); Matter of Sugay, 17 I&N Dec. 637, 640
(BIA 1981) (fact that IJ had ordered alien deported and relief denied combined
with new evidence to justify increasing the amount of bond).
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“An Immigration Judge has broad discretion in deciding the factors that he or she may
consider in custody determinations. The Immigration Judge may choose to give greater
weight to one factor over others, as long as the decision is reasonable.” Matter of Guerra,
24 I&N Dec. 37, 40 (BIA 2006) (upholding IJ’s determination that evidence of serious
criminal activity, even though it had not resulted in a conviction, outweighed other
factors, such that release on bond was not warranted).
The Immigration Court should not consider what difficulties there may be in executing a
final order of removal in redetermining bond. Matter of P-C-M-, 20 I&N Dec. 432 , 434
(BIA 1991) (IJ should not release an alien on the basis that the alien’s removal to Angola
appears unlikely).

C.

Other Bond Factors

As stated above, to merit release under INA § 236(a), the detained alien must
demonstrate that “release would not pose a danger to persons or property and that the
alien is likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8); Matter of
Adeniji, 22 I&N. Dec. 1102, 1111-1112 (BIA 1999). Such a demonstration, however,
does not guarantee release because the Attorney General (or the Immigration Court via
delegated authority) may deny release as a matter of discretion based on other factors:
The courts have consistently recognized that the Attorney General has
extremely broad discretion in determining whether or not to release an
alien on bond. Further, the Act does not limit the discretionary factors that
may be considered by the Attorney General in determining whether to
detain an alien pending a decision on asylum or removal.
Matter of Guerra, 24 I&N Dec. 37, 39 (BIA 2006) (citations omitted); accord Matter of
D-J-, 23 I&N Dec. 572, 575-576 (AG 2003); see also Doherty v. Thornburgh, 943 F.2d
204, 209 (2d Cir. 1991) (“It is axiomatic … that an alien’s right to be at liberty during the
course of removal proceedings is circumscribed by considerations of the national
interest.”), cert. dismissed, 503 U.S. 901 (1992).
In Matter of D-J-, the Attorney General directed the BIA and Immigration Courts to
consider national security interests in bond proceedings involving an influx of illegal
aliens who arrived by sea and were arrested and detained pending a decision on their
removal. Citing his authority under INA § 236(a), the Attorney General determined that
the release of the respondent and the other illegal aliens on bond “was and is unwarranted
due to considerations of sound immigration policy and national security that would be
undercut.” Id., at 574. He continued, “I further determine that respondent has failed to
demonstrate adequately that he does not present a risk of flight if released on bond and
that he should be denied bond on that basis as well.” Id. The Attorney General did not
specify what factors aside from national security interests might be considered in addition
to danger to the community and flight risk. Such additional factors will be determined on
a case-by-case basis.
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D.

Minimum Bond

For an alien in non-mandatory detention, the Immigration Court can either continue to
detain the alien or else release the alien on bond of not less than $1,500.00. The
Immigration and Nationality Act clearly provides that the Attorney General may not
release an alien on bond less than $1500. See INA § 236(a)(2)(A). INA § 236(a)
provides that, during pendency of removal proceedings against an arrested and detained
alien, the Attorney General, or his delegate “(1) may continue to detain the arrested alien;
and (2) may release the alien on – (A) bond of at least $1,500 with security approved by,
and containing conditions prescribed by, the Attorney General; or (B) conditional
parole.”
There is no provision of the Immigration and Nationality Act for the release of an alien in
removal proceedings on his or her own recognizance, without bond. Parole is available
only to arriving aliens applying for admission or aliens who are present without
admission. See INA § 212(d)(5); “Legal Opinion Discusses Parole for Persons who are
not Arriving Aliens,” 76 Interpreter Releases 1050 (July 12, 1999) (describing August
21, 1998, memorandum of INS General Counsel who concluded that the agency had the
authority to parole applicants for admission who were not arriving aliens (e.g., aliens
removable under INA § 212(a)(6)(A)(i)). Neither an Immigration Judge nor the BIA has
authority to grant parole or to review DHS parole decisions. See Matter of Oseiwusu, 22
I&N Dec.19, 20 (BIA 1998); Matter of Matelot, 18 I&N Dec. 334, 336 (BIA 1982);
Matter of Castellon, 17 I&N Dec. 616 (1981).
No effect should be given to explanatory comments to the EOIR regulation 8 CFR § 3.19
(renumbered 8 CFR § 1003.19) that suggest Immigration Judges retain authority to
release aliens in removal proceedings on their own recognizance are ineffective. See 66
FR 54909-02, 54910, 2001 WL 1334025 (October 31, 2001) (“The immigration judge
may then reduce the required bond amount, release the alien on his or her own
recognizance, or make such other custody decision as the immigration judge finds
warranted.”). These comments to a regulation cannot change the statutory minimum
bond requirement enacted by Congress. See Public Lands Council v. Babbitt, 529 U.S.
728, 745 (2000) (a “regulation cannot change the statute”). The regulation does not
authorize the court to release an alien on his or her own recognizance. Therefore, the
comment is mere dicta. An agency rule is not binding unless it is legislative in nature and
conforms to certain procedural requirements. Moore v. Apfel, 216 F.3d 864, 868 (9th
Cir. 2000). “To satisfy the second [requirement], it must have been promulgated
pursuant to a specific statutory grant of authority and in conformance with the procedural
requirements imposed by Congress.” Id. The comment to 8 C.F.R. § 3.19 is merely an
explanation of how bond proceedings generally proceed. See Peterson Builders, Inc. v.
United States, 26 Ct.Cl. 1227, 1229 n. 3 (1992) (“While the court took guidance from the
comments to the interim regulations, they are in no way binding upon the court.”). It is
not a specific grant of authority to release aliens on their own recognizance.

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The language of INA § 236(a) makes plain that ordering release on the alien’s own
recognizance is no longer an option. The IIRIRA regulation on bond provides that an
alien may petition the Immigration Judge for “amelioration of the conditions under which
he or she may be released ... [and] the Immigration Judge is authorized to exercise the
authority in section 236 of the Act to detain the alien in custody, release the alien, and
determine the amount of bond, if any, under which the respondent may released, as
provided in § 1003.19 of this chapter.” 8 C.F.R. § 236.1(d). This regulation does not
change the statutory minimum bond: “While regulations may impose additional or more
specific requirements, they cannot eliminate statutory requirements.” Hunsaker v. Contra
Costa County, 149 F.3d 1041, 1043 (9th Cir. 1998). Since the statutory command is so
clear, the “if any” language has been construed as not referring to the statutory floor for
release decisions but rather to the ceiling at which bond may be set, although the BIA has
not yet issued a published decision.
Congress increased the minimum bond from $500 to $1,500 in section 303 of IIRIRA.
Compare INA § 242(a) (1995), with INA § 236(a) (2002). Congress did so because
bonds of $500 had become ineffective in assuring that aliens would appear for
proceedings or deportation:
[T]he conclusion that bond levels have often been set too low, sometimes
almost ludicrously so, seems inescapable. Unsystematic analyses
conducted in a number of districts demonstrate the obvious—that bond
breaches decline substantially as the bond amount increases. The current
bonding system was established long before the problems of illegal
migration and criminal aliens became urgent ones and at a time when INS
detention was not a viable option. Indeed, the statutory minimum bond
level had been $500 for decades until the new section 236(a)(2)(A) raised
the minimum to $1,500. Until now many aliens simply viewed the bond
premium (typically only 10% of the bond amount) as a routine cost of
doing business, a small price for illegal entry. In part, this pattern of low
bonds reflected the fact that bonds seemed to be set at a level designed to
assure public safety and aliens’ appearance at hearings, whereas bonds set
at a level necessary to assure their surrender for actual removal might
require a higher bond level.
Peter H. Schuck, INS Detention and Removal: A “White Paper”, 11 GEO. IMMIGR. L.J.
667 (1997). Obviously, Congress would not increase the minimum bond to $1,500 from
$500 if it wanted Immigration Judges to have the power to avoid setting bond altogether
by releasing aliens on their own recognizance, without any bond.

E.

Informal Hearing

A bond hearing before the Immigration Court is an informal hearing, and no hearing
transcript is usually made. Matter of Chirinos, 16 I&N Dec. 276, 277 (BIA 1977)
(“[T]here is no right to a transcript of a bond redetermination hearing. Indeed there is no
requirement of a formal ‘hearing.’”); Hass v. INS, No. 90 C 5513, 1991 WL 38258 at *4
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(N.D.Ill. March 15, 1991) (“The regulations do not provide for a transcript of bond
redetermination proceedings. 8 C.F.R. § 242.2(d) [recodified at 8 C.F.R. § 1003.19].
Bond redetermination proceedings are informal and not of record [i.e., not recorded
verbatim]. If plaintiff was concerned about the lack of a transcript, he could have
requested the Court to provide a court reporter….”). “It is well settled that there is no
requirement in bond proceedings for a formal hearing and that informal procedures may
be used so long as no prejudice results. As there is no right to discovery in deportation
proceedings, no such right exists in the less formal bond hearing procedure.” Matter of
Khalifah, 21 I&N Dec. 107, 112 (BIA 1995) (citation omitted). The BIA has
emphasized: “Our primary consideration in a bail determination is that the parties be able
to place the facts as promptly as possible before an impartial arbiter.” Matter of
Chirinos, 16 I&N Dec. 276, 277 (BIA 1977) (emphasis in original). The bond
redetermination may be conducted by telephone at the discretion of the Immigration
Judge. 8 C.F.R. § 1003.19(b).
A bond hearing is “separate and apart from, and shall form no part of, any deportation or
removal hearing.” 8 C.F.R. § 1003.19(d); accord Matter of Guerra, 24 I&N Dec. 37, 40
n. 2 (BIA 2006) (“Bond proceedings are separate and apart from the removal hearing.”);
Matter of R-S-H-, 23 I&N Dec. 629, 630 n. 7 (BIA 2003) (“We note that bond and
removal are distinctly separate proceedings.”). The Immigration Court and the parties
must create a complete and separate record of the custody/bond proceedings:
The parties and the Immigration Judge are responsible for creating a full
and complete record of the custody proceeding. … In any bond case in
which the parties or the Immigration Judge rely on evidence from the
merits case, it is necessary that such evidence be introduced or otherwise
reflected in the bond record (such as through a summary of merits hearing
testimony that is reflected in the Immigration Judge’s bond
memorandum). Otherwise, it will not be part of the bond record available
for our review on appeal.
Matter of Adeniji, 22 I&N Dec. at 1115.
“Information adduced during a removal hearing … may be considered during a custody
hearing so long as it is made part of the bond record.” Matter of Adeniji, 22 I&N Dec.
1102, 1115 (BIA 1999). Moreover, the same Immigration Court can preside at both the
bond hearing and removal hearing. Flores-Leon v. INS, 272 F.3d 433, 440 (7th Cir.
2001) (court rejected recusal motion where IJ decided both bond and removability). If
the Immigration Court fails to keep the bond hearing separate from the removal
proceeding and the alien appeals on that basis, the alien must show that prejudice ensued
from the commingling before the BIA will vacate the court’s bond determination. Matter
of Chirinos, 16 I&N Dec. 276, 277 (BIA 1977).

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F.

Evidence at Bond Hearings

By regulation, a bond redetermination “may be based on any information that is
available.” 8 C.F.R. § 1003.19(d). The Federal Rules of Evidence are inapplicable to
bond hearings. See United States v. Wadih El-Hage, 213 F.3d 74, 82 (2d Cir. 2000) (“A
detention hearing need not be an evidentiary hearing. While the defendant may present
his own witnesses and cross-examine any witnesses that the government calls, either
party may proceed by proffer and the rules of evidence do not apply.”), cert. denied, 531
U.S. 881 (2000); FED.R.EVID. 1101(d)(3) (exempting bail hearings from the evidentiary
rules prohibiting the use of hearsay); cf. 18 U.S.C. § 3142(f) (“The rules concerning
admissibility of evidence in criminal trials do not apply to the presentation and
consideration of information at the [bail] hearing.”).
The legal standard for admissibility of evidence in a removal hearing is that the evidence
be probative and fundamentally fair. Lopez-Chavez v. INS, 259 F.3d 1176, 1181 (9th
Cir. 2001); Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir. 1996); Bustos-Torres v. INS, 898
F.2d 1053, 1055 (5th Cir.1990); Matter of Ponce-Hernandez, 22 I&N Dec. 784, 785 (BIA
1999). The evidentiary standard in bond hearings is even more relaxed than in a removal
hearing. See 8 C.F.R. § 1003.19(d); Matter of Khalifah, 21 I&N Dec. 107, 112 (BIA
1995); Matter of Chirinos, 16 I&N Dec. 276, 277 (BIA 1977). “Any evidence that in the
record that is probative and specific can be considered [at a bond hearing].” Matter of
Guerra, 24 I&N Dec. 37, 40-41 (BIA 2006) (upholding IJ’s reliance on criminal
complaint signed by a DEA agent). This is one reason why a bond hearing is “separate
and apart from, and shall form no part of, any deportation or removal hearing.” See 8
C.F.R. § 1003.19(d); Matter of Chirinos, 16 I&N Dec. 276, 277 (BIA 1977) (“The
requirement of a separate bond procedure and record is part of the effort to divorce, as far
as possible, the bond matter from the deportation hearing.”).
Over 20 years ago, Justice Stephen Breyer, then a circuit judge, wrote that it is a “wellestablished proposition of law” that detention decisions may be based on proffers of
evidence and hearsay offered by the prosecution:
[M]agistrates and judges traditionally have been permitted to base their
decisions, both as to release conditions and as to possible detention, on
hearsay evidence, such as statements from the prosecution or the
defendants about what they can prove and how. This authority rests
primarily upon the need to make the bail decision quickly, at a time when
neither party may have fully marshalled all the evidence in its favor. It
may also reflect the realization that at least some hearsay on some
occasions may be fairly reliable, perhaps more reliable than certain direct
evidence. For example, well-kept records, though hearsay, may be more
reliable than eyewitness accounts of, say, a road accident on a foggy night.
In any event, the need for speed necessarily makes arraignments,
“probable cause” determinations, and bail hearings typically informal
affairs, not substitutes for trial or even for discovery. Often the opposing
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Deputy Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000204

parties simply describe to the judicial officer the nature of their evidence;
they do not actually produce it.
United States v. Acevedo-Ramos, 755 F.2d 203, 206 (1st Cir. 1985) (Breyer, J.).
Other circuits have held that federal courts have discretion to accept proffers of evidence,
without witnesses, at pretrial detention hearings. See United States v. LaFontaine, 210
F.3d 125, 131 (2d Cir. 2000) (“It is well established in this circuit that proffers are
permissible both in the bail determination and bail revocation contexts. … [T]his court
stated that ‘it would [not] be an abuse of discretion for the district court to permit the
government to proceed by proffer alone.’”); United States v. Smith, 79 F.3d 1208, 1210
(D.C. Cir. 1996) (“Every circuit to have considered the matter, … permitted the
Government to proceed by way of proffer [at a detention hearing].”); United States v.
Gaviria, 828 F.2d 667, 669 (11th Cir. 1987) (“We hold that the government as well as the
defense may proceed by proffering evidence subject to the discretion of the judicial
officer presiding at the detention hearing.”); United States v. Winsor, 785 F.2d 755, 756
(9th Cir. 1986) (“As in a preliminary hearing for probable cause, the government may
proceed in a detention hearing by proffer or hearsay. [Citations omitted] The accused
has no right to cross-examine adverse witnesses who have not been called to testify.”).
Where the proffer is disputed, however, the court might be required to allow crossexamination. The Third Circuit has held that the court has discretion to require, in an
appropriate case, that the testimony of a witness be presented in person, rather than by
hearsay evidence. United States v. Accetturo, 783 F.2d 382 (3d Cir. 1986). The First and
Second Circuits reached similar conclusions. See United States v. Acevedo-Ramos, 755
F.2d 203, 207-208 (1st Cir. 1985); United States v. Martir, 782 F.2d 1141 (2d Cir. 1986).
The Ninth Circuit has held that there is no right to cross-examine adverse “witnesses”
who have not been called to testify. But when there is a proffer from defendant that the
Government’s proffer was incorrect, the court might be required to allow crossexamination. United States v. Winsor, 785 F.2d 755, 756 (9th Cir. 1986).

G.

Bond Decision

As required by regulation at 8 CFR § 1003.19(f), the determination of the Immigration
Court on custody/bond shall be entered on the appropriate form at the time the decision is
made and “the parties shall be informed orally or in writing of the reasons for the
decision.” Where removability is not conceded and the alien appears eligible for bond or
other relief, the Immigration Judge may have to make findings of fact and conclusions of
law. See Matter of A-P-, 22 I&N Dec. 468 (BIA 1999) (discussing requirements for a
summary decision in removal proceedings).

VI.

SUBSEQUENT BOND REDETERMINATION

After the Immigration Court has redetermined bond, any request for a subsequent bond
redetermination “shall be made in writing and shall be considered only upon a showing
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Deputy Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000205

that the alien’s circumstances have changed materially since the prior bond
redetermination.” 8 C.F.R. § 1003.19(e). There is no limit on the number of bond
redetermination requests that may be filed. Matter of Valles, 21 I&N Dec. 769, 771 (BIA
1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989) (“Bond proceedings are not
really ‘closed’ so long as a respondent is subject to a bond.”). However, the Immigration
Court can decline to change its last bond decision if there has been no change in
circumstances. Matter of Valles, 21 I&N Dec. at 771; Matter of P-C-M-, 20 I&N Dec.
432, 435 (BIA 1992) (finding “no change of circumstances which would warrant relief
from the previous bond determination”).
Alternatively, either party may submit to the Immigration Court a motion to reconsider
the custody/bond decision or a motion to reopen the bond hearing. See Matter of
Gordon, 20 I&N Dec. 52, 56 (BIA 1989) (referring to an “immigration judge's inherent
power to reopen and reconsider his own decisions”); cf. 8 C.F.R. § 1003.23 (motions to
reopen and reconsider in removal proceedings); Matter of Valles, 21 I&N Dec. at 771
(“The bond regulations, which establish unique and informal proceedings, do not
specifically address motions to reopen and do not expressly limit a detained alien to one
application for modification of the amount or terms of a bond.”). A motion to reopen
may be appropriate if the Government wants to submit additional evidence to the court
that was unavailable but the alien’s circumstances have not changed since the court
redetermined bond.

VII. BOND REVOCATION
Immigration bond “is a privilege extended … on a contingent, nonabsolute basis, entirely
subject to change.” Matter of Valdez, 21 I&N Dec. 703, 713 (BIA 1997) (upholding INS
rearrest and revocation of bond of an alien who had been released on bond before the
Transition Period Custody Rules took effect). DHS may at any time revoke a bond or
parole authorized for an alien, rearrest the alien under the original warrant, and detain the
alien. INA § 236(b); 8 C.F.R. § 1236.1(c)(9). “[T]he regulations presently provide that
when an alien has been released following a bond proceeding, a district director has
continuing authority to revoke or revise the bond, regardless of whether the Immigration
Judge or this Board has rendered a bond decision.” Matter of Valles, 21 I&N Dec. 769,
772 (BIA 1997).
In Matter of Sugay, 17 I&N Dec. 637, 639-40 (BIA 1981), the Board of Immigration
Appeals upheld the revocation of bond by INS based on a change of circumstances after
the Immigration Court had redetermined bond and reduced it. The BIA ruled that newly
developed evidence brought out at the alien’s deportation hearing, combined with the fact
that the Immigration Court had denied his applications for relief and ordered him
deported, represented a considerable change of circumstances that justified the district
director’s decision to raise the amount of bond. The Board stated: “We find without
merit counsel’s argument that the District Director was without authority to revoke bond
once an alien has had a bond redetermination hearing.” Id., at 640.
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Deputy Chief Counsel
Seattle Office of Chief Counsel

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VIII. BOND APPEALS
Both DHS and the alien have the right to appeal a custody/bond decision by the
Immigration Court to the Board of Immigration Appeals. See 8 C.F.R. §§ 1003.19(f),
236.1(d)(3) and 1236.1(d)(3). Either party must file the notice of appeal with the Board
within 30 days of the judge's decision. See 8 C.F.R. §§ 1003.19(f). If an alien appeals a
DHS decision on custody/bond, the alien must file the notice of appeal within ten (10)
days. 8 C.F.R. § 1236.1(d)(3)(ii). In any case, there is no appeal fee. See Board of
Immigration Appeals Practice Manual, Ch. 7, 1999 WL 33435432 (2004). The Board
will set a briefing schedule, but usually it will not prepare and provide the parties with a
transcript of the bond proceeding. Id.
A bond appeal and a removal decision appeal cannot be combined. The briefing
schedules are independent of each other. Id. Each requires a separate brief. Combining
or simultaneously filing an untimely notice of appeal or untimely brief contesting a bond
decision, with a timely notice of appeal or timely brief contesting a removal decision, will
not prevent the BIA from rejecting or dismissing the bond appeal. Id. The filing of an
appeal does not delay compliance with bond decision nor does it stay proceedings or
removal. 8 C.F.R. § 1236.1(d)(4).
When appropriate, an Immigration Judge may entertain a subsequent bond
redetermination request, even when a previous bond redetermination by the Immigration
Judge is on appeal to the BIA. Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997).
In bond proceedings, an alien remains free to request a bond
redetermination at any time without a formal motion, without a fee, and
without regard to filing deadlines, so long as the underlying deportation
proceedings are not administratively final. In other words, no bond
decision is final as long as the alien remains subject to a bond.
Id. (emphasis added).
If a bond redetermination request is granted by an Immigration Judge while a bond
appeal is pending with the BIA, any appeal filed by the party making the request is
rendered moot. Id., at 773. If the Immigration Court entertains a bond redetermination
request during the Government’s bond appeal, the Government must notify the BIA in
writing, with proof of service on the opposing party, within 30 days, if it wishes to pursue
its original bond appeal. Id., at 773.

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Deputy Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000207

IX.

STAY OF RELEASE FROM DETENTION

If DHS appeals an Immigration Court’s bond/custody decision, DHS may request an
emergency stay from the BIA during the pendency of its appeal. 8 C.F.R. §
1003.19(i)(1). The BIA has discretion whether to grant the stay. Id.
In cases where DHS determined an alien should not be released on bond or where bond is
set higher than $10,000 and the Immigration Court authorizes release of the alien, on
bond or otherwise, the DHS can obtain a temporary automatic stay of release by filing a
Notice of Service Intent to appeal Custody Redetermination (Form EOIR-43) within one
day of the issuance of the Immigration Judge’s order. 8 C.F.R. § 1003.19(i)(2). ICE
OPLA headquarters must approve any Form EOIR-43 before it is filed. Upon filing of
the form, release is automatically stayed until the BIA decides the bond appeal. Id.;
Matter of Joseph, 22 I&N Dec. 660 (BIA 1999), clarified, Matter of Joseph, 22 I&N Dec.
799 (BIA 1999).
If the DHS fails to file an appeal with the BIA within ten (10) days of the Immigration
Judge’s decision, as required under 8 C.F.R. § 1003.38, the automatic stay expires. If the
BIA authorizes the alien’s release, that order is stayed automatically for five (5) business
days. Within that period, DHS can certify the Board’s custody order to the Attorney
General, and then release is further stayed until the AG makes a decision.
The automatic stay regulation was designed to ensure removal by preventing flight during
the pendency of proceedings and to protect the public from potential harm. See Ashley v.
Ridge, 288 F.Supp.2d 662, 664-65 (D.N.J. 2003). In promulgating the regulation, the
Department of Justice stated that the purpose of the automatic stay provision was to
“allow the Service to maintain the status quo while it seeks review by the Board, and
thereby avoid the necessity for a case-by-case determination of whether a stay should be
granted in particular cases in which the Service had previously determined that the alien
should be kept in detention and no conditions of release would be appropriate.”
Executive Office for Immigration Review, Review of Custody Determinations, 66
Fed.Reg. 54909 (Oct. 31, 2001). The regulation was implemented on an emergency basis
and made effective on October 31, 2001.
Federal courts are divided as to whether the automatic stay provision is lawful and
constitutional. Some courts have found the automatic-stay regulation both lawful and
constitutional. See Pisciotta v. Ashcroft, 311 F.Supp.2d 445 (D.N.J. 2004); Chambers v.
Ashcroft, No. 03-6762, 2004 WL 759645 (E.D.Pa. Feb. 27, 2004); Marin v. Ashcroft,
No. 04-CV-675, 2004 WL 3712722 (D.N.J. Mar. 17, 2004); Perez-Cortez v. Maurer, No.
03-2244 (D.Colo. Nov. 20, 2003); Inthathirath v. Maurer, No. 03-2245 (D.Colo. Nov. 20,
2003); Alameh v. Ashcroft, No. 03-6205, 2004 WL 3712718 (D.N.J. Jan. 6, 2004). Other
courts have held it is an unconstitutional violation of substantive and procedural due
process and/or invalid as ultra vires to the statute. See Zabadi v. Chertoff, No. C 0501796 WHA, 2005 WL 1514122 (N.D.Cal. 2005); Zavala v. Ridge, 310 F. Supp. 2d 1071
(N.D.Cal. 2004); Ashley v. Ridge, 288 F. Supp. 2d 662 (D.N.J. 2003); Uritsky v. Ridge,
37

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Deputy Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000208

286 F. Supp. 2d 842 (E.D.Mich. 2003); Bezmen v. Ashcroft, 245 F. Supp. 2d 446
(D.Conn. 2003).
Past experience shows that DHS has invoked the automatic stay in only a select number
of custody cases. For example, the EOIR statistics indicate that, in FY 2004, the
immigration judges conducted some 33,000 custody hearings and the Board adjudicated
1,373 custody appeals. Yet, DHS sought an automatic stay only with respect to 273 aliens
in FY 2004--and only 43 aliens in FY 2005.
A final rule to revise the existing interim rule authorizing DHS to invoke an "automatic
stay" in custody cases in connection with DHS's appeal of an IJ order to release the alien
on bond was published in the Federal Register, with an effective date of Nov. 1, 2006.
"Review of Custody Determinations," 71 Fed. Reg. 57873 (Oct. 2, 2006)
(http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/p
df/E6-16106.pdf).
This rule imposes new time limits on the duration of the automatic stay of IJ release
orders and new procedures for the IJs and the Board to expedite the appellate process
for automatic stay cases (see sections 1003.6(c) and 1003.19(i)(2)), and also clarifies the
process for DHS to seek a discretionary stay (sections 1003.6(c)(4) & (5) and
1003.19(i)(1)). The final rule also provides a revised rule for Attorney General review of
any BIA custody decision, which is not tied explicitly to whether DHS had invoked the
automatic stay at the IJ level (see section 1003.6(d)).

X.

BREACH OF BOND

“A bond is breached when there has been a substantial violation of the stipulated
conditions.” 8 C.F.R. § 103.6(e). DHS may breach the bond of an alien who does not
timely appear for the alien’s removal hearing. Matter of Arbelaez, 18 I&N Dec. 403,
405-06 (R.C. 1983). Moreover, DHS may breach the bond of an alien who fails to appear
after the alien or the bond obligor receives a “bag and baggage” letter requiring the
alien’s appearance for removal. See Ruiz-Rivera v. Moyer, 70 F.3d 498, 501-02 (7th Cir.
1995) (failure to appear after stay of removal denied); International Fidelity Insurance
Company v. INS, 623 F.Supp. 45, 46-47 (S.D.N.Y. 1985); Matter of Allied Fidelity, 19
I&N Dec. 124, 126-29 (Comm. 1984) (filing petition for writ of habeas corpus does not
excuse failure to surrender). A bond breach may be appealed to the Administrative
Appeals Unit (AAU). See McLean v. Slattery, 839 F.Supp. 188, 190-92 (E.D.N.Y.
1993) (requiring obligor to exhaust administrative remedies).
DHS must send notice of breach of bond to the bond obligor. 8 C.F.R. § 103.6(e); see
Hrubec v. INS, 828 F.Supp. 251, 253-54 (S.D.N.Y. 1993), aff'd without opinion, 41 F.3d
1500 (2d Cir. 1994) (up to INS to determine if bond breached but, since no proper notice,
appeal to AAU remained available); International Fidelity Insurance Company v.
Crosland, 490 F.Supp. 446, 448 (S.D.N.Y.1980) (vacated breach of bond after finding
alien inadvertently failed to appear, caused in part by the fact that no notice requiring his
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Deputy Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000209

appearance had been sent to him, and his attorney thereafter contacted INS and offered to
have the alien appear upon request).
“Substantial performance of all conditions imposed by the terms of a bond shall release
the obligor from liability.” 8 C.F.R. § 103.6(c)(3).
Substantial performance exists where there is no willful violation of the
terms or conditions of the bond, where the conditions are honestly and
faithfully complied with, and where the only variance from their strict and
literal performance consists of technical or unimportant occurrences.
Substantial violations are those acts which constitute a willful departure
form the terms or conditions of the bond, or the failure to comply or
adhere to the essential elements of those terms or conditions.
Matter of Allied Fidelity, 19 I&N Dec. 124, 127 (Comm. 1984). A federal court found
substantial performance where the alien’s attorney had mailed a request for continuance
seven days before hearing date and requested notification if there was any problem with
continuance, and no showing was made of intention to evade responsibilities. GomezGranados v. Smith, 608 F. Supp. 1236, 1238-39 (D.Utah 1985).

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Deputy Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000210

Outline of immigration law on:

Custody and Bond Issues
in Removal Proceedings

Gregory Fehlings
Deputy Chief Counsel
U.S. Immigration and Customs Enforcement
Seattle, Washington
206-553(b)(6), (b)(7)(C)
Edited by Moira A. Arsenault
Associate Legal Advisor, Appellate and Protection Law Division
(formerly of the National Security Law Division)
U.S. Immigration and Customs Enforcement

Revised
August 2, 2007

1

2010FOIA4519.000211

TABLE OF CONTENTS
I.

DUE PROCESS REQUIREMENT....................................................................... 3

II.

TIME AND PLACE FOR BOND/CUSTODY HEARING .................................. 6

A.

CUSTODY REDETERMINATIONS ................................................................................... 6

B.

VENUE FOR THE BOND HEARING ................................................................................ 7

C.

PROMPT BOND HEARING ............................................................................................. 7

D.

ALIENS RELEASED BY DHS.......................................................................................... 7

E.

ALIENS WITH A FINAL ORDER OF REMOVAL ............................................................. 8

III.

MANDATORY DETENTION ............................................................................... 9

A.

HISTORY ........................................................................................................................ 9

B.

INA § 236(C)(1)--MANDATORY DETENTION CATEGORIES ........................................ 9

C.

EXCEPTIONS TO INA § 236(C)(1) ............................................................................... 11

D.

IJ JURISDICTION AND THE JOSEPH HEARING ........................................................... 11

E.

“WHEN THE ALIEN IS RELEASED” CLAUSE IN INA § 236(C)................................... 13

F.

ARRIVING ALIENS ....................................................................................................... 17

IV.

PROLONGED PRE-ORDER DETENTION...................................................... 19

V.

DISCRETIONARY DETENTION UNDER INA § 236(a) ................................ 22
A.

CLASSES OF ALIENS FOR WHICH THE IJ HAS NO JURISDICTION TO RE-DETERMINE
CUSTODY...................................................................................................................... 23

B.

BURDEN OF PROOF ..................................................................................................... 24
1. Threat to National Security .................................................................................................. 26
2. Danger to the Community ................................................................................................... 26
2. Flight Risk ........................................................................................................................... 24

C.

OTHER BOND FACTORS .............................................................................................. 27

D.

MINIMUM BOND .......................................................................................................... 27

E.

INFORMAL HEARING................................................................................................... 29

F.

EVIDENCE AT BOND HEARINGS ................................................................................. 30

G.

BOND DECISION .......................................................................................................... 35

VI.

SUBSEQUENT BOND REDETERMINATION................................................ 35

VII.

BOND REVOCATION ....................................................................................... 36

VIII.

BOND APPEALS ................................................................................................ 37

IX.

STAY OF RELEASE FROM DETENTION ...................................................... 37

X.

BREACH OF BOND ........................................................................................... 40

2

2010FOIA4519.000212

I.

DUE PROCESS REQUIREMENT

An alien detained pending a decision as to whether the alien is to be removed from the
United States does not have a right to be released on bond. Matter of Guerra, 24 I&N
Dec. 37, 39 (BIA 2006) (citing Carlson v. Landon, 342 U.S. 524, 534 (1952); Matter of
D-J-, 23 I&N Dec. 572, 575 (AG 2003). The Supreme Court has concluded that
detention is a normal and lawful part of removal proceedings: “Detention during removal
proceedings is a constitutionally permissible part of that process.” Demore v. Kim, 538
U.S. 510, 531 (2003). The Court has a “longstanding view that the Government may
constitutionally detain deportable aliens during the limited period necessary for their
removal proceedings.” Id. at 526.
The Supreme Court has stated that Congress has broad authority to make rules for
detaining aliens during removal or deportation proceedings:
For reasons long recognized as valid, the responsibility for regulating the
relationship between the United States and our alien visitors has been
committed to the political branches of the Federal Government. Over no
conceivable subject is the legislative power of Congress more complete.
Thus, in the exercise of its broad power over immigration and
naturalization, Congress regularly makes rules that would be unacceptable
if applied to citizens . . . . Congress has the authority to detain aliens
suspected of entering the country illegally pending their deportation
hearings. And ... Congress [has] eliminated any presumption of release
pending deportation, committing that determination to the discretion of the
Attorney General.
Reno v. Flores, 507 U.S. 292, 305-06 (1993) (internal punctuation and citations omitted)
(upholding INS policy on release of detained juveniles).
The rules for detaining aliens are subject to the Due Process Clause of the Fifth
Amendment to the United States Constitution, which provides that no person shall be
deprived of liberty without “due process of law.” Id.; U.S. CONST. ART. V. “It is well
established that the Fifth Amendment entitles aliens to due process of law in deportation
proceedings.” Flores, at 305-07. “The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976). But it is “not necessarily an opportunity upon a
regular, set occasion, and according to the forms of judicial procedure.” Yamataya v.
Fisher (The Japanese Immigrant Case), 189 U.S. 86, 98 (1903).
The due process that must be afforded aliens varies with the circumstances. “Due
process in an administrative proceeding is not defined by inflexible rules which are
universally applied, but rather varies according to the nature of the case and the relative
importance of the governmental and private interests involved.” Matter of Exilus, 18
3

2010FOIA4519.000213

I&N Dec. 276, 278 (BIA 1982). The Supreme Court has stated that due process of law is
a flexible concept that adjusts according to three factors:
The constitutional sufficiency of procedures ... varies with the
circumstances. In evaluating the procedures in any case, the courts must
consider [(1)] the interest at stake for the individual, [(2)] the risk of an
erroneous deprivation of the interest through the procedures used as well
as the probable value of additional or different procedural safeguards, and
[(3)] the interest of the government in using the current procedures rather
than additional or different procedures.
Landon v. Plasencia, 459 U.S. 21, 34 (1982) (citations omitted) (deciding what due
process must be afforded a returning lawful permanent resident alien).
The Supreme Court balanced the three due process factors in deciding to uphold section
236(c)(1) of the Immigration and Nationality Act (INA), which mandates the detention of
certain criminal aliens pending the completion of removal proceedings. Demore v. Kim,
538 U.S. 510, 531 (2003). First, the Court emphasized that the statute was justified by
the legitimate congressional interest in ensuring the removal of criminal aliens who might
flee or cause harm to the public during their removal proceedings. Id. at 523-28. Second
and most significantly, the Court found that the detention did not raise the constitutional
concerns that might arise in the post-removal-period context, because removal
proceedings, unlike the post-removal period, have a finite termination point. Id. at 52728. The Court further concluded that, notwithstanding evidence that other courses of
action were available to Congress, the Government was not obligated under the Due
Process Clause “to employ the least burdensome means to accomplish its goal” in
“dealing with deportable aliens.” Id. at 528.
On any given day, Immigration and Customs Enforcement (ICE) detains about 21,000
aliens. More than 200,000 people are detained over the course of a year in any of three
types of facilities—eight (8) run by ICE itself, six (6) run by private companies, and 312
county and municipal jails that have federal contracts and hold about 57 percent of the
detainees. David Crary, Critics Decry Immigrant Detention Push, WASHINGTON POST,
June 24, 2006.
Most of the aliens who appear for removal proceedings are detained. According to the
FY 2005 Statistical Yearbook of the Executive Office of Immigration Review (EOIR),
90,945 detained aliens appeared in removal proceedings in fiscal year 2005. This
represents 56 percent of the total number of aliens who appeared for removal proceedings
(163,729).
In FY 2005, 106,832 aliens failed to appear. This is 39 percent of the total number of
aliens scheduled for removal hearings. Most of the aliens who failed to appear (55,913)
were scheduled for removal proceedings in Harlingen and San Antonio, Texas.

4

2010FOIA4519.000214

The Immigration Courts held 26,083 bond/custody redetermination hearings in fiscal year
2005. Thirty-six percent of detained aliens who either DHS or the Immigration Courts
released on bond and/or other conditions of release (7,890) did not appear.
The important immigration-related purpose of detaining aliens in
appropriate cases during the pendency of removal proceedings is plainly
evident from the Department of Justice Inspector General’s report in
February 2003…. In the 2003 report, the Inspector General found that the
former INS had successfully carried out removal orders and warrants with
respect to almost 94% of aliens who had been detained during the
pendency of their removal proceedings. However, in stark contrast, only
13% of final removal orders and warrants were carried out against nondetained aliens (a group that includes aliens ordered released by DHS,
immigration judges, or the Board). The Inspector General specifically
noted the former INS was successful in removing only 6% of non-detained
aliens from countries that the United States Department of State identified
as sponsors of terrorism; only 35% of non-detained aliens with criminal
records; and only 3% of non-detained aliens denied asylum. Office of the
Inspector General, U.S. Department of Justice, The Immigration and
Naturalization Service's Removal of Aliens Issued Final Orders, Report
Number I-2003-004 (Feb. 2003).
Statistics prepared by the Executive Office for Immigration Review
[EOIR] also substantiate that large numbers of respondents who are
released on bond or on their own recognizance fail to appear for their
removal hearings before an immigration judge. For the last 4 fiscal years,
37% (FY 2004), 41% (FY 2003), 49% (FY 2002), and 52% (FY 2001) of
such respondents have failed to appear for their scheduled hearings, and
the immigration judges have either issued in absentia removal orders or
administratively closed those removal proceedings. EOIR, FY 2004
Statistical Year Book at H3 (March 2005). 1 These numbers—totaling
over 52,000 “no-show” aliens in just the last four years after being
released from custody—reflect only those respondents released from
custody who fail to appear for their removal hearings before the
immigration judges. (They do not include the substantial additional
number of non-detained aliens who do appear for their immigration judge
hearing, but then fail to surrender after their removal order becomes final
and join the growing ranks of hundreds of thousands of absconders
currently at large.)
1

These EOIR statistics for “released” aliens who are released on bond or on their own recognizance cover
only those aliens who were released from custody after the initiation of removal proceedings against them.
EOIR also tracks a separate category of “non-detained” aliens—including those aliens who were never
taken in custody by DHS at all (such as many asylum applicants) as well as those aliens who had been
apprehended but were released by DHS prior to or at the time of the initiation of removal proceedings
against them. Of those “non-detained” aliens, 38% failed to appear for their removal hearings during the
last 4 fiscal years—a total of almost 130,000 “no-show” aliens in just the last 4 years. FY 2004 Statistical
Year Book at H2.

5

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EOIR, Review of Custody Determinations, 71 Fed. Reg 57873, 57878 (October 2, 2006)
(commentary to final rules at 8 C.F.R. §§ 1003.6 and 1003.19).

II.

TIME AND PLACE FOR BOND/CUSTODY HEARING

DHS initially determines whether an alien will be detained and determines the amount of
bond, if any. 8 C.F.R. § 1236.1(c). This determination will be made within 48 hours of
the alien’s arrest. 8 C.F.R. § 287.3(d); DHS Undersecretary Asa Hutchinson, “Guidance
on ICE Implementation of Policy and Practice Changes Recommended by the
Department of Justice Inspector General” (March 30, 2004), reprinted in 81 Interpreter
Releases 513, 528-32 (April 19, 2004). However, in case of “emergency or other
extraordinary circumstance,” the determination shall be made “within an additional
reasonable period of time.” Id. Reasons for the determination must be stated. Matter of
Dayoush, 18 I&N Dec. 352, 353 (BIA 1982).
DHS has sole authority to determine the place of detention. See INA § 241(g)(1); Van
Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999); Committee of Central American
Refugees v. INS, 795 F.2d 1434 (9th Cir.1986), as amended, 807 F.2d 769 (9th Cir.
1986); Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985); Sasso v. Milhollan, 735
F.Supp. 1045, 1048 (S.D. Fla.1990).
If DHS decides to detain an alien, the alien may seek release on bond by submitting a
formal written request to DHS stating all the reasons for the alien’s release. 8 C.F.R. §
236.1(d). DHS will consider the request and issue a decision.
An Immigration Court has no jurisdiction to redetermine bond on an alien subject to
administrative removal proceedings under INA § 238(b). 8 C .F.R. § 238.1(g); Bazaldua
v. Gonzales, 2007 WL 1752771 (D.Minn. June 15, 2007):

A.

Custody Redeterminations

After the initial bond/custody determination by DHS, the detained alien or the alien’s
counsel or representative may apply, orally or in writing, for a bond/custody
redetermination by the Immigration Court. 8 C.F.R. §§ 1003.19(b), 1236.1(d). The
controlling provisions for bond/custody redetermination hearings before an Immigration
Judge are found at INA § 236 and 8 C.F.R. §§ 1003.19 and 1236.1. An Immigration
Court with jurisdiction to redetermine bond may either reduce or increase the amount of
the bond set by DHS. Matter of Spiliopoulos, 16 I&N Dec. 561, 562 (BIA 1978) ([W]e
reject the contention advanced by the respondent that the immigration judge lacked the
authority to increase the amount of bond initially set by the District Director.”).
If the alien is not in DHS custody (e.g., alien is in state custody), the Immigration Court
lacks jurisdiction to redetermine bond/custody. Matter of Sanchez, 20 I&N Dec. 223
(BIA 1990); Cruz v. Molerio, 840 F.Supp. 303, 305-06 (S.D.N.Y. 1994) (alien
incarcerated in state prison not entitled to immigration bond hearing). An alien who is on

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supervised release, such as the Intensive Supervision Appearance Program (ISAP), is not
in DHS custody. Nguyen v. B.I. Inc., 435 F. Supp. 2d 1109, 1114 (D. Ore. 2006) (“I
conclude that placement in ISAP is not detention. It is a form of supervision that uses no
physical restraints or surveillance, both of which are typical characteristics of
detention.”).

B.

Venue for the Bond Hearing

The application for a bond redetermination hearing is made to one of the following EOIR
offices, in the following order prescribed at 8 C.F.R. § 1003.19:
1. To the Immigration Court that has jurisdiction over the place of
detention;
2. To the Immigration Court that has administrative control over the case.
See 8 C.F.R. § 1003.13; or,
3. To the Office of the Chief Immigration Judge (OCIJ) for designation of
the appropriate Immigration Court to accept and hear the application.
The Immigration Court may hold a bond/custody redetermination hearing before the
charging document is filed with the court. 8 C.F.R. § 1003.14(a). But the Immigration
Court cannot make a bond determination sua sponte; the alien must apply for a
redetermination. Matter of P-C-M-, 20 I&N Dec. 432, 434 (BIA 1992).

C.

Prompt Bond Hearing

Bond proceedings should be conducted promptly after the alien requests bond
redetermination by the Immigration Court. Matter of Chirinos, 16 I&N Dec. 276, 277
(1977) (“Our primary consideration in a bail determination is that the parties be able to
place the facts as promptly as possible before an impartial arbiter.”) (emphasis in
original). However, Federal Rule of Criminal Procedure 5(a)—that requires a detainee
held on criminal charges be brought before a magistrate within 48 hours—does not
generally apply to aliens held in civil detention, absent evidence of collusion between
immigration and prosecution authorities. See United States v. Dyer, 325 F.3d 464, 70 (3d
Cir. 2003), cert. denied, 540 U.S. 977 (2003) (explaining the “ruse” exception, but
declining to adopt it because the defendant would not have qualified for the exception);
United States v. Perez-Perez, 337 F.3d 990, 996-97 (8th Cir. 2003), cert. denied, 540 U.S.
927 (2003); United States v. Encarnacion, 239 F.3d 395, 398-99 (1st Cir. 2001), cert.
denied, 532 U.S. 1073 (2001); United States v. Noel, 231 F.3d 833, 837 (11th Cir. 2000),
cert. denied, 531 U.S. 1200 (2001).

D.

Aliens Released by DHS

If DHS has released the alien on bond, the alien has seven (7) days to request a bond
redetermination by the Immigration Court. 8 C.F.R. § 1236.1(d)(1). After the expiration

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of the seven-day period, the alien may request amelioration of the conditions of the
alien’s release only from DHS. 8 C.F.R. § 1236.1(d)(2); Matter of Chew, 18 I&N Dec.
262, 263 (BIA 1982). The alien may seek review of DHS’s bond redetermination before
the Board of Immigration Appeals by filing an appeal within ten (10) days of that
subsequent determination. 8 C.F.R. § 1236.1(d)(3)(ii).

E.

Aliens with a Final Order of Removal

Once a deportation/removal order has become administratively “final,” bond and custody
decisions are no longer governed by INA § 236, but by INA § 241. Zadvydas v. Davis,
533 U.S. 678, 683 (2001). If the alien has an administratively final order of removal or
deportation, the Immigration Court lacks jurisdiction to redetermine bond/custody, and
the alien must request review of bond/custody by DHS. See INA § 241(a)(2); 8 C.F.R.
§§ 1003.19(a), 1236.1(d)(1); Matter of Valles, 21 I&N Dec. 769, 772 (BIA 1997) (“The
regulations and the Board mention only two instances where an Immigration Judge is
divested of jurisdiction over a bond proceeding. The first is upon the lapse of the 7-day
period following an alien's release from custody. The second is upon the entry of an
administratively final order of deportation. In those cases, jurisdiction over bond
proceedings vests with the district director.”). An order of removal becomes
administratively final when the alien has waived appeal or when the BIA has dismissed
the alien’s appeal. INA § 101(a)(47)(B); 8 C.F.R. §§ 1241.1, 1003.38(b).
However, some courts have found that due process requires a bond hearing by an
Immigration Judge even after an alien receives an administratively final order of removal.
The U.S. Court of Appeals for the Ninth Circuit has ordered the Immigration Court to
conduct a bond hearing when the alien’s appeals have delayed the alien’s removal. See
Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (per opinion of Noonan, C.J., and
opinion of Tashima, C.J., concurring in judgment) (ordering bond hearing after delay of
32 months: 7 months for removal proceedings, 13 months for appeal to the BIA, and 12
months for appeal to the circuit court). Some courts have interpreted the granting of a
judicial stay of removal as reverting post-final order custody back to INA § 236 pre-order
detention. See Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003); Quezada-Bucio v.
Ridge, 317 F. Supp. 2d 1221, 1223-24 (W.D. Wash. 2004); but see De La Teja v. United
States, 321 F.3d 1357, 1362-63 (11th Cir. 2003) (“Because a final removal order has been
entered, De La Teja is no longer being detained pursuant to [INA § 236(c)], which
governs only detention prior to a final removal order.”). One federal district court has
ordered the Immigration Court to conduct a bond hearing after a final order of removal
because the district court held that a written decision by DHS is insufficient to satisfy due
process. Del Toro-Chacon v. Chertoff, 431 F.Supp.2d 1135, 1142 (W.D. Wash. 2006)
(ordering bond hearing after delay of 8 months while the circuit court considers alien’s
appeal of the denial of asylum application); but see Marcello v. Bonds, 349 U.S. 302, 311
(1955) (rejecting claim that custody decision by INS special inquiry officer violates due
process where INS initiates and prosecutes proceedings).

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III.

MANDATORY DETENTION
A.

History

Beginning with the passage of the Anti-Drug Abuse Act of 1988 (“ADAA”) and the
Immigration Act of 1990 (“IMMACT”), and continuing on through the passage of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress has
consistently demonstrated a desire that criminal and terrorist aliens be detained during the
pendency of their proceedings.
In 1988, Congress initially crafted a provision mandating the detention without bond of
an aggravated felon. See ADAA § 7343. Subsequently, in IMMACT, Congress carved
out an exception to mandatory detention for certain lawful permanent resident aggravated
felons provided that the alien could overcome presumptions against release. See Matter
of De La Cruz, 20 I&N Dec. 346 (BIA 1991). In AEDPA, Congress expanded the
grounds subjecting an alien to mandatory detention pending the outcome of immigration
proceedings and removed the exception created by IMMACT. AEDPA’s requirements,
however, were in effect for only a few months before they were superseded by IIRIRA’s
mandatory detention grounds codified at INA § 236(c)(1). 2
For well over a decade, Congress has expressed through legislation the intent that
criminal and terrorist aliens should generally, if not always, be detained until the
completion of their immigration proceedings. The legislation indicates that Congress
views criminal and terrorist aliens as threats to persons and property in the United States
who should be segregated from society until a decision can be made regarding whether
they should be allowed to remain in this nation. Congress views them as poor bail risks
who have little likelihood of relief from removal and who, therefore, have little incentive
to appear for their hearings if they are released from custody, regardless of family and
community ties.

B.

INA § 236(c)(1) – Mandatory Detention Categories

In Demore v. Kim, 538 U.S. 510 (2003), upholding the constitutionality of INA §
236(c)(1), the Supreme Court stated that mandatory detention under section 236(c)(1)
“serves the purpose of preventing deportable criminal aliens from fleeing prior to or
during their removal proceedings, thus increasing the chance that, if ordered removed, the
aliens will be successfully removed.” Id. at 528. The BIA had previously identified the
same rationale for this statute in several cases. See, e.g., Matter of Rojas, 23 I&N Dec.
117 (BIA 2001); Matter of Noble, 21 I&N Dec. 672 (BIA 1997).
2

In response to concerns expressed by the Immigration and Naturalization Service, and other interested
parties, that INS was fiscally unprepared to enforce the detention mandate imposed by Congress in
AEDPA, Congress in IIRIRA afforded INS a transition period of up to two (2) years during which
detention decisions would permit the release of certain specified criminal and terrorist aliens provided the
alien could overcome statutory presumptions against release.

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Section 236(c)(1) provides for the mandatory detention of certain enumerated aliens. The
purpose of INA § 236(c)(1) is to impose a duty on DHS to continue to detain criminal
and terrorist aliens pending the completion of proceedings to remove the alien from the
United States once the alien is no longer in the custody of another entity, or if never in
custody previously. It lists all aliens subject to mandatory detention except for arriving
aliens, which are also subject to mandatory detention as discussed below. Compare INA
§ 236(c)(1), with INA § 235(b)(2)(A). Section 236(c)(1) provides as follows:
The Attorney General shall take into custody any alien who-(A) is inadmissible by reason of having committed any offense covered in
section 212(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in
section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 237(a)(2)(A)(i) of this title on the basis of
an offense for which the alien has been sentence to a term of
imprisonment of at least 1 year, or
(D) is inadmissible under section 212(a)(3)(B) of this title or deportable
under section 237(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released
on parole, supervised release, or probation, and without regard to whether
the alien may be arrested or imprisoned again for the same offense.
Under INA § 236(c)(1), aliens who must be detained during removal proceedings include
those who are:
•

•
•
•
•
•
•

inadmissible by reason of having committed any criminal offense covered in
section 212(a)(2), such as a crime involving moral turpitude, multiple criminal
convictions with aggregate sentences of five (5) years, a controlled substance
violation, controlled substance traffickers, or prostitution and commercialized
vice;
deportable by reason of having committed two or more crimes involving moral
turpitude after admission;
deportable for an aggravated felony conviction;
deportable for a controlled substance violation, drug abuse, or drug addiction;
deportable for a firearms or destructive device offense;
deportable for conviction of a crime involving moral turpitude with a term of
imprisonment of at least one year; or
inadmissible or deportable for terrorist activity.

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See, e.g., Demore v. Kim, 538 U.S. 510 (2003) (mandatory detention for theft);
Montenegro v. Ashcroft, 355 F.3d 1035, 1037-38 (7th Cir.2003) (mandatory detention for
possession with intent to deliver cocaine); Hussain v. Gonzales, -- F.Supp.2d --, 2007 WL
1805157 (E.D.Wis. May 22, 2007) (mandatory detention on national security grounds).
The Board of Immigration Appeals has determined that, if an alien has committed any of
the offenses covered in INA § 237(a)(2)(A)(ii), (A)(iii), (B), (C) or (D), the alien is
subject to mandatory detention under INA § 236(c)(1) regardless whether DHS has
charged the alien with removability based on the offense. Matter of Kotliar, 24 I&N Dec.
124, 126 (BIA 2007) (citing Matter of Melo, 21 I&N Dec. 883, 885 n. 2 (BIA 1997) (the
phrase “is deportable” does not require an alien to be charged with deportability as an
aggravated felon for the alien to be amenable to mandatory detention under the IIRIRA
transitional rules)); see also Hussain v. Gonzales, -- F.Supp.2d --, 2007 WL 1805157
(E.D.Wis. May 22, 2007) (“The BIA rejected the IJ's conclusion that an alien had to be
charged under 8 U.S.C. § 1227(a)(4) with removability on the ground of terrorist-related
conduct in order to divest the IJ of jurisdiction over his custody status.”).
Criminal aliens who are not subject to mandatory detention under section 236(c)(1)
include aliens removable under INA § 237 for one crime involving moral turpitude, if
they were sentenced to less than one year, and for crimes relating to domestic violence,
stalking, and the abuse or neglect of children. See Michael A. Pearson, INS Executive
Associate Commissioner, “Detention Guidelines Effective October 9, 1998” (October 7,
1998), reprinted in 75 Interpreter Releases 1508, Appendix I (Nov. 2, 1998).

C.

Exception to INA § 236(c)(1)

An alien “described in” INA § 236(c)(1) may be released from detention “only if” the
alien falls within the enumerated exceptions of INA § 236(c)(2). The exceptions provide
that aliens may be released only if they are part of the Witness Protection Program or if
their release will protect other witnesses or their immediate family. The alien must
satisfy the Attorney General that he or she will not pose a danger to the safety of other
persons or of property and is likely to appear for hearings. INA § 236(c)(2). The
Immigration Court has no bond/custody redetermination authority over those categories
of aliens defined in INA § 236(c)(1) unless they fall within the enumerated exceptions of
INA § 236(c)(2). See 8 C.F.R. § 1236.1(c)(1)(i).

D.

IJ Jurisdiction and the Joseph Hearing

The Immigration Court lacks jurisdiction to redetermine bond/custody of an alien
released from non-DHS custody after the expiration of IIRIRA’s Transition Period
Custody Rules, if the alien is “properly included” in a mandatory detention category
under INA § 236(c)(1). 8 C.F.R. § 1003.19(h)(2)(i)(D); see Matter of Adeniji, 22 I&N
Dec. 1102, 1107-11 (BIA 1999). See also 8 C.F.R. § 1003.19(h)(2)(i)(C) (if described in
INA § 237(a)(4)).

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By regulation, an alien may request a hearing before an Immigration Judge to contest the
DHS determination that the alien is “properly included” in a mandatory detention
category. See 8 C.F.R. §§ 1003.19(h)(1)(ii), 1003.19(h)(2)(ii); Matter of Joseph, 22 I&N
Dec. 660, 670-73 (BIA 1999) (hereinafter Joseph I), clarified by Matter of Joseph, 22
I&N Dec. 799, 805-07 (BIA 1999) (hereinafter Joseph II). This hearing is referred to as a
Joseph hearing. See DeMore, 538 U.S. at 514 n.3 (citing Joseph II); Gonzalez v.
O'Connell, 355 F.3d 1010, 1013 (7th Cir. 2004). If the Immigration Court finds that the
alien is not subject to INA § 236(c)(1), the court then proceeds to a regular bond hearing
under INA § 236(a). See DeMore, 538 U.S. at 532 (Kennedy, J., concurring); O’Connell,
at 1013; Joseph II, 22 I&N Dec. at 806.
An Immigration Court is not bound by the charges in the NTA in determining whether an
alien is “properly included” in the mandatory detention category. Matter of Kotliar, 24
I&N Dec. 124, 126 (BIA 2007); Joseph II, 22 I&N Dec. at 806; see Hussain v. Gonzales,
-- F.Supp.2d --, 2007 WL 1805157 (E.D.Wis. May 22, 2007) (“Based on its interpretation
on 8 C.F.R. § 1003.19(h)(2)(i)(C), the BIA concluded that it was enough if DHS had
“reason to believe” that the alien was a member of a terrorist organization for the IJ to be
divested of jurisdiction to redetermine his custody.”). However, an Immigration Court’s
finding in removal proceedings regarding removability may properly be relied upon in
custody proceedings to determine whether the mandatory detention ground applies to the
alien. Id. at 803. “If this threshold bond decision is made after the Immigration Judge’s
resolution of the removal case, the Immigration Judge may rely on that underlying merits
determination.” Id. at 800.
The BIA in Joseph II explained that, in determining whether the alien is “properly
included” in a mandatory detention category under INA § 236(c)(1), before proceeding to
the merits of the charges of removability, the Immigration Court considers the future
likelihood that the alien will be found removable under one of the referenced mandatory
detention grounds:
[I]n assessing whether an alien is “properly included” in a mandatory
detention category during a bond hearing taking place early in the removal
process, the Immigration Judge must necessarily look forward to what is
likely to be shown during the hearing on the underlying removal case.
Thus, for example, the failure of the Service to possess a certified copy of
a conviction record shortly after taking an alien into custody would not
necessarily be indicative of its ability to produce such a record at the
merits hearing. And the same could be true of evidence tendered by the
alien during an early bond hearing.
Joseph II, 22 I&N Dec. at 807.
Due process requires that the Government show there is at least “some merit” to the
charge of removability that is grounds for mandatory detention under INA § 236(c)(1).
See DeMore, at 532 (Kennedy, J., concurring); Pisciotta v. Ashcroft, 311 F.Supp.2d 445,
454-55 (D.N.J. 2004) (“[T]here is at least ‘some merit’ to the removal charges underlying

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the detention here. … Therefore, consistent with the reasoning in Demore, this Court
finds that … the ongoing detention of Petitioner, a criminal alien in pending removal
proceedings, is constitutionally permissible.”). The Joseph hearing on the viability of the
charge of removability ostensibly satisfies due process. See DeMore, at 514 n. 3
(“Because respondent conceded that he was deportable because of a conviction that
triggers [INA § 236(c)(1)] and thus sought no Joseph hearing, we have no occasion to
review the adequacy of Joseph hearings generally in screening out those who are
improperly detained pursuant to § 1226(c). Such individualized review is available,
however, and Justice SOUTER [in dissent] is mistaken if he means to suggest
otherwise.”).
An alien in mandatory detention during removal proceedings may end his or her
mandatory detention by demonstrating either that he or she is not an alien or that the
Government is “substantially unlikely” to establish that he or she is in fact subject to
mandatory detention. DeMore, 538 U.S. at 514 n.3 (citing Joseph II); see 8 C.F.R. §
1003.19(h)(1)(ii) (providing that an alien may seek a “determination by an Immigration
Judge that the alien is not properly included” within INA § 236(c)(1)); Joseph II, 22 I&N
Dec. at 806 (“[W]e determine that a lawful permanent resident will not be considered
‘properly included’ in a mandatory detention category when an Immigration Judge or the
Board is convinced that the Service is substantially unlikely to establish at the merits
hearing, or on appeal, the charge or charges that would otherwise subject the alien to
mandatory detention.”).
If the alien proves that he or she is not “properly included” in a mandatory detention
category under INA § 236(c)(1) or if the Government fails to satisfy its “minimal,
threshold burden” of showing some merit to the allegation that such a category applies,
then the alien may qualify for discretionary release under INA § 236(a). See DeMore,
538 U.S. at 532 (Kennedy, J., concurring); Gonzalez v. O’Connell, 355 F.3d 1010, 1013
(7th Cir. 2004) (“[I]f the IJ determines the alien does not fall within § 1226(c), then he
may consider the question of bond.”); Joseph II, 22 I&N Dec. at 806 (“A determination in
favor of an alien on this issue does not lead to automatic release. It simply allows an
Immigration Judge to consider the question of bond under the custody standards of
section 236(a) of the Act.”).
If the Immigration Court determines that section 236(c)(1) does not apply, the court must
provide factual findings and analysis supporting a discretionary determination of
custody/bond under INA § 236(a). See Joseph II, 22 I&N Dec. at 806, 809; Matter of
Adeniji, 22 I&N Dec. 1102, 1112-16 (BIA 1999). See section V. below.

E.

“When the Alien is Released” Clause in INA § 236(c)

Section 236(c)(1) provides that the Attorney General shall take into custody any alien
removable on mandatory grounds of detention “when the alien is released, without regard
to whether the alien is released on parole, supervised release, or probation, and without
regard to whether the alien may be arrested or imprisoned again for the same offense.”
(emphasis added). The critical date for the application of the mandatory detention statute

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is the date that the alien is released from non-DHS custody, which must be after the
expiration of IIRIRA’s Transition Period Custody Rules (TPCR) on October 8, 1998.
Matter of Adeniji, 22 I&N Dec. 1102, 1107-11 (BIA 1999).
An alien therefore is not subject to mandatory detention under INA § 236(c)(1) if the
alien was released from his non-DHS custodial setting on or before October 8, 1998—the
expiration date of the TPCR. See Matter of West, 22 I&N Dec. 1405 (BIA 2000); Matter
of Valdez, 21 I&N Dec. 703, 707-14 (BIA 1997); Matter of Noble, 21 I&N Dec. 672,
677-86 (BIA 1997). If the alien was released on or before October 8, 1998, the alien’s
custody/bond must be determined under the TPCR. See id.; 8 C.F.R. §§ 1003.19(h)(1),
1236.1(c)(ii).
In Matter of West, 22 I&N Dec. 1405 (BIA 2000), the Board of Immigration Appeals
held that an alien who was released from state custody before INA § 236(c) became
effective but was convicted after that date could not be considered “released” for
purposes of applying the statute's mandatory detention provision. The alien in the case
was arrested in April 1997 and charged with various drug offenses, indicted, and then
released on bond in December of that year. In February 1999, he pled guilty and was
sentenced to one year of probation for each offense. The Board held that the term
“released” meant release from physical restraint, reasoning that Congress plainly
intended to refer to the release of an alien from a restrictive form of criminal custody
involving physical restraint. Because the respondent was last released from the physical
custody of the state of New Jersey in December 1997, which was before the TPCR
expired and INA § 236(c) became effective, the Board concluded that he was not subject
to mandatory detention under the statute.
The release from non-DHS custody that triggers mandatory detention can be any form of
physical restraint, such as criminal custody, civil commitment to a mental institution, and
other forms of civil detention. See Matter of West, 22 I&N Dec. at 1410 (“[W]e construe
the word ‘released’ in the last sentence of section 303(b)(2) of the IIRIRA to refer to a
release from physical custody.”); Matter of Adeniji, 22 I&N Dec. at 1108-11 (accepting
the parties’ interpretation of the “released” language of the related provision in IIRIRA as
referring to “aliens who have been released from criminal (and perhaps psychiatric and
other non-Service) confinement”). A reading of section 236(c)(1) as a whole does not
suggest that Congress intended to limit the non-DHS custody to criminal custody
pursuant to a conviction for a crime that is the basis for detention under INA § 236(c)(1).
“‘Released’ in this context can also refer to release from physical custody following
arrest ….” Matter of West, 22 I&N Dec. at 1410.
When not in criminal custody
Where the alien is subject to mandatory detention based on removability for a noncriminal ground, there may be no requirement of physical custody at all. Under sections
236(c)(1)(A) and 236(c)(1)(D), an alien need not be convicted of any offense in order to
be removable as charged. For instance, sections 212(a)(2)(A),(C), (D), (E), (G), (H), and
(I), as well as section 212(a)(3)(B) and section 237(a)(4)(B), do not require a criminal
conviction.

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How soon after release?
According to the BIA, an alien who is released from criminal custody after the expiration
of the Transition Period Custody Rules is subject to mandatory detention even if the alien
is not immediately taken into custody by the government when released from
incarceration. Matter of Rojas, 23 I&N Dec. 117 (BIA 2001).
In Matter of Rojas, the BIA held that an alien was subject to mandatory detention under
236(c)(1), even though INS did not take him into custody immediately upon his release
from state custody. The Board found the “when released” language was not part of the
description of an alien who is subject to detention but merely clarifies when the
government has a duty to take the alien into immigration custody. Finding that the other
statutory provisions pertaining to the removal process do not place significance on when
INS takes an alien into custody, the Board concluded that “the ‘when released’ issue is
irrelevant for all other immigration purposes.” Id. at 122. The Board explained: “There
is no connection in the [INA] between the timing of an alien's release from criminal
incarceration, the assumption of custody over the alien by the Service, and the
applicability of any of the criminal charges of removability.” Id. The Board found: “The
history of the statutory mandate to detain criminal aliens does not indicate to us that
Congress had a different meaning in mind.” Id. The Board concluded that it would not
be consistent with its understanding of the INA’s “design” to construe 236(c)(1) so that it
“permits the release of some criminal aliens, yet mandates the detention of others
convicted of the same crimes, based on whether there is a delay between their release
from criminal custody and their apprehension by the Service.” Id. at 124.
The Board took issue with the decision of the U.S. District Court for the Western District
of Washington in Pastor-Camarena v. Smith, 977 F. Supp. 1415 (W.D. Wash. 1997), and
the other district court decisions that held that aliens must be taken into custody for
removal proceedings upon release from state custody. The Board criticized PastorCamarena for adopting “an incorrect ‘historical’” approach based on the notion that
immigration law historically distinguished between persons taken into custody from the
community at large and those taken into custody directly upon release from the criminal
justice system. Id. at 125-26. Pastor-Camarena and its progeny, the Board found, did not
lead it “to reject the interpretation that we otherwise find appropriate in view of the
statute as a whole.” Id. at 126. The Board has also stated that it is not bound to follow
the published decision of a federal district court even in cases arising in the same district.
See Matter of K-S-, 20 I&N Dec. 715, 718-20 (BIA 1993).
The BIA’s interpretation of 236(c)(1) in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001),
has not been adopted by most federal district courts that have considered whether
236(c)(1) applies when there is an interval between an alien’s release from nonimmigration custody and being taken into the custody of DHS. Most federal district
courts have held that the “plain language” of 236(c)(1) dictates a temporal requirement
that DHS must pick up aliens “when the alien is released,” and if Congress intended
another interpretation, it would have used other language. These courts are located in

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California, Oregon, Washington, Virginia, New Jersey, and Pennsylvania. See Roque v.
Chertoff, No. C06 0156 TSZ, 2006 WL 1663620 (W.D. Wash. June 12, 2006); Boonkue
v. Ridge, No. CV 04-566-PA, 2004 WL 1146525, at *1-2 (D. Ore. 2004); Quezada-Bucio
v. Ridge, 317 F. Supp. 2d 1221, 1228 (W.D. Wash. 2004) (“[B]ecause Petitioner was
taken into immigration custody years after he was released from state custody, as
opposed to ‘when [he was] released’ from that custody, INA § 236(c) does not apply.”),
further proceedings 161 Fed. Appx. 714 (W.D. Wash. Jan. 6, 2006), appeal pending No.
04-70891 (9th Cir. 2006); Tenrreiro v. Ashcroft, 2004 WL 1354277, *2 (D. Ore. Jun 14,
2004) (relying on Quezada-Bucio), vacated and transferred on reconsideration, 2004 WL
1588217 (D. Ore. Jul 12, 2004) (vacated on jurisdictional grounds); Alikhani v. Fasano,
70 F. Supp. 2d 1124 (S.D. Cal. 1999) (finding that “when” means “just after the moment
that” so that mandatory detention only applies to aliens who are detained at the time of
their release); Velasquez v. Reno, 37 F. Supp. 2d 663, 672 (D.N.J. 1999) (holding that the
plain language of the statute provides that an alien is to be taken into custody at the time
the alien is released); Grant v. Zemski, 54 F. Supp. 2d 437, 443 (E.D. Pa. 1999); Aguilar
v. Lewis, 50 F. Supp. 2d 539, 544 (E.D. Va.1999); Alwaday v. Beebe, 43 F. Supp. 2d
1130, 1133 (D. Ore. 1999); Velasquez v. Reno, 37 F. Supp. 2d 663, 672 (D.N.J. 1999);
Pastor-Camarena v. Smith, 977 F. Supp. 1415, 1417 (W.D. Wash. 1997).
Only the federal district courts in Texas have concluded that section 236(c)(1) does not
provide a temporal limitation on the authority of DHS to take aliens into mandatory
detention upon their release from non-DHS custody. See Okeke v. Pasquarell, 80 F.
Supp. 2d 635 (W.D. Tex. 2000); Serrano v. Estrada, 201 F. Supp. 714 (N.D. Tex. 2002)
(holding that there is no retroactivity concern with the application of INA § 236(c)(1) to
aliens taken into detention after the IIRIRA permanent rules became effective). The
Ninth Circuit, however, has found that a prior version of 236(c)(1) that used the phrase
“upon release” did not require INS to take aliens into custody immediately upon their
release from non-immigration custody. California v. United States, 104 F.3d 1086, 109495 (9th Cir. 1997) (“upon release” language of predecessor statute does not require
immigration authorities to take aliens into custody immediately upon their release from
state incarceration; decision of when to arrest criminal aliens is committed to agency
discretion and is not reviewable), cert. denied, 522 U.S. 806 (1997).
At least two federal district courts have stated that DHS has a reasonable period of time
under INA § 236(c)(1) to pick up an alien upon release from state custody. See Zabadi v.
Chertoff, No. C 05-03335 WHA, 2005 WL 1514122, at *5 (N.D. Cal. 2005) (“This order
holds that the Department of Homeland Security need not act immediately but has a
reasonable period of time after release from incarceration in which to detain.”); Grodzki
v. Reno, 950 F. Supp. 339, 342 (N.D. Ga.1996) (language “upon release … from
incarceration” implies custody commences within reasonable time after release from
incarceration). Another court upholding mandatory detention under section 236(c)(1) has
distinguished the facts of its case from other federal district court cases based on the
length of delay between the alien’s release from non-DHS/INS custody and the
assumption of custody by DHS/INS. See Serrano v. Estrada, No. 3-01-CV-1916-M,
2002 WL 485699, at *3 (N.D. Tex. March 6, 2002) (“petitioner was taken into INS
custody just six months after his release from prison”).

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F.

Arriving Aliens

The Immigration and Nationality Act provides that aliens who are seeking admission to
the United States and are subject to grounds inadmissibility must be detained if they do
not appear to the inspecting immigration officer to be “clearly and beyond a doubt”
entitled to enter. See INA § 235(b)(2)(A). The Immigration Court lacks jurisdiction to
redetermine custody/bond for arriving aliens. 8 C.F.R. §§ 236.1(c)(11), 1003.19(h)(2)
(i)(B).
Exceptions exist for crewman, stowaways and certain aliens subject to expedited
removal, who may be subject to detention under other provisions of law. See INA §§
235(b)(2)(B), 252(b) (crewmen), 235(a)(2) (stowaways), 235(b)(1)(B)(iii)(IV); Matter of
X-K-, 23 I&N Dec. 731 (BIA 2005) (alien amenable to expedited removal who was
found to have credible fear and placed in removal proceedings was entitled to bond
hearing). Another exception exists for aliens arriving at the land border with Canada or
Mexico whom DHS has returned to Canada or Mexico to await their removal hearing,
rather than be detained. See INA §§ 235(b)(2)(C).
Refugees are subject to detention one year after they are conditionally admitted to the
United States if they have not adjusted status to that of a lawful permanent resident alien.
See INA § 209(a)(1); Omanovic v. Crawford, 2006 WL 2256630 (D. Ariz. Aug 07, 2006)
(No. CV 06-0208-PHX); Andric v. Crawford, 2006 WL 1544184 (D. Ariz. May 31,
2006) (No. CV06-0002-PHX-SRB). Such refugees are properly detained for inspection
and examination regarding admissibility. Id.
Detention is the norm for arriving aliens. “Congress intended that detention be the
‘default’ choice, and parole a discretionary exception.” Barrera-Echavarria v. Rison, 44
F.3d 1441, 1446 (9th Cir. 1995) (en banc), cert. denied, 516 U.S. 976 (1995). “[I]n the
case of an alien who is an applicant for admission, if the examining immigration officer
determines that an alien seeking admission is not clearly and beyond a doubt entitled to
be admitted, the alien shall be detained for a [removal] proceeding under section 240 of
this title.” INA § 235(b)(2)(A) (emphasis added); see Tineo v. Ashcroft, 350 F.3d 382,
385-386 (3d Cir. 2003) (applying this provision to a returning LPR who was removable
for his criminal convictions).
An arriving alien has the burden of proving that he or she is “clearly and beyond doubt
entitled to be admitted and is not inadmissible under section 212.” INA § 240(c)(2), 8
C.F.R. § 1240.8(c). 3 “An alien’s freedom from detention is only a variation on the
3

The Government has the burden of proving the inadmissibility of arriving aliens with a colorable claim to
lawful permanent residence, according to preexisting law. See Landon v. Plasencia, 459 U.S. 21, 35
(1982); Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988). A returning permanent resident alien is
regarded as an “arriving alien” seeking admission if the alien falls within one of the following categories of
INA § 101(a)(13)(C):
a. has abandoned or relinquished that status;
b. has been absent from the United States for a continuous period in excess of 180 days;
c. has engaged in illegal activity after having departed the United States;

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alien’s claim of an interest in entering the country.” Clark v. Smith, 967 F.2d 1329, 1332
(9th Cir. 1992) (upholding INS detention of alien seeking entry to the United States,
during INS appeal from IJ decision granting withholding).
The decision to detain or release arriving aliens on parole, pending a determination of
their admissibility, is within the sole discretion of the Department of Homeland Security.
See 8 C.F.R. § 212.5. In enacting IIRIRA, the House Judiciary Committee stated that
parole is to be used sparingly:
Parole should only be given on a case-by-case basis for specified urgent
humanitarian reasons, such as life-threatening humanitarian medical
emergencies, or for specified public interest reasons, such as assisting the
government in a law-enforcement-related activity. It should not be used to
circumvent Congressionally-established immigration policy or to admit
aliens who do not qualify for admission under established legal
immigration categories.
H.R. Rep. 104-469(I) March 4, 1996, 104th Cong., 2nd Sess. 1996, 1996 WL 168955, at
141 (Immigration in the National Interest Act of 1995); see also Haddam v. Reno, 54 F.
Supp. 2d 602, 609 (E.D. Va. 1999) (alien bears a “heavy” burden of showing that the
public interest warrants parole).
No Joseph Hearing
The regulations governing custody proceedings before the Immigration Court expressly
provide that an Immigration Judge may not redetermine the conditions of custody
imposed by DHS with respect to arriving aliens in removal proceedings. See 8 C.F.R. §
1003.19(h)(2)(i)(B). The Board of Immigration Appeals has already held that an
Immigration Court has no authority under the regulations over the custody and detention
of arriving aliens and is without regulatory authority to consider the bond request of an
arriving alien. See Matter of X-K-, 23 I&N Dec. 731, 732 (BIA 2005) (“There is no
question that Immigration Judges lack jurisdiction over arriving aliens who have been
placed in section 240 removal proceedings, because they are specifically listed at 8
C.F.R. § 1003.19(h)(2)(i)(B) as one of the excluded categories.”); Matter of Oseiwusu, 22
I&N Dec. 19, 20 (BIA 1998).
Moreover, the BIA’s decision in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999), appears
to be inapplicable to custody proceedings involving aliens designated by the DHS as
arriving aliens because 8 C.F.R. § 1003.19(h)(2)(ii), the regulation upon which this Board

d. has departed from the United States while under legal process seeking removal of the alien from
the United States, including removal proceedings under the INA and extradition proceedings;
e. has committed an offense identified in section 212(a)(2) of the Act, unless since such offense
the alien has been granted relief under sections 212(h) or 240A(a) of the Act, or;
f. is attempting to enter at a time or place other than as designated by immigration officers or has
not been admitted to the United States after inspection and authorization by an immigration
officer.

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relied in Joseph, does not provide authority for an Immigration Judge to make a
determination that an alien is improperly included within 8 C.F.R. § 1003.19(h)(2)(i)(B).
In this regard, 8 C.F.R. §§ 1003.19(h)(2)(i)(B) and 1003.19(h)(2)(ii), prohibiting an
Immigration Judge from inquiring into whether an alien is properly designated as an
arriving alien for purposes of asserting jurisdiction over the custody proceeding of an
alien designated as an arriving alien by the DHS, are consistent with long-standing
immigration law. See Matter of Lepofsky, 14 I&N Dec. 718, 718 (BIA 1974); Matter of
Conceiro, 14 I&N Dec. 278, 279-82 (BIA 1973), aff’d, Conceiro v. Marks, 360 F. Supp.
454 (S.D.N.Y. 1973).
Judicial Review
Judicial review of the DHS or the Attorney General’s decision to deny parole is a highly
deferential one that need determine only whether there is a “facially legitimate and bona
fide reason” supporting the decision. See Jean v. Nelson, 472 U.S. 846, 853 (1985);
Fiallo v. Bell, 430 U.S. 797, 798-99 (1977); Kleindienst v. Mandel, 408 U. S. 753, 770
(1972); Haddam v. Reno, 54 F. Supp. 2d 602, 608-09 (E.D.Va. 1999) (the deferential
review “requires only that the district director articulate a permissible reason for his
action and identify the factual basis in the record for that reason”). “If such a reason is
advanced, the denial of parole is essentially unreviewable.” Nadarajah v. Gonzales, 443
F.3d 1069, 1082 (9th Cir. 2006) (citing Noh v. INS, 248 F.3d 938, 942 (9th Cir.2001)).

IV.

PROLONGED PRE-ORDER DETENTION

Two federal circuit courts have concluded that DHS cannot detain an alien for a
prolonged period of time without affording the alien an opportunity to have the
Immigration Court make an individualized custody/bond determination under INA §
236(a) and 8 C.F.R. § 1003.19(d). See Nadarajah v. Ashcroft, 443 F.3d 1069 (9th Cir.
2006); Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005); Ly v. Hansen, 351 F.3d 263 (6th
Cir. 2003).
In these decisions, the circuit courts read the Supreme Court’s five-to-four majority
decision in Demore v. Kim, 538 U.S. 510, 514 (2003), as authorizing mandatory
detention of removable aliens only for “the brief period necessary for their removal
proceedings.” See Nadarajah, 443 F.3d at 1080; Ly, 351 F.3d at 270-71. The Supreme
Court noted that removal proceedings normally proceed expeditiously:
The Executive Office for Immigration Review has calculated that, in 85%
of the cases in which aliens are detained pursuant to [INA § 236(c)],
removal proceedings are completed in an average time of 47 day and a
median of 30 days. In the remaining 15% of cases, in which the alien
appeals the decision of the Immigration Judge to the Board of Immigration
Appeals, appeal takes an average of four months, with a median time that
is slightly shorter.

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Demore, 538 U.S. at 529 (internal citations omitted).
Justice Anthony Kennedy provided the fifth vote for the majority, and he wrote that there
exists a point at which the length of detention becomes so egregious that it can no longer
be said to be “reasonably related” to an alien's removal. Id. at 532 (Kennedy, J.,
concurring). He stated that “since the Due Process Clause prohibits arbitrary
deprivations of liberty, a lawful permanent resident alien such as respondent could be
entitled to an individualized determination as to his risk of flight and dangerousness if the
continued detention became unreasonable or unjustified.” Id. at 532 (Kennedy, J.,
concurring).
In Nadarajah, the U.S. Court of Appeals for the Ninth Circuit ordered the release on
parole of an arriving, inadmissible alien who had been detained for nearly five years
pending the completion of his removal proceedings. Nadarajah, 443 F.3d at 1069. The
case had been certified to the Attorney General for review after the BIA upheld the
Immigration Court’s decision granting asylum and protection under the Convention
Against Torture. The Ninth Circuit held that DHS abused its decision in not granting
parole, and the circuit ordered the alien’s release.
The Ninth Circuit concluded that DHS cannot continue to detain an alien when there is
no significant likelihood of his removal in the reasonably foreseeable future. The Ninth
Circuit applied the six-month limitation on post-final-order detention from Zadvydas v.
Davis, 533 U.S. 678 (2001), and Clark v. Martinez, 543 U.S. 371 (2005), to pre-finalorder detention. The circuit stated: “[W]e conclude that after a presumptively reasonable
six-month detention, once the alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future, the Government
must respond with evidence sufficient to rebut that showing.” 443 F.3d at 1078.
The Ninth Circuit decision in Nadarajah seems most clearly to apply to an alien detained
more than six months who has been granted relief or found non-removable by the
Immigration Court. But it may also affect those cases where DHS has detained an alien
more than six months without a ruling on removability from the Immigration Court. In
those cases, DHS might be forced to present its case in district court on a petition for writ
of habeas corpus for the district court to decide whether “there is no significant likelihood
of removal in the reasonably foreseeable future.” Id. at 1079-80.
The Ninth Circuit in Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), also recognized a
limitation on the duration of detention during removal proceedings. The alien had been
deprived of his liberty by DHS for a period of over two years and eight months under
INA § 236(c)(1). In a brief, three-paragraph opinion, a divided panel of the Ninth Circuit
recognized the “substantial powers” of Congress with regard to aliens but found it
“constitutionally doubtful that Congress may authorize imprisonment of such duration for
lawfully admitted resident aliens who are subject to removal.” Id. at 1242 (per opinion of
Noonan, C.J., and opinion of Tashima, C.J., concurring in judgment). Consequently, the
court remanded to the district court with directions to grant the writ of habeas corpus

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unless the government within 60 days provided the alien with a bond hearing before an
Immigration Judge.
The Sixth Circuit observed that the Supreme Court's decision in Demore “specifically
indicated that [detentions pending removal] were usually relatively brief, but it did not
specifically hold that any particular length of time in a specific case would be
unreasonable or unconstitutional.” Ly v. Hansen, 351 F.3d 263, 270 (6th Cir. 2003). The
Sixth Circuit concluded that the proper interpretation of Demore was to “[construe] the preremoval detention statute to include an implicit requirement that removal proceedings be
concluded within a reasonable time, [thereby avoiding] the need to mandate the procedural
protections that would be required to detain deportable aliens indefinitely.” Ly, 351 F.3d at
270. Therefore, the Sixth Circuit “affirm[ed] the grant of habeas corpus and the district
court's finding that the incarceration for 18 months pending removal proceedings is
unreasonable, [without requiring] the United States to hold bond hearings for every criminal
alien detained under § 236.” Id. The court stressed that Ly's case was not the norm in part
because his deportation to Vietnam was not foreseeable due to that country's lack of a
repatriation agreement with the United States. When actual removal is not reasonably
foreseeable, the government may not continue to detain deportable aliens without a showing
of a “strong special justification” by the government that overbalances the alien's liberty
interest. Id. at 273.
At least one circuit court, however, has declined to distinguish Demore and to apply the
principles of Zadvydas to find prolonged detention under section 236(c) unconstitutional,
regardless of the length of the alien's detention. In Soberanes v. Comfort, 388 F.3d 1305
(10th Cir. 2004), the Tenth Circuit found the detention of more than two years pending
judicial review of a final removal order “neither indefinite nor potentially permanent like the
detention held improper in Zadvydas” but rather “directly associated with a judicial review
process that has a definite and evidently impending termination point” which was more
“more akin to detention during the administrative review process” upheld in Demore. 388
F.3d at 1311.
A federal district court has determined that Ly v. Hansen and Nadarajah v. Gonzales
require a finding that there is no significant likelihood of the alien’s removal from the
United States in the reasonably foreseeable future. Hussain v. Gonzales, -- F.Supp.2d --,
2007 WL 1805157 (E.D.Wis. May 22, 2007). Absent such a finding, neither case
supports a petition for habeas corpus. Id.
In any event, the remedy for a violation of due process for prolonged detention under INA §
236(c)(1) is a custody/bond hearing before the Immigration Court. See Tijani v. Willis, 430
F.3d 1241, 1242 (9th Cir. 2005) (“We remand to the district court with directions to grant
the writ unless the government within 60 days of this order provides a hearing to Tijani
before an Immigration Judge with the power to grant him bail unless the government
establishes that he is a flight risk or will be a danger to the community.”); Ly v. Hansen,
351 F.3d 263, 265 (6th Cir. 2003). Federal courts have upheld lengthy detention when the
alien had been afforded a custody/bond hearing before an Immigration Court. See, e.g.,
Doherty v. Thornburgh, 943 F.2d 204, 209-11 (2d Cir. 1991) (upholding detention without

21

2010FOIA4519.000231

bond of criminal alien pending deportation, even though detention was prolonged for 8
years), cert. dismissed sub nom. Doherty v. Barr, 503 U.S. 901 (1992); Agyeman v. INS
Assistant District Director Coachman, 74 Fed. Appx. 691, at *1 (9th Cir. 2003) (“Even
though Agyeman has been detained by the INS for over six years, his detention is
constitutionally valid.”).

V.

DISCRETIONARY DETENTION UNDER INA § 236(a)

If a detained alien is not required to be detained under INA § 236(c)(1)’s mandatory
detention provisions, INA § 236(a) “provides general authority for the detention of aliens
pending a decision on whether they should be removed from the United States.” Matter
of Guerra, 24 I&N Dec. 37, 37-38 (BIA 2006).
The Supreme Court noted over 50 years ago that Congress placed discretion in the
Attorney General to detain aliens without bond: “[D]iscretion was placed by the 1950
[Internal Security] Act in the Attorney General to detain aliens without bail.” Carlson v.
Landon, 342 U.S. 524, 539 (1952) (interpreting § 23 of the Internal Security Act). INA §
236(a) is “virtually identical” to the pertinent section of the 1950 Internal Security Act.
United States ex rel. Barbour v. District Director, 491 F.2d 573, 577 (5th Cir. 1974)
(“The wording in Section 242(a) [now Section 236(a)] is virtually identical to that in
Section 23 of the Internal Security Act of 1950.”). Thus, INA § 236(a) provides the same
authority to detain aliens without bond that the Supreme Court recognized long ago.
On the other hand, INA § 236(a) gives the Attorney General discretionary authority to
release the alien on bond if the Attorney General concludes, in the exercise of his broad
discretion, that the detainee’s release on bond is warranted:
[S]ection 236(a) of the Act merely gives the Attorney General the
authority to grant bond if he concludes, in the exercise of discretion, that
the alien’s release on bond is warranted. The courts have consistently
recognized that the Attorney General has extremely broad discretion in
deciding whether or not to release an alien on bond.
Matter of Guerra, 24 I&N Dec. 37, 39 (BIA 2006); see also United States ex rel. Barbour
v. District Director, 491 F.2d 573, 578 (5th Cir. 1974) (release on bail is a form of
discretionary relief); Makarian v. Turnage, 624 F.Supp. 181 (S.D. Cal. 1985) (Attorney
General has “wide discretion in determining whether and under what conditions to
release person pending final deportability determination”).
Immigration Judges now exercise this discretionary authority. INA § 236(a) empowers
the Attorney General to delegate to Immigration Judges the discretionary authority either
to continue to detain or to release an alien in removal proceedings, pending an
administratively final order of removal. See INA §§ 101(b)(4), 236(a). “The Attorney
General has delegated this authority to the Immigration Judges.” Matter of Guerra, 24
I&N Dec. at 38; compare 8 C.F.R. § 1003.10 (IJs exercise powers assigned by the

22

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Attorney General), with 8 C.F.R. § 1003.19(a) (IJs have power to conduct bond
hearings).

A.

Classes of Aliens for which the IJ has No Jurisdiction
to Redetermine Custody

The Immigration Courts are without authority to redetermine the conditions of custody
for certain classes of aliens listed in the regulation at 8 C.F.R. § 1003.19(h)(2)(i)(D). See
8 C.F.R. §§ 236.1(c)(11). Some of these classes of aliens are subject to mandatory
detention. See INA §§ 236(c)(1), 235(b)(2)(A). Others are not. Nevertheless, the
Attorney General has, by regulation, exercised his discretionary authority under INA §
236(a) not to release those classes of aliens. See Procedures for the Detention and
Release of Criminal Aliens by the Immigration and Naturalization Service and for
Custody Redeterminations by the Executive Office for Immigration Review, 63 Fed.Reg.
27441, 27443 (May 19, 1998) (citing cases in support of the proposition: “Agencies may
resolve matters of general applicability through the promulgation of rules even if a
statutory scheme requires individualized determination unless Congress has expressed an
intent to withhold that authority.”); cf. Matter of D-J-, 23 I&N Dec. 572, 583 (AG 2003)
(“The Attorney General is broadly authorized to detain respondent and deny his request
for bond, based on any reasonable consideration individualized or general, that is
consistent with the Attorney General’s statutory responsibilities.”). Therefore, the classes
of aliens listed in 8 C.F.R. § 1003.19(h)(2) are excluded from the Immigration Courts’
custody jurisdiction under INA § 236(a). Matter of X-K-, 23 I&N Dec. 731, 732 (BIA
2005).
The regulation provides as follows:
(i) Upon expiration of the Transition Period Custody Rules set forth in
section 303(b)(3) of Div. C. of Pub.L. 104-208, [on October 8, 1998] an
immigration judge may not redetermine conditions of custody imposed by
the Service with respect to the following classes of aliens:
(A) Aliens in exclusion proceedings;
(B) Arriving aliens in removal proceedings, including aliens paroled after
arrival pursuant to section 212(d)(5) of the Act;
(C) Aliens described in section 237(a)(4) of the Act [“Security and related
grounds”];
(D) Aliens in removal proceedings subject to section 236(c)(1) of the Act
(as in effect after expiration of the Transition Period Custody Rules) [on
October 8, 1998]; and

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(E) Aliens in deportation proceedings subject to section 242(a)(2) of the
Act (as in effect prior to April 1, 1997, and as amended by section 440(c)
of Pub.L. 104-132) [aliens convicted of an aggravated felony].
(ii) Nothing in this paragraph shall be construed as prohibiting an alien
from seeking a redetermination of custody conditions by the Service in
accordance with part 1235 or 1236 of this chapter. In addition, with
respect to paragraphs (h)(2)(i)(C), (D), and (E) of this section, nothing in
this paragraph shall be construed as prohibiting an alien from seeking a
determination by an immigration judge that the alien is not properly
included within any of those paragraphs.
8 C.F.R. § 1003.19(h)(2)(i).
The phrase “described in” in this regulation implies a broad reading of the detention
ground stated in the referenced statute; the phrase does not require that the alien be
charged with removability under INA § 237(a)(4). See Matter of Kotliar, 24 I&N Dec.
124, 126 (BIA 2007); United States v. Barial, 31 F.3d 216, 218 (4th Cir. 1994) (as used
in a criminal probation statute, “described in” is “a term that necessarily calls for a
broader reading” and means that “the focus is upon the type of conduct involved”).

B.

Burden of Proof

An alien detained pending a decision as to whether he or she is to be removed from the
United States does not have a right to be released on bond. Matter of Guerra, 24 I&N
Dec. 37, 39 (BIA 2006); Matter of D-J-, 23 I&N Dec. 572, 575 (AG 2003). The old legal
standard for bond hearings set forth in by the BIA in Matter of Patel, 15 I&N Dec. 666
(BIA 1976), which held that there is a presumption against detention, is no longer the
correct legal standard. Patel involved the application of a detention statute that is no
longer in effect. See Matter of Valdez, 21 I&N Dec. 703, 716-17 (BIA 1997) (discussing
Matter of Patel).
Bond hearings are now typically governed by INA § 236(a). In discretionary bond
determinations under INA § 236(a), an alien in removal proceedings has the burden of
demonstrating that the alien’s release would not pose a danger and that the alien is likely
to appear for any future hearings and possible removal:
An alien in a custody determination under [INA § 236(a)] must establish
that he or she does not present a danger to persons or property, is not a
threat to the national security, and does not pose a risk of flight. An alien
who presents a danger to persons or property should not be released during
pendency of removal proceedings.
Matter of Guerra, 24 I&N Dec. 37, 38 (BIA 2006); see Matter of Adeniji, 22 I&N Dec.
1102, 1111-1112 (BIA 1999) (citing 8 C.F.R. § 1236.1(c)(8)) (an alien in removal
proceedings has the burden of demonstrating that the alien’s “release would not pose a

24

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danger to persons or property and that the alien is likely to appear for any future
proceeding”).

1. Threat to National Security
An alien who poses a threat to national security should be detained as a matter of
discretion. See Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991) (“Although
Doherty does not appear to pose any direct threat to individual citizens, we already have
noted that, due to his PIRA affiliation, he may constitute a more general threat to national
security, [citation omitted], which is also a proper basis for detention, [citation omitted].
We believe that these considerations provide a valid basis for the continuing denial of
bail under section 1252 [now INA section 236(a)], notwithstanding the unusually long
detention that has resulted.”), cert. dismissed, 503 U.S. 901 (1992); United States ex rel.
Barbour v. INS, 491 F.2d 573, 578 (5th Cir. 1974) (“There is no question of the Attorney
General’s discretion under Section 242(a) [now Section 236(a)] of the Act to continue an
alien in custody during deportation proceedings upon a properly-made determination that
the release of an alien would be a danger to the national security of the United States.”).
“The Supreme Court has acknowledged … that where terrorism is a concern, ‘special
arguments might be made for forms of preventive detention and for heightened deference
to the judgments of the political branches with respect to matters of national security.’”
Hussain v. Gonzales, -- F.Supp.2d --, 2007 WL 1805157 (E.D.Wis. May 22, 2007)
(quoting Zadvydas v. Davis, 533 U.S. at 696).
In matters involving national security, DHS may consider a wide range of information
about the alien to determine whether the alien should be released. Such evidence may
include any law enforcement or intelligence information indicating that the alien has used
force or violence to oppose the U.S. government or has promoted or engaged in terroristrelated activities. See Carlson v. Landon, 342 U.S. 524, 541 (1952); Haddam v. Reno, 54
F. Supp.2d 602, 610 (E.D. Va. 1999) (upholding district director’s decision to deny
parole to alien who posed a national security risk and a risk of absconding; “the district
director has pointed to information from the Department of State, the F.B.I., and Interpol
suggesting Haddam’s association with terrorism and other violent activities”).
In Matter of D-J-, 23 I&N Dec. 572 (AG 2003), the Attorney General directed the BIA
and Immigration Courts to consider national security interests in bond proceedings
involving an influx of illegal aliens who arrived by sea and were arrested and detained
pending a decision on their removal. Citing his authority under INA § 236(a), the
Attorney General determined that the release of the respondent and the other illegal aliens
on bond “was and is unwarranted due to considerations of sound immigration policy and
national security that would be undercut.” Id. at 574. He continued, “I further determine
that respondent has failed to demonstrate adequately that he does not present a risk of
flight if released on bond and that he should be denied bond on that basis as well.” Id.
The Attorney General did not specify what factors aside from national security interests
might be considered in addition to danger to the community and flight risk. Such
additional factors will be determined on a case-by-case basis.

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The reader should refer to ICE OPLA’s National Security Law Division materials for
further information about national security grounds for detention.

2. Danger to the Community
A detained alien in removal proceedings must establish that he or she does not present a
danger to persons or property before the issue of his or her flight risk, and the amount of
bond necessary to ensure his or her presence at removal proceedings, become relevant.
See Matter of Adeniji, 22 I&N Dec. 1102, 1113 (BIA 1999) (in bond proceedings under
section 236(a) of the Act, “the alien must demonstrate that ‘release would not pose a
danger to property or persons’”) (citing Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA
1994) (“First, if the alien cannot demonstrate that he is not a danger to the community
upon consideration of the relevant factors, he should be detained in the custody of the
Service. [Citations omitted] However, if an alien rebuts the presumption that he is a
danger to the community, then the likelihood that he will abscond becomes relevant.”)).
“An alien who presents a danger to persons or property should not be released during
pendency of removal proceedings.” Matter of Guerra, 24 I&N Dec. 37, 38 (BIA 2006).
An alien convicted of an aggravated felony who was released from criminal custody
before October 8, 1998, is not subject to mandatory detention under INA § 236(c)(1) but
is presumed to pose a danger to persons or property and is to be held without bond unless
the alien proves otherwise. Compare Matter of Adeniji, 22 I&N Dec. 1102, 1107-13
(BIA 1999) (holding that INA section 236(c)(1) requires mandatory detention of a
criminal alien only if he or she is released from criminal custody after the TPCR expired
on October 8, 1998), with Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA 1994) (stating
presumption), and Matter of Noble, 21 I&N Dec. 672, 673-86 (BIA 1997) (same).
Danger to persons or property is not limited to the threat of violence. It includes drug
trafficking. See Matter of Guerra, 24 I&N Dec. 37, 41 (BIA 2006) (upholding IJ decision
to detain alien without bond based on criminal complaint that the alien was involved in
an alleged controlled substance trafficking scheme); Matter of Melo, 21 I&N Dec. 883,
885 n. 2 (BIA 1997) (holding that distribution of drugs is a danger to the safety of
persons that requires his detention); Matter of Drysdale, 20 I&N Dec. 815, 818 (BIA
1994) (commission of a serious drug trafficking crime presents a danger to the
community). It also includes non-violent property crimes. See Jones v. United States,
463 U.S. 354, 364-65 (1983) (approving civil commitment based on finding of insanity in
criminal trial for petit larceny: “The fact that a person has been found, beyond a
reasonable doubt, to have committed a criminal act certainly indicates dangerousness. …
We do not agree with petitioner's suggestion that the requisite dangerousness is not
established by proof that a person committed a non-violent crime against property. This
Court never has held that ‘violence,’ however that term might be defined, is a prerequisite
for a constitutional commitment.”).
The duty of the alien’s counsel to disclose the danger posed by his client is a developing
area of law. The American Bar Association (ABA) Model Code of Professional

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Responsibility (1969) and the ABA Model Rules of Professional Conduct (1983) permit
disclosure when a client threatens to seriously injure or kill a third person, but do not
require it. See ABA Model Code DR 4-101(C) (“A lawyer may reveal ... [t]he intention
of his client to commit a crime and the information necessary to prevent the crime.”);
ABA Model Rule 1.6(b)(1) (“A lawyer may reveal such information to the extent the
lawyer reasonably believes necessary ... to prevent the client from committing a criminal
act that the lawyer believes is likely to result in imminent death or substantial bodily
harm.”). Most jurisdictions have enacted the ABA version of this permissive rule.
However, at least a dozen jurisdictions require a lawyer to reveal client confidential
information to prevent the client from inflicting serious bodily harm or death upon a third
party. See Ariz. S. Ct. Rule 42 RPC 1.6(b); Conn. RPC 1.6(b); Fla. St. Bar Rule 4-1.6(b);
Ill. St. S. Ct. RPC 1.6; Nev. St. S. Ct. RPC 156(2); N.J. R. RPC 1.6(b)(1); N.M. R. RPC
16-106(B); N.D. R. RPC 1.6(a); Tex. St. RPC 1.05; Va. R. S. Ct. Pt. 6 § 2, C.P.R. DR. 4101; Wash. St. RPC 1.6(b)(1); Wis. St. RPC S.C.R. 20:1.6.
There are no reported cases where a court has imposed pecuniary liability on a lawyer for
failure to warn a third party of a client’s threats to seriously harm or kill the third party.
See Note, Lawyers and Domestic Violence: Raising the Standard of Practice, 9 MICH. J.
OF GENDER AND LAW 207, 232 (2003); Davalene Cooper, The Ethical Rules Lack Ethics:
Tort Liability When a Lawyer Fails to Warn a Third Party of a Client’s Threat to Cause
Serious Physical Harm or Death. 36 IDAHO L. REV. 479, 481 (2000). Courts, however,
have considered the issue with respect to other professional relationships, notably the
mental health therapist-patient relationship, and have found liability when the
professional has failed to warn a victim when the professional learned that the client or
patient intended to cause serious harm to a specific, identifiable victim. See, e.g.,
O'Keefe v. Orea, 731 So. 2d 680, 684-86 (Fla. Dist. Ct. App. 1st Dist. 1998), review
denied, 725 So. 2d 1109 (Fla. 1998); Petersen v. State, 100 Wash. 2d 421, 426-29, 671
P.2d 230, 236-37 (1983); Tarasoff v. Regents of University of California, 13 Cal. 3d 177,
118 Cal. Rptr. 129, 132-33, 529 P.2d 553, 557-58 (1976). Courts could begin to impose
liability on lawyers without forewarning. See State v. Hansen, 122 Wash. 2d 712, 721,
862 P.2d 117, 122 (1993) (“Whether a threat is a true or real threat is based on whether
the attorney has a reasonable belief that the threat is real. We hold that attorneys, as
officers of the court, have a duty to warn of true threats to harm members of the judiciary
communicated to them by clients or by third parties.”) (distinguishing Hawkins v. King
County, 24 Wash. App. 338, 602 P.2d 361 (1979), where appellate court declined to find
a common law duty on the part of an attorney to warn of a client’s intent to inflict serious
injury on a third person).

3. Flight Risk
An alien in removal proceedings bears the burden of proving that he or she does not
present a threat to the community and a risk of flight from further proceedings. See
Matter of Adeniji, 22 I&N Dec. 1102, 1111-13 (BIA 1999). Whether an alien has
rebutted the presumption against his or her release is a two-step analysis and, unless the
alien demonstrates that he or she is not a danger to the community, the alien should be
detained in DHS custody. See Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA 1994).

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Only where the alien has rebutted the presumption that he or she is a danger to the
community does the likelihood that he or she will abscond become relevant. Id.
Detaining an alien without bond is warranted when circumstances present a “strong risk that
the respondent will flee rather than appear for the deportation process.” Matter of Khalifah,
21 I&N Dec. 107, 111 (BIA 1995). Illegal presence or negative immigration history is an
indicator of flight risk. See, e.g., Matter of Melo, 21 I&N Dec. 883, 886 (BIA 1997);
Matter of Drysdale, 20 I&N Dec. 816-17.
A number of BIA decisions have addressed the following matters that may be considered
in deciding whether an alien poses a flight risk:
1. Whether the alien has had a fixed address in the United States. See Matter of
X-K-, 23 I&N Dec. 731, 736 (BIA 2005) (noting that, for many aliens, “the
recency of their arrival and their apprehension by immigration officials so close to
our borders may prove to be an indicator that they lack a stable address and work
history, family ties, or other favorable factors to support a discretionary release on
bond”); Matter of P-C-M-, 20 I&N Dec. 432, 435 (BIA 1992) (noting that the
alien “appears to have moved frequently since entering the country”).
2. Length and circumstances of residence in the United States. See Matter of XK-, 23 I&N Dec. at 736; Matter of Shaw, 17 I&N Dec. 177, 179 (BIA 1979)
(“There is no statement as to where the respondent resided in the country, how
long he lived there, or with whom he lived.”).
3. Family ties in the United States, particularly family members who can confer
immigration benefits on the alien. See Matter of P-C-M-, 20 I&N Dec. at 434
(“The respondent has no family in the United States and no other community
ties.”); Matter of Shaw, 17 I&N Dec. at 179 (“Other than an indication that he
has a lawful permanent resident uncle in this country, there is in fact no evidence
at all of community ties of any nature which would suggest his continuing
availability for future immigration proceedings.”); Matter of Patel, 15 I&N Dec.
666, 667 (BIA 1979).
4. Employment history in the United States, including its length and stability.
See Matter of P-C-M-, 20 I&N Dec. at 435 (noting that the alien “has no history
of steady employment”); Matter of Shaw, 17 I&N Dec. at 179 (“There is nothing
of record regarding the respondent’s employment history, or even an indication of
whether he was employed at the time of his arrest.”); Matter of Patel, 15 I&N
Dec. at 667.
5. Immigration record and manner of entry, including surreptitious or fraudulent
entries or subsequent conduct contrary to the terms of an alien’s lawful admission
such as use of aliases and false documents. See Matter of Shaw, 17 I&N Dec. at
179 n. 3 (“[A] greater bond will ordinarily be warranted in the case of a
respondent who entered the United States unlawfully (through evasion of
immigration authorities or use of a false identity) than in the case of a respondent,
otherwise similarly situated, who has entered this country lawfully using a true
identity.”); Matter of San Martin, 15 I&N Dec. 167, 169 (BIA 1974) (alien “used
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a surreptitious method to return to the United States after deportation” that shows
“disrespect for lawful process”); Matter of Moise, 12 I&N Dec. 102, 104-05 (BIA
1967) (violating in-transit without visa privileges by remaining to accept
employment).
6. Attempts to escape from authorities or other flights to avoid prosecution.
Matter of Patel, 15 I&N Dec. at 666.
7. Prior failures to appear for scheduled court proceedings. See Matter of Shaw,
17 I&N Dec. at 178; Matter of San Martin, 15 I&N Dec. at 168-69 (flight to avoid
criminal prosecution).
8. Criminal record, including extensiveness, recency and seriousness, indicating
consistent disrespect for law and ineligibility for relief from deportation. See
Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006) (“Immigration Judges are not
limited to considering only criminal convictions in assessing whether an alien is a
danger to the community.”); Matter of Andrade, 19 I&N Dec. 488, 489-91 (BIA
1987); Matter of Shaw, 17 I&N Dec. at 178-79; Matter of Patel, 15 I&N Dec, at
667. An alien’s criminal record is relevant to the setting of his bond because it is
indicative of character traits that may indicate whether he is likely to abscond.
Matter of P-C-M-, 20 I&N Dec. at 435 (finding that the alien’s convictions
“reflect adversely on his character with respect to his potential for absconding
upon release”); Matter of Andrade, 19 I&N Dec. at 489-91. An alien’s early
release from prison on parole does not necessarily reflect rehabilitation and,
therefore, such facts do not carry significant weight in determining the alien’s
flight risk. Matter of Andrade, 19 I&N Dec. 488, 490-91 (BIA 1987).
9. Being subject to prosecution for a serious crime in the country to which DHS
seeks to remove him. See Matter of Khalifah, 21 I&N Dec. 107, 111 (BIA 1995)
(upholding detention without bond of an alien wanted in Jordan for financial support
of bombing attacks on cinemas that resulted in injuries).
10. Probable ineligibility for relief from removal. See Bertrand v. Sava, 684 F.2d
204, 217 n. 16 (2d Cir. 1982) (“The fact that the petitioners are unlikely to
succeed on their immigration applications … suggests that they pose … a risk [to
abscond] if [released].”); Matter of Drysdale, 20 I&N Dec. 815, 818 (BIA 1994)
(holding that an alien’s ineligibility for any form of relief from deportation is a
factor that contributes to the likelihood that the alien will not appear for his
deportation hearing); Matter of Ellis, 20 I&N Dec. 641, 643 (BIA 1993). An alien
who is likely to be awarded relief from deportation is considered more likely to
appear for deportation proceedings than one who is unlikely to be awarded relief.
Matter of Andrade, 19 I&N Dec. at 491. “Some aliens may demonstrate to the
Immigration Judge a strong likelihood that they will be granted relief from
removal and thus have great incentive to appear for further hearings.” Matter of
X-K-, 23 I&N Dec. 731, 736 (BIA 2005). Where the alien has been found
removable and denied relief by the Immigration Court, the alien is likely to fail to
appear for removal and this justifies an increased bond. See Matter of Drysdale,
20 I&N Dec. 815, 818 (BIA 1994) (ineligibility for relief was a proper
consideration in determining bond); Matter of Sugay, 17 I&N Dec. 637, 640

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(BIA 1981) (fact that IJ had ordered alien deported and relief denied combined
with new evidence to justify increasing the amount of bond).
“An Immigration Judge has broad discretion in deciding the factors that he or she may
consider in custody determinations. The Immigration Judge may choose to give greater
weight to one factor over others, as long as the decision is reasonable.” Matter of Guerra,
24 I&N Dec. 37, 40 (BIA 2006) (upholding IJ’s determination that evidence of serious
criminal activity, even though it had not resulted in a conviction, outweighed other
factors, such that release on bond was not warranted).
The Immigration Court should not consider what difficulties there may be in executing a
final order of removal in redetermining bond. Matter of P-C-M-, 20 I&N Dec. 432 , 434
(BIA 1991) (IJ should not release an alien on the basis that the alien’s removal to Angola
appears unlikely).

C.

Other Bond Factors

Even if the detained alien demonstrates that “release would not pose a danger to persons
or property and that the alien is likely to appear for any future proceeding,” such a
demonstration, however, does not guarantee release because the Attorney General (or the
Immigration Court via delegated authority) may deny release as a matter of discretion
based on other factors:
The courts have consistently recognized that the Attorney General has
extremely broad discretion in determining whether or not to release an
alien on bond. Further, the Act does not limit the discretionary factors that
may be considered by the Attorney General in determining whether to
detain an alien pending a decision on asylum or removal.
Matter of Guerra, 24 I&N Dec. 37, 39 (BIA 2006) (citations omitted); accord Matter of
D-J-, 23 I&N Dec. 572, 575-576 (AG 2003); see also Doherty v. Thornburgh, 943 F.2d
204, 209 (2d Cir. 1991) (“It is axiomatic … that an alien’s right to be at liberty during the
course of removal proceedings is circumscribed by considerations of the national
interest.”), cert. dismissed, 503 U.S. 901 (1992).
In Matter of D-J-, the Attorney General directed the BIA and Immigration Courts to
consider national security interests in bond proceedings involving an influx of illegal
aliens who arrived by sea and were arrested and detained pending a decision on their
removal. Citing his authority under INA § 236(a), the Attorney General determined that
the release of the respondent and the other illegal aliens on bond “was and is unwarranted
due to considerations of sound immigration policy and national security that would be
undercut.” Id. at 574. He continued, “I further determine that respondent has failed to
demonstrate adequately that he does not present a risk of flight if released on bond and
that he should be denied bond on that basis as well.” Id. The Attorney General did not
specify what factors aside from national security interests might be considered in addition

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to danger to the community and flight risk. Such additional factors will be determined on
a case-by-case basis.

D.

Minimum Bond

For an alien in non-mandatory detention, the Immigration Court can either continue to
detain the alien or else release the alien on bond of not less than $1,500.00. INA § 236(a)
provides that, during pendency of removal proceedings against an arrested and detained
alien, the Attorney General, or his delegate “(1) may continue to detain the arrested alien;
and (2) may release the alien on – (A) bond of at least $1,500 with security approved by,
and containing conditions prescribed by, the Attorney General; or (B) conditional
parole.”
There is no provision of the Immigration and Nationality Act for the release of an alien in
removal proceedings on his or her own recognizance, without bond. Parole is available
only to arriving aliens applying for admission or aliens who are present without
admission. See INA § 212(d)(5); “Legal Opinion Discusses Parole for Persons who are
not Arriving Aliens,” 76 Interpreter Releases 1050 (July 12, 1999) (describing August
21, 1998, memorandum of INS General Counsel who concluded that the agency had the
authority to parole applicants for admission who were not arriving aliens (e.g., aliens
removable under INA § 212(a)(6)(A)(i)). Neither an Immigration Judge nor the BIA has
authority to grant parole or to review DHS parole decisions. See Matter of Oseiwusu, 22
I&N Dec. 19, 20 (BIA 1998); Matter of Matelot, 18 I&N Dec. 334, 336 (BIA 1982);
Matter of Castellon, 17 I&N Dec. 616 (1981).
No effect should be given to the explanatory comments to the EOIR regulation at 8
C.F.R. § 3.19 (renumbered 8 C.F.R. § 1003.19) that suggest Immigration Judges retain
authority to release aliens in removal proceedings on their own recognizance. See 66
Fed. Reg. 54909-02, 54910, 2001 WL 1334025 (October 31, 2001) (“The immigration
judge may then reduce the required bond amount, release the alien on his or her own
recognizance, or make such other custody decision as the immigration judge finds
warranted.”). These comments to a regulation cannot change the statutory minimum
bond requirement enacted by Congress. See Public Lands Council v. Babbitt, 529 U.S.
728, 745 (2000) (a “regulation cannot change the statute”). The regulation does not
authorize the court to release an alien on his or her own recognizance. Therefore, the
comment is mere dicta. An agency rule is not binding unless it is legislative in nature and
conforms to certain procedural requirements. Moore v. Apfel, 216 F.3d 864, 868 (9th
Cir. 2000). “To satisfy the second [requirement], it must have been promulgated
pursuant to a specific statutory grant of authority and in conformance with the procedural
requirements imposed by Congress.” Id. The comment to 8 C.F.R. § 3.19 is merely an
explanation of how bond proceedings generally proceed. See Peterson Builders, Inc. v.
United States, 26 Ct. Cl. 1227, 1229 n.3 (1992) (“While the court took guidance from the
comments to the interim regulations, they are in no way binding upon the court.”). It is
not a specific grant of authority to release aliens on their own recognizance.

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The language of INA § 236(a) makes plain that ordering release on the alien’s own
recognizance is no longer an option. The IIRIRA regulation on bond provides that an
alien may petition the Immigration Judge for “amelioration of the conditions under which
he or she may be released ... [and] the Immigration Judge is authorized to exercise the
authority in section 236 of the Act to detain the alien in custody, release the alien, and
determine the amount of bond, if any, under which the respondent may released, as
provided in § 1003.19 of this chapter.” 8 C.F.R. § 236.1(d). This regulation does not
change the statutory minimum bond: “While regulations may impose additional or more
specific requirements, they cannot eliminate statutory requirements.” Hunsaker v. Contra
Costa County, 149 F.3d 1041, 1043 (9th Cir. 1998). Since the statutory command is so
clear, the “if any” language has been construed as not referring to the statutory floor for
release decisions but rather to the ceiling at which bond may be set, although the BIA has
not yet issued a published decision.
Congress increased the minimum bond from $500 to $1,500 in section 303 of IIRIRA.
Compare INA § 242(a) (1995), with INA § 236(a) (2002). Congress did so because
bonds of $500 had become ineffective in assuring that aliens would appear for
proceedings or deportation:
[T]he conclusion that bond levels have often been set too low, sometimes
almost ludicrously so, seems inescapable. Unsystematic analyses
conducted in a number of districts demonstrate the obvious—that bond
breaches decline substantially as the bond amount increases. The current
bonding system was established long before the problems of illegal
migration and criminal aliens became urgent ones and at a time when INS
detention was not a viable option. Indeed, the statutory minimum bond
level had been $500 for decades until the new section 236(a)(2)(A) raised
the minimum to $1,500. Until now many aliens simply viewed the bond
premium (typically only 10% of the bond amount) as a routine cost of
doing business, a small price for illegal entry. In part, this pattern of low
bonds reflected the fact that bonds seemed to be set at a level designed to
assure public safety and aliens’ appearance at hearings, whereas bonds set
at a level necessary to assure their surrender for actual removal might
require a higher bond level.
Peter H. Schuck, INS Detention and Removal: A “White Paper,” 11 GEO. IMMIGR. L.J.
667 (1997). Obviously, Congress would not increase the minimum bond to $1,500 from
$500 if it wanted Immigration Judges to have the power to avoid setting bond altogether
by releasing aliens on their own recognizance, without any bond.

E.

Informal Hearing

A bond hearing before the Immigration Court is an informal hearing, and no hearing
transcript is usually made. Matter of Chirinos, 16 I&N Dec. 276, 277 (BIA 1977)
(“[T]here is no right to a transcript of a bond redetermination hearing. Indeed there is no
requirement of a formal ‘hearing.’”); Hass v. INS, No. 90 C 5513, 1991 WL 38258 at *4

32

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(N.D. Ill. March 15, 1991) (“The regulations do not provide for a transcript of bond
redetermination proceedings. 8 C.F.R. § 242.2(d) [recodified at 8 C.F.R. § 1003.19].
Bond redetermination proceedings are informal and not of record [i.e., not recorded
verbatim]. If plaintiff was concerned about the lack of a transcript, he could have
requested the Court to provide a court reporter….”). “It is well settled that there is no
requirement in bond proceedings for a formal hearing and that informal procedures may
be used so long as no prejudice results. As there is no right to discovery in deportation
proceedings, no such right exists in the less formal bond hearing procedure.” Matter of
Khalifah, 21 I&N Dec. 107, 112 (BIA 1995) (citation omitted). The BIA has
emphasized: “Our primary consideration in a bail determination is that the parties be able
to place the facts as promptly as possible before an impartial arbiter.” Matter of
Chirinos, 16 I&N Dec. 276, 277 (BIA 1977) (emphasis in original). The bond
redetermination may be conducted by telephone at the discretion of the Immigration
Judge. 8 C.F.R. § 1003.19(b).
A bond hearing is “separate and apart from, and shall form no part of, any deportation or
removal hearing.” 8 C.F.R. § 1003.19(d); accord Matter of Guerra, 24 I&N Dec. 37, 40
n. 2 (BIA 2006) (“Bond proceedings are separate and apart from the removal hearing.”);
Matter of R-S-H-, 23 I&N Dec. 629, 630 n. 7 (BIA 2003) (“We note that bond and
removal are distinctly separate proceedings.”). The Immigration Court and the parties
must create a complete and separate record of the custody/bond proceedings:
The parties and the Immigration Judge are responsible for creating a full
and complete record of the custody proceeding. … In any bond case in
which the parties or the Immigration Judge rely on evidence from the
merits case, it is necessary that such evidence be introduced or otherwise
reflected in the bond record (such as through a summary of merits hearing
testimony that is reflected in the Immigration Judge’s bond
memorandum). Otherwise, it will not be part of the bond record available
for our review on appeal.
Matter of Adeniji, 22 I&N Dec. at 1115.
“Information adduced during a removal hearing … may be considered during a custody
hearing so long as it is made part of the bond record.” Matter of Adeniji, 22 I&N Dec.
1102, 1115 (BIA 1999). Moreover, the same Immigration Court can preside at both the
bond hearing and removal hearing. Flores-Leon v. INS, 272 F.3d 433, 440 (7th Cir.
2001) (court rejected recusal motion where IJ decided both bond and removability). If
the Immigration Court fails to keep the bond hearing separate from the removal
proceeding and the alien appeals on that basis, the alien must show that prejudice ensued
from the commingling before the BIA will vacate the court’s bond determination. Matter
of Chirinos, 16 I&N Dec. 276, 277 (BIA 1977).

F.

Evidence at Bond Hearings

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By regulation, a bond redetermination “may be based on any information that is
available.” 8 C.F.R. § 1003.19(d). The Federal Rules of Evidence are inapplicable to
bond hearings. See United States v. Wadih El-Hage, 213 F.3d 74, 82 (2d Cir. 2000) (“A
detention hearing need not be an evidentiary hearing. While the defendant may present
his own witnesses and cross-examine any witnesses that the government calls, either
party may proceed by proffer and the rules of evidence do not apply.”), cert. denied, 531
U.S. 881 (2000); FED.R.EVID. 1101(d)(3) (exempting bail hearings from the evidentiary
rules prohibiting the use of hearsay); cf. 18 U.S.C. § 3142(f) (“The rules concerning
admissibility of evidence in criminal trials do not apply to the presentation and
consideration of information at the [bail] hearing.”).
The legal standard for admissibility of evidence in a removal hearing is that the evidence
be probative and fundamentally fair. Lopez-Chavez v. INS, 259 F.3d 1176, 1181 (9th
Cir. 2001); Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir. 1996); Bustos-Torres v. INS, 898
F.2d 1053, 1055 (5th Cir.1990); Matter of Ponce-Hernandez, 22 I&N Dec. 784, 785 (BIA
1999). The evidentiary standard in bond hearings is even more relaxed than in a removal
hearing. See 8 C.F.R. § 1003.19(d); Matter of Khalifah, 21 I&N Dec. 107, 112 (BIA
1995); Matter of Chirinos, 16 I&N Dec. 276, 277 (BIA 1977). “Any evidence that in the
record that is probative and specific can be considered [at a bond hearing].” Matter of
Guerra, 24 I&N Dec. 37, 40-41 (BIA 2006) (upholding IJ’s reliance on criminal
complaint signed by a DEA agent). This is one reason why a bond hearing is “separate
and apart from, and shall form no part of, any deportation or removal hearing.” See 8
C.F.R. § 1003.19(d); Matter of Chirinos, 16 I&N Dec. 276, 277 (BIA 1977) (“The
requirement of a separate bond procedure and record is part of the effort to divorce, as far
as possible, the bond matter from the deportation hearing.”).
Over 20 years ago, Justice Stephen Breyer, then a circuit judge, wrote that it is a “wellestablished proposition of law” that detention decisions may be based on proffers of
evidence and hearsay offered by the prosecution:
[M]agistrates and judges traditionally have been permitted to base their
decisions, both as to release conditions and as to possible detention, on
hearsay evidence, such as statements from the prosecution or the
defendants about what they can prove and how. This authority rests
primarily upon the need to make the bail decision quickly, at a time when
neither party may have fully marshalled all the evidence in its favor. It
may also reflect the realization that at least some hearsay on some
occasions may be fairly reliable, perhaps more reliable than certain direct
evidence. For example, well-kept records, though hearsay, may be more
reliable than eyewitness accounts of, say, a road accident on a foggy night.
In any event, the need for speed necessarily makes arraignments,
“probable cause” determinations, and bail hearings typically informal
affairs, not substitutes for trial or even for discovery. Often the opposing
parties simply describe to the judicial officer the nature of their evidence;
they do not actually produce it.

34

2010FOIA4519.000244

United States v. Acevedo-Ramos, 755 F.2d 203, 206 (1st Cir. 1985) (Breyer, J.).
Other circuits have held that federal courts have discretion to accept proffers of evidence,
without witnesses, at pretrial detention hearings. See United States v. LaFontaine, 210
F.3d 125, 131 (2d Cir. 2000) (“It is well established in this circuit that proffers are
permissible both in the bail determination and bail revocation contexts. … [T]his court
stated that ‘it would [not] be an abuse of discretion for the district court to permit the
government to proceed by proffer alone.’”); United States v. Smith, 79 F.3d 1208, 1210
(D.C. Cir. 1996) (“Every circuit to have considered the matter, … permitted the
Government to proceed by way of proffer [at a detention hearing].”); United States v.
Gaviria, 828 F.2d 667, 669 (11th Cir. 1987) (“We hold that the government as well as the
defense may proceed by proffering evidence subject to the discretion of the judicial
officer presiding at the detention hearing.”); United States v. Winsor, 785 F.2d 755, 756
(9th Cir. 1986) (“As in a preliminary hearing for probable cause, the government may
proceed in a detention hearing by proffer or hearsay. [Citations omitted] The accused
has no right to cross-examine adverse witnesses who have not been called to testify.”).
Where the proffer is disputed, however, the court might be required to allow crossexamination. The Third Circuit has held that the court has discretion to require, in an
appropriate case, that the testimony of a witness be presented in person, rather than by
hearsay evidence. United States v. Accetturo, 783 F.2d 382 (3d Cir. 1986). The First and
Second Circuits reached similar conclusions. See United States v. Acevedo-Ramos, 755
F.2d 203, 207-208 (1st Cir. 1985); United States v. Martir, 782 F.2d 1141 (2d Cir. 1986).
The Ninth Circuit has held that there is no right to cross-examine adverse “witnesses”
who have not been called to testify. But when there is a proffer from defendant that the
Government’s proffer was incorrect, the court might be required to allow crossexamination. United States v. Winsor, 785 F.2d 755, 756 (9th Cir. 1986).

G.

Bond Decision

As required by regulation at 8 CFR § 1003.19(f), the determination of the Immigration
Court on custody/bond shall be entered on the appropriate form at the time the decision is
made, and “the parties shall be informed orally or in writing of the reasons for the
decision.” Where removability is not conceded and the alien appears eligible for bond or
other relief, the Immigration Judge may have to make findings of fact and conclusions of
law. See Matter of A-P-, 22 I&N Dec. 468 (BIA 1999) (discussing requirements for a
summary decision in removal proceedings).

VI.

SUBSEQUENT BOND REDETERMINATION

After the Immigration Court has redetermined bond, any request for a subsequent bond
redetermination “shall be made in writing and shall be considered only upon a showing
that the alien’s circumstances have changed materially since the prior bond
redetermination.” 8 C.F.R. § 1003.19(e). There is no limit on the number of bond

35

2010FOIA4519.000245

redetermination requests that may be filed. Matter of Valles, 21 I&N Dec. 769, 771 (BIA
1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989) (“Bond proceedings are not
really ‘closed’ so long as a respondent is subject to a bond.”). However, the Immigration
Court can decline to change its last bond decision if there has been no change in
circumstances. Matter of Valles, 21 I&N Dec. at 771; Matter of P-C-M-, 20 I&N Dec.
432, 435 (BIA 1992) (finding “no change of circumstances which would warrant relief
from the previous bond determination”).
Alternatively, either party may submit to the Immigration Court a motion to reconsider
the custody/bond decision or a motion to reopen the bond hearing. See Matter of
Gordon, 20 I&N Dec. 52, 56 (BIA 1989) (referring to an “immigration judge's inherent
power to reopen and reconsider his own decisions”); cf. 8 C.F.R. § 1003.23 (motions to
reopen and reconsider in removal proceedings); Matter of Valles, 21 I&N Dec. at 771
(“The bond regulations, which establish unique and informal proceedings, do not
specifically address motions to reopen and do not expressly limit a detained alien to one
application for modification of the amount or terms of a bond.”). A motion to reopen
may be appropriate if the Government wants to submit additional evidence to the court
that was unavailable but the alien’s circumstances have not changed since the court
redetermined bond.

VII. BOND REVOCATION
Immigration bond “is a privilege extended … on a contingent, nonabsolute basis, entirely
subject to change.” Matter of Valdez, 21 I&N Dec. 703, 713 (BIA 1997) (upholding INS
rearrest and revocation of bond of an alien who had been released on bond before the
Transition Period Custody Rules took effect). DHS may at any time revoke a bond or
parole authorized for an alien, rearrest the alien under the original warrant, and detain the
alien. INA § 236(b); 8 C.F.R. § 1236.1(c)(9). “[T]he regulations presently provide that
when an alien has been released following a bond proceeding, a district director has
continuing authority to revoke or revise the bond, regardless of whether the Immigration
Judge or this Board has rendered a bond decision.” Matter of Valles, 21 I&N Dec. 769,
772 (BIA 1997).
In Matter of Sugay, 17 I&N Dec. 637, 639-40 (BIA 1981), the Board of Immigration
Appeals upheld the revocation of bond by INS based on a change of circumstances after
the Immigration Court had redetermined bond and reduced it. The BIA ruled that newly
developed evidence brought out at the alien’s deportation hearing, combined with the fact
that the Immigration Court had denied his applications for relief and ordered him
deported, represented a considerable change of circumstances that justified the district
director’s decision to raise the amount of bond. The Board stated: “We find without
merit counsel’s argument that the District Director was without authority to revoke bond
once an alien has had a bond redetermination hearing.” Id. at 640.

36

2010FOIA4519.000246

VIII. BOND APPEALS
Both DHS and the alien have the right to appeal a custody/bond decision by the
Immigration Court to the Board of Immigration Appeals. See 8 C.F.R. §§ 1003.19(f),
236.1(d)(3) and 1236.1(d)(3). Either party must file the notice of appeal with the Board
within 30 days of the judge’s decision. See 8 C.F.R. §§ 1003.19(f). If an alien appeals a
DHS decision on bond, the alien must file the notice of appeal within ten (10) days. 8
C.F.R. § 1236.1(d)(3)(ii). In any case, there is no appeal fee. See Board of Immigration
Appeals Practice Manual, Ch. 7, 1999 WL 33435432 (2004). The Board will set a
briefing schedule, but usually it will not prepare and provide the parties with a transcript
of the bond proceeding. Id.
A bond appeal and a removal decision appeal cannot be combined. The briefing
schedules are independent of each other. Id. Each requires a separate brief. Combining
or simultaneously filing an untimely notice of appeal or untimely brief contesting a bond
decision, with a timely notice of appeal or timely brief contesting a removal decision, will
not prevent the BIA from rejecting or dismissing the bond appeal. Id. The filing of an
appeal does not delay compliance with the bond decision, nor does it stay proceedings or
removal. 8 C.F.R. § 1236.1(d)(4).
When appropriate, an Immigration Judge may entertain a subsequent bond
redetermination request, even when a previous bond redetermination by the Immigration
Judge is on appeal to the BIA. Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997).
In bond proceedings, an alien remains free to request a bond
redetermination at any time without a formal motion, without a fee, and
without regard to filing deadlines, so long as the underlying deportation
proceedings are not administratively final. In other words, no bond
decision is final as long as the alien remains subject to a bond.
Id. (emphasis added).
If a bond redetermination request is granted by an Immigration Judge while a bond
appeal is pending with the BIA, any appeal filed by the party making the request is
rendered moot. Id. at 773. If the Immigration Court entertains a bond redetermination
request during the Government’s bond appeal, the Government must notify the BIA in
writing, with proof of service on the opposing party, within 30 days, if it wishes to pursue
its original bond appeal. Id. at 773.

IX.

STAY OF RELEASE FROM DETENTION

If DHS appeals an Immigration Court’s bond/custody decision, DHS may request a stay
of release from the BIA during the pendency of its appeal or invoke the automatic stay
provision. 8 C.F.R. § 1003.19(i).

37

2010FOIA4519.000247

A.

Automatic Stays

In cases where DHS determined an alien should not be released on bond or where bond is
set higher at $10,000 or more and the Immigration Court authorizes release of the alien,
on bond or otherwise, the DHS can obtain a temporary automatic stay of release by filing
a notice of intent to appeal custody redetermination (Form EOIR-43) within one (1) day
of the issuance of the Immigration Judge’s order. 8 C.F.R. § 1003.19(i)(2). ICE OPLA
headquarters must approve any Form EOIR-43 before it is filed. Upon filing of the form,
release is automatically stayed until the BIA decides the bond appeal. Id.; Matter of
Joseph, 22 I&N Dec. 660 (BIA 1999), clarified, Matter of Joseph, 22 I&N Dec. 799 (BIA
1999).
If the DHS fails to file an appeal with the BIA within ten (10) days of the Immigration
Judge’s decision, as required under 8 C.F.R. § 1003.38, the automatic stay expires. 8
C.F.R. § 1003.6(c)(1). To preserve the stay, DHS must file, along with the notice of
appeal, a certification by a senior legal official that the official has approved the filing
and is satisfied that there is evidentiary support for continuing detention and the legal
arguments are warranted. Id.
If the BIA has not acted on the custody appeal, the automatic stay lapses 90 days after the
notice of appeal was filed. 8 C.F.R. § 1003.6(c)(4). The 90-day period can be extended,
if the BIA grants the alien an enlargement of time to file a custody brief. Id. Before the
lapse of the automatic stay period, DHS can request a discretionary stay of release. 8
C.F.R. § 1003.6(c)(5). [See next section.]
If the BIA authorizes the alien’s release, denies a motion for discretionary stay, or fails to
act on a discretionary stay motion before the automatic stay period ends, the alien’s
release is stayed automatically for five (5) business days. 8 C.F.R. § 1003.6(d). Within
that period, the Secretary of DHS or designee can certify the Board’s custody order to the
Attorney General, and then release is further stayed for fifteen (15) days until the AG
makes a decision. Id. DHS can also request a discretionary stay from the AG. Id.
The automatic stay regulation was designed to ensure removal by preventing flight during
the pendency of proceedings and to protect the public from potential harm. See Hussain
v. Gonzales, -- F.Supp.2d --, 2007 WL 1805157 (E.D.Wis. May 22, 2007); Ashley v.
Ridge, 288 F. Supp. 2d 662, 664-65 (D.N.J. 2003). In promulgating the regulation, the
Department of Justice stated that the purpose of the automatic stay provision was to
“allow the Service to maintain the status quo while it seeks review by the Board, and
thereby avoid the necessity for a case-by-case determination of whether a stay should be
granted in particular cases in which the Service had previously determined that the alien
should be kept in detention and no conditions of release would be appropriate.”
Executive Office for Immigration Review, Review of Custody Determinations, 66 Fed.
Reg. 54909 (Oct. 31, 2001). The regulation was implemented on an emergency basis and
made effective on October 31, 2001.

38

2010FOIA4519.000248

Federal courts are divided as to whether the automatic stay provision is lawful and
constitutional. Some courts have found the automatic-stay regulation both lawful and
constitutional. See Pisciotta v. Ashcroft, 311 F. Supp. 2d 445 (D.N.J. 2004); Chambers
v. Ashcroft, No. 03-6762, 2004 WL 759645 (E.D. Pa. Feb. 27, 2004); Marin v. Ashcroft,
No. 04-CV-675, 2004 WL 3712722 (D.N.J. Mar. 17, 2004); Perez-Cortez v. Maurer, No.
03-2244 (D. Colo. Nov. 20, 2003); Inthathirath v. Maurer, No. 03-2245 (D. Colo. Nov.
20, 2003); Alameh v. Ashcroft, No. 03-6205, 2004 WL 3712718 (D.N.J. Jan. 6, 2004).
Other courts have held it is an unconstitutional violation of substantive and procedural
due process and/or invalid as ultra vires to the statute. See Zabadi v. Chertoff, No. C 0501796 WHA, 2005 WL 1514122 (N.D. Cal. 2005); Zavala v. Ridge, 310 F. Supp. 2d
1071 (N.D. Cal. 2004); Ashley v. Ridge, 288 F. Supp. 2d 662 (D.N.J. 2003); Uritsky v.
Ridge, 286 F. Supp. 2d 842 (E.D. Mich. 2003); Bezmen v. Ashcroft, 245 F. Supp. 2d 446
(D. Conn. 2003).
These court decisions addressed the previous regulation under which the duration of the
automatic stay was indefinite. Hussain v. Gonzales, -- F.Supp.2d --, 2007 WL 1805157
(E.D.Wis. May 22, 2007). EOIR made revisions to the automatic stay regulation in 2006.
A final rule to revise the existing interim rule authorizing DHS to invoke an automatic
stay was published in the Federal Register, with an effective date of November 1, 2006.
The preamble to the 2006 regulation addresses the due process concerns raised by
commentators. See EOIR, Review of Custody Determinations, 71 Fed. Reg. 57873,
57876-57881 (Oct. 2, 2006). The current regulation provides that the automatic stay will
lapse 90 days after the filing of the notice of appeal. 71 Fed. Reg. 57873, 57874.
Interestingly, the automatic stay provision is used infrequently:
Past experience shows that DHS has invoked the automatic stay in only a
select number of custody cases. For example, the EOIR statistics indicate
that, in FY 2004, the immigration judges conducted some 33,000 custody
hearings and the Board adjudicated 1,373 custody appeals. Yet, DHS
sought an automatic stay only with respect to 273 aliens in FY 2004—and
only 43 aliens in FY 2005.
As noted above, the final rule imposes new time limits on the duration of the automatic
stay of IJ release orders and new procedures for the IJs and the Board to expedite the
appellate process for automatic stay cases (see sections 1003.6(c) and 1003.19(i)(2)), and
also clarifies the process for DHS to seek a discretionary stay (sections 1003.6(c)(4) &
(5) and 1003.19(i)(1)). The final rule also provides a revised rule for Attorney General
review of any BIA custody decision, which is not tied explicitly to whether DHS had
invoked the automatic stay at the IJ level (see section 1003.6(d)). 71 Fed. Reg. at 57878
(commentary to final rules at 8 C.F.R. §§ 1003.6 & 1003.19).

B.

Discretionary Stays

The Board has the authority to stay the release of an alien either when DHS appeals a
custody decision or on its own motion. 8 C.F.R. § 1003.19(i)(1). DHS can seek a
discretionary stay of release in connection with a custody appeal at any time. Id. This

39

2010FOIA4519.000249

includes during the time an automatic stay is pending. 8 C.F.R. § 1003.6(c)(5). This
provision used to be referred to as an “emergency” stay. See 8 C.F.R. § 1003.19(i)(1)
(2006). However, the preamble to the final rule governing stays of release makes it clear
that the discretionary stay can be requested on either an emergency or non-emergency
basis. See 71 Fed. Reg. at 57876.

X.

BREACH OF BOND

“A bond is breached when there has been a substantial violation of the stipulated
conditions.” 8 C.F.R. § 103.6(e). DHS may breach the bond of an alien who does not
timely appear for the alien’s removal hearing. Matter of Arbelaez, 18 I&N Dec. 403,
405-06 (R.C. 1983). Moreover, DHS may breach the bond of an alien who fails to appear
after the alien or the bond obligor receives a “bag and baggage” letter requiring the
alien’s appearance for removal. See Ruiz-Rivera v. Moyer, 70 F.3d 498, 501-02 (7th Cir.
1995) (failure to appear after stay of removal denied); Int’l Fidelity Ins. Co. v. INS, 623
F.Supp. 45, 46-47 (S.D.N.Y. 1985); Matter of Allied Fidelity, 19 I&N Dec. 124, 126-29
(Comm. 1984) (filing petition for writ of habeas corpus does not excuse failure to
surrender). A bond breach may be appealed to the USCIS Administrative Appeals Office
(AAO) (formerly, the Administrative Appeals Unit). See McLean v. Slattery, 839 F.
Supp. 188, 190-92 (E.D.N.Y. 1993) (requiring obligor to exhaust administrative
remedies).
DHS must send notice of breach of bond to the bond obligor. 8 C.F.R. § 103.6(e); see
Hrubec v. INS, 828 F. Supp. 251, 253-54 (S.D.N.Y. 1993), aff'd without opinion, 41 F.3d
1500 (2d Cir. 1994) (up to INS to determine if bond breached but, since no proper notice,
appeal to AAU remained available); International Fidelity Insurance Company v.
Crosland, 490 F. Supp. 446, 448 (S.D.N.Y. 1980) (vacated breach of bond after finding
alien inadvertently failed to appear, caused in part by the fact that no notice requiring his
appearance had been sent to him, and his attorney thereafter contacted INS and offered to
have the alien appear upon request).
“Substantial performance of all conditions imposed by the terms of a bond shall release
the obligor from liability.” 8 C.F.R. § 103.6(c)(3).
Substantial performance exists where there is no willful violation of the
terms or conditions of the bond, where the conditions are honestly and
faithfully complied with, and where the only variance from their strict and
literal performance consists of technical or unimportant occurrences.
Substantial violations are those acts which constitute a willful departure
form the terms or conditions of the bond, or the failure to comply or
adhere to the essential elements of those terms or conditions.
Matter of Allied Fidelity, 19 I&N Dec. 124, 127 (Comm. 1984). A federal court found
substantial performance where the alien’s attorney had mailed a request for continuance

40

2010FOIA4519.000250

seven days before hearing date and requested notification if there was any problem with
continuance, and no showing was made of intention to evade responsibilities. GomezGranados v. Smith, 608 F. Supp. 1236, 1238-39 (D. Utah 1985).

41

2010FOIA4519.000251

DEPARTMENT OF
HOMELAND SECURITY
ICE

NEW ATTORNEY
ORIENTATION
MANUAL
VOLUME II

2007

2010FOIA4519.000252

These outlines and practice guides are intended to serve as new attorney orientation and
reference materials. Although each document has been thoroughly researched and
carefully prepared, please note that these documents are not intended to be a
comprehensive guide to the immigration and customs laws of the United States or the
policies and practices of the ICE Office of the Principal Legal Advisor. Please pay close
attention to the latest revision date of each document. Laws, case authority, and
Government policies change frequently, and it is important to check regularly for updated
guidance.

2010FOIA4519.000253

ATTORNEY ORIENTATION INDEX
Tab 1

Orientation Schedule

Tab 2

ABC & TPS

Tab 3

Acronyms

Tab 4

Adjustment of Status

Tab 5

Administrative Removal

Tab 6

Appeal Guidance, EOIR-26, EOIR-43

Tab 7

Asylum, Withholding, & Convention Against Torture

Tab 8

Background & Security Checks

Tab 9

Cancellation of Removal: LPRs

Tab 10

Cancellation of Removal: Non-LPRs

Tab 11

Citizenship & Naturalization

Tab 12

Competency

Tab 13

Confidentiality

Tab 14

Custody & Bond

Tab 15

Customs

Tab 16

Ethics

Tab 17

Evidence

Tab 18

Expedited Removal

Tab 19

FOIA & PA

Tab 20

Forms & Fees

Tab 21

Gems

Tab 22

HRLD

2010FOIA4519.000254

Tab 23

Inadmissibility

Tab 24

Internet Research

Tab 25

IJ Jurisdiction

Tab 26

Juveniles

Tab 27

MC Preparation

Tab 28

Motions to Reopen

Tab 29

NSLD

Tab 30

Notices to Appear

Tab 31

NTA Charges: Drafting Guidelines & Form I-261

Tab 32

Prosecutorial Discretion

Tab 33

Removal Manual

Tab 34

Significant Case Report (SCR)

Tab 35

Statutory Authority

Tab 36

Stipulated Orders

Tab 37

VAWA, U & T Visas

Tab 38

Visas: Immigrant & Nonimmigrant

Tab 39

Visa Waiver Program

Tab 40

Voluntary Departure & Withdrawal of Application for
Admission

Tab 41

Waivers

Tab 42

Witness Preparation & Expert Witness Cross-Examination

Tab 43

Reserved for Local Numbers

Tab 44

Reserved for Worksite Enforcement

2010FOIA4519.000255

DEPARTMENT OF
HOMELAND SECURITY
ICE

NEW ATTORNEY
ORIENTATION
MANUAL
2007
2010FOIA4519.000256

These outlines and practice guides are intended to serve as new attorney orientation and
reference materials. Although each document has been thoroughly researched and
carefully prepared, please note that these documents are not intended to be a
comprehensive guide to the immigration and customs laws of the United States or the
policies and practices of the ICE Office of the Principal Legal Advisor. Please pay close
attention to the latest revision date of each document. Laws, case authority, and
Government policies change frequently, and it is important to check regularly for updated
guidance.

2010FOIA4519.000257

The Nature of Foreign Governments
and Removal of Aliens Under the
Convention Against Torture
Greg Mack, Senior Litigation Counsel, OIL
John Gountanis, Senior Attorney (Chicago)
Mike P. Davis, APLD Deputy Chief

Protection Law Conference
Atlanta, Georgia
May 2008

u.s. Immigration

and Customs
Enforcement

2010FOIA4519.000258

CAT:
Failed
States

Lesson Overview
• The Legal Framework for Removing Aliens
to a Specific Country
• The Jama Case and Removal to Countries
Without a Central Functioning Government
• Litigating Convention Against Torture
Claims With Respect to Countries with
Weak or Non-Existent Central Governments
• Surviving Judicial Review

2010FOIA4519.000259

CAT:
Failed
States

INA § 241
•
•
•
•

INA § 241(b)
“Countries to which aliens may be removed”
INA § 241(b)(1) - Arriving Aliens
INA § 241(b)(2) - Other Aliens

2010FOIA4519.000260

CAT:
Failed
States

Arriving Aliens
INA § 241(b)(1)
• (A) General Rule: arriving aliens who are
placed into INA § 240 proceedings at the
time of arrival shall be removed to the
country where they boarded the
aircraft/vessel on which they arrived in the
United States.
• (B) Exception 1 -“Contiguous Territory” /
“Island Adjacent” (i.e., Canada, Mexico,
Caribbean): “removal shall be to the
country in which the alien boarded the
vessel that transported the alien to the
territory or island.”
•

Example: Brazilian national flies to Mexico City
and takes bus to U.S. - Mexico border, seeking
asylum at land-border port-of-entry. Removal
country is Brazil, rather than Mexico.2010FOIA4519.000261

CAT:
Failed
States

Arriving Aliens
INA § 241(b)(1)
• (C) Exception 2 - “Alternative Countries”: If
“government of the country” designated in
general rule and exception 1 “is unwilling to
accept the alien into that country’s territory,”
removal shall be to one of the follow
• (i) country of which the alien is citizen,
subject, or national;
• (ii) country in which the alien was born;
• (iii) country in which the alien has a
residence;
• or if removal to any of these is
“impracticable, inadvisable, or impossible,”
then to
• (iv) a country with a government that will
accept the alien
2010FOIA4519.000262

CAT:
Failed
States

Other Aliens
INA § 241(b)(2)
• (A) General Rule: Alien designates one
country to which he or she “wants to be
removed” and alien shall be removed to that
country.
• Consider: If an alien seeking protection
designates a country, consider questioning
him or her why he or she is seeking
protection if he or she “wants” to be
removed there. Possibly useful in asylum
cases where alien entered on nonimmigrant
visa which required him or her to establish
that he or she had a “residence in a foreign
country which he [or she] has no intention of
abandoning,” INA §§ 101(a)(15) & 214(b),
and where “subjective genuineness” of fear
is otherwise at issue.
2010FOIA4519.000263

CAT:
Failed
States

Other Aliens
INA § 241(b)(2)
• Two qualifications to the general rule that an
alien can designate removal country of his or
her choice:
• INA § 241(b)(2)(B): “Contiguous Territory” /
“Island Adjacent” can only be designated by
the alien if he or she is a native, citizen,
subject, or national of the country, or has
resided there.
• INA § 241(b)(2)(C): Alien’s designation can
be “disregarded” under four circumstances:
◦ (i) alien fails to designate promptly;
◦ (ii) government of designated country does
not provide timely (i.e., within 30 days of U.S.
government request) notification of
acceptance;
◦ (iii) government of designated country is not
“willing” to accept the alien; or
2010FOIA4519.000264

CAT:
Failed
States

Other Aliens
INA § 241(b)(2)
… (iv) where removal of the alien to the
designated country is “prejudicial to the United
States”
◦ Who bears burden of showing prejudice?
Statute does not assign burden and
regulations do not address. No controlling
BIA precedent, but consider Matter of
Khalifah, 21 I&N Dec. 107 (BIA 1995)
(Osama Bin Laden’s brother-in-law
removed to Jordan, at direction of
Secretary of State and Deputy Attorney
General, to face terrorism prosecution
there); and Matter of Ruiz-Massieu, 22 I&N
Dec. 833 (BIA 1999) (Secretary of State
requested that alien be deported to
Mexico; BIA acknowledges its own
limitations and declines “to intrude into the
realm of foreign policy”).
2010FOIA4519.000265

CAT:
Failed
States

Other Aliens
INA § 241(b)(2)
• INA § 241(b)(2)(A) General Rule of Alien
Designation
• INA § 241(b)(2)(B) Qualification for
“Contiguous Territory” / “Island Adjacent”
• INA § 241(b)(2)(C) Disregarding
Designation
How do we select the removal country if we’re
not following the general rule?
• INA § 241(b)(2)(D) sets forth the
“alternative” country
• INA § 241(b)(2)(E) lists “additional”
countries
(D) and (E) are structured to be followed in
descending order.
2010FOIA4519.000266

CAT:
Failed
States

Other Aliens
INA § 241(b)(2)
What is the “alternative” country provided for
by INA § 241(b)(2)(D)?
• “A country of which the alien is a subject,
national, or citizen” unless:
– (i) government of “alternative” country
does not provide timely (i.e., within 30
days of U.S. government request)
notification of acceptance; or
– (ii) that government is unwilling to accept
the alien into the country

2010FOIA4519.000267

CAT:
Failed
States

Other Aliens
INA § 241(b)(2)
What are the “additional” countries of INA §
241(b)(2)(E)?
• If all else fails, any of the following:
– (i) country from which the alien was
admitted to the United States
– (ii) country where the foreign port is
located from which the alien left for the
United States or for a contiguous
territory
– (iii) country where the alien resided
before he or she entered the country
from which he or she entered the United
States
2010FOIA4519.000268

CAT:
Failed
States

Other Aliens
INA § 241(b)(2)
• “Additional” countries of INA § 241(b)(2)(E),
continued:
– (iv) country in which the alien was born
– (v) country that had sovereignty over the
alien’s birthplace when the alien was
born
– (vi) country in which the alien’s
birthplace is located when he or she is
ordered removed, or
– (vii) if removal to each of the preceding
six countries is “impracticable,
inadvisable, or impossible,” another
country whose government will accept
the alien into that country
2010FOIA4519.000269

CAT:
Failed
States

Jama v. Immigration and
Customs Enforcement,
543 U.S. 335 (2005).

,
2010FOIA4519.000270

-

CAT:
Failed
States

Jama
• Does INA § 241(b)(2) “prohibit[] removing
an alien to a country without the explicit,
advance consent of that country's
government”?
– No: Jama.

• By a 5-4 majority, the Court ruled that
government acceptance was not required
for the removal of Keyse Jama, a Somali
national previously admitted to the United
States as a refugee but subject to removal
based on criminal convictions.
2010FOIA4519.000271

CAT:
Failed
States

Basis of the Court’s Analysis
(1) Statutory language and structure: “We do
not lightly assume that Congress has
omitted from its adopted text requirements
that it nonetheless intends to apply, and our
reluctance is even greater when Congress
has shown elsewhere in the same statute
that it knows how to make such a
requirement manifest.” 543 U.S. at 341.
(2) An effort to optimize the Government’s
removal authority in light of the Court’s
recent precedent holding that aliens may
not be detained beyond the period of time
where there is significant likelihood of
removal in the reasonably foreseeable
future, Clark v. Martinez, 543 U.S. 371
(2005); Zadvydas v. Davis, 533 U.S. 678
(2001).
2010FOIA4519.000272

CAT:
Failed
States

Basis of the Court’s Analysis
(3) Separation of powers: “To infer an
absolute rule of acceptance where
Congress has not clearly set it forth would
run counter to our customary policy of
deference to the President in matters of
foreign affairs. Removal decisions, including
the selection of a removed alien's
destination, ‘may implicate our relations with
foreign powers’ and require consideration of
‘changing political and economic
circumstances.’” Mathews v. Diaz, 426 U.S.
67, 81 (1976).” 543 U.S. at 348.

2010FOIA4519.000273

CAT:
Failed
States

One Concern in Jama
Expressed during oral argument was the notion that
the Government might simply “dump” aliens
anywhere it could to effectuate their removal:
• JUSTICE BREYER: So you're not saying you
can dump people in
– Antarctica or
– possibly send them to the moon.

2010FOIA4519.000274

CAT:
Failed
States

Jama
• MR. STEWART: We're saying that -- we're
saying, first, that Antarctica and Somalia are
countries. It's exceedingly –
• JUSTICE BREYER: Antarctica is a country?
So we could take all these people, send
them to Antarctica. They'll live with the
penguins? Is –
• MR. STEWART: It's extremely unlikely that - that the -- the text of a statute could ever
be satisfied because the permitted removal
countries are countries such as the country
in which -• JUSTICE SCALIA: If they were born there • MR. STEWART: Exactly.

2010FOIA4519.000275

CAT:
Failed
States

JUSTICE SCALIA:
-- raised by penguins, send them --

,
2010FOIA4519.000276

-

CAT:
Failed
States

Jama
• Indeed, as the statute’s repeated reference
to the “government of the country” of
removal and the Jama litigation itself raise
an important question: what is the
relevance of a foreign government to our
ability to remove an alien to a foreign place?

2010FOIA4519.000277

CAT:
Failed
States

Jama
•

In his brief on the merits, petitioner raises the
additional contention—not presented to, or
decided by, the Court of Appeals—that removal
to Somalia is impermissible at any step of [INA §
241](b)(2) because the lack of a functioning
central government means that Somalia is not a
“country” as the statute uses the term. The
question on which we granted certiorari in this
case, as phrased by petitioner himself, was as
follows: “Whether the Attorney General can
remove an alien to one of the countries
designated in [INA § 241] (b)(2)(E) without
obtaining that country’s acceptance of the alien
prior to removal.” That question does not fairly
include whether Somalia is a country any more
than it fairly includes whether petitioner is an
alien or is properly removable; we will not decide
such issues today.
– The Supreme Court declined to address that
question. 543 U.S. at 352 n.13. 2010FOIA4519.000278

CAT:
Failed
States

What Does “Country” Mean?
• So, can a place be a “country” without
a central functioning government?
• Black’s Law Dictionary 377 (8th ed.
1999):
– “1. A nation or political state; state
(1). 2. The territory of such a nation
or state.”
• Oxford Dictionary of the English
Language (2d ed. 1989):
– “3. The territory or land of a nation;
usually an independent state, or a
region once independent and still
distinct in race, language,
institutions, or historical memories,
as England, Scotland, and Ireland,
in the United Kingdom, etc.).
2010FOIA4519.000279

CAT:
Failed
States

What Does “Country” Mean?

• Smith v. United States, 507 U.S. 197, 201
(1993) (construing the Federal Tort Claims
Act and stating that the "commonsense
meaning" of the term "country" is "‘[a] region
or tract of land[,]’" and therefore Antarctica
qualified as a "country," "even thought it has
no recognized government") (citing
Webster’s New International Dictionary 609
(2d ed. 1945)).
2010FOIA4519.000280

CAT:
Failed
States

So, What is a “State”?
• Restatement (Third) of Foreign Relations
Law § 201 (1987): Under international law,
a state is an entity that has a defined
territory and a permanent population, under
the control of its own government, and that
engages in, or has the capacity to engage
in, formal relations with other such entities.
• Antarctica?

2010FOIA4519.000281

CAT:
Failed
States

“State”
• § 201 cmt. c “To be a state an entity must
have a population that is significant and
permanent. Antarctica, for example, would
not now qualify as a state even if it satisfied
the other requirements of this section.”
• Population in Antarctica:
– no indigenous inhabitants, but there are
both permanent and summer-only
staffed research stations
– note: 28 nations, all signatory to the
Antarctic Treaty, operate through their
National Antarctic Program a number of
seasonal-only (summer) and year-round
research stations on the continent and
its nearby islands south of 60 degrees
south latitude (the region covered by the
Antarctic Treaty);
2010FOIA4519.000282

CAT:
Failed
States

“State”
•
•
•

•

The existence of a government is an important
element of the “state” definition.
Are there any requirements as to the nature of
that government?
§ 201 cmt. d: A state need not have any
particular form of government, but there must be
some authority exercising governmental
functions and able to represent the entity in
international relations.
§ 201 Reporter’s Note 2: Some entities have
been assumed to be states when they could
satisfy only a very loose standard for having an
effective government, e.g., the Congo (Zaire) in
1960. James R. Crawford, The Creation of
States in International Law 42-47 (1979). A state
may continue to be regarded as such even
though, due to insurrection or other difficulties,
its internal affairs become anarchic for an
extended period of time.
2010FOIA4519.000283

CAT:
Failed
States

Jama Application
to Protection Law
Supreme Court specifically discussed at 348:
• Nor is it necessary to infer an acceptance
requirement in order to ensure that the Attorney
General will give appropriate consideration to
conditions in the country of removal. If aliens
would face persecution or other mistreatment in
the country designated under [INA § 241](b)(2),
they have a number of available remedies:
asylum; withholding of removal; relief under an
international agreement prohibiting torture; and
temporary protected status. These individualized
determinations strike a better balance between
securing the removal of inadmissible aliens and
ensuring their humane treatment than does
petitioner's suggestion that silence from
Mogadishu inevitably portends future
mistreatment and justifies declining to remove
anyone to Somalia.
• And, of course, “withholding of removal” is not a
freestanding immigration benefit or form of
“relief”—it is a restriction on removal 2010FOIA4519.000284
placed
directly in the removal statute at INA § 241(b)(3).

CAT:
Failed
States

Removal Country Issues
• So, government acceptance is not an absolute
requirement to effectuate removal, but we do
have to remove someone to a “country.”
• And, “countries” or “states” can continue to
subsist even through prolonged periods of
anarchy or ineffectual central governance.
• Article 3 of the Convention obligates a “State
Party” not to “expel, return (‘refouler’) or
extradite a person to another State where
there are substantial grounds for believing that
he would be in danger of being subjected to
torture”
• And, as we’ve seen, the “torture” definition
itself centers on “public officials” and persons
otherwise “acting in an official capacity”
• Thus, the question that arises is how should
we analyze torture claims vis-à-vis countries
with no functioning government or with a
government vying for control over national
territory where non-governmental groups hold
significant sway
2010FOIA4519.000285

CAT:
Failed
States

Example: Somalia

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2010FOIA4519.000286

CAT:
Failed
States

Somalia: Brief History
•

•

•

•

June 1960 – Britain withdraws from British
Somaliland to allow its protectorate to join with
Italian Somaliland and form the new nation of
Somalia, which was recognized by the United
Nations.
Late 1969 – Mohammed Siad Barre, of the
Marehan subclan of the Darod clan, leads coup
d’etat and ushers in period of authoritarian
socialist control.
January 1991 – Siad Barre deposed by
combined armed revolt of numerous primarily
non-Darod opposition groups, including the
Hawiye clan-led United Somali Congress (USC).
Early 1991 – USC and allies fall into discord
over who should succeed Siad Barre, with some
supporting, Mohamed Farrah Aidid, and others
supporting Ali Mahdi Muhammad. 2010FOIA4519.000287

CAT:
Failed
States

Somalia: Brief History
•

•

•
•
•

May 1991 – Northern Somali clans declare an
independent Republic of Somaliland, which has
not been recognized as a state by the United
Nations.
1991 – 1992 – Somalia descends into full-scale
civil war and famine with local warlords asserting
effective military control over their respective
regions.
1991 – President Clinton deploys U.S
peacekeeping troops to Somalia.
October 1993 – Battle of Mogadishu; 17 U.S.
service members killed.
1993 – 1995 – United Nations attempts to
restore order and combat famine.
2010FOIA4519.000288

CAT:
Failed
States

Somalia: Brief History
• 1998 – Autonomous region of Puntland
declared in the north of Somalia, adjoining
Somaliland; Puntland commits to
participation in future national reconciliation
efforts.

2010FOIA4519.000289

CAT:
Failed
States

Somalia: Brief History
• 2002 – 2004 – Kenyan government helps
broker peace arrangement, culminating in
establishment of internationally recognized
Transitional Federal Government (TFG) and
election of Abdullahi Yusuf Ahmed as
President; goal set for 2009 national
elections.

2010FOIA4519.000290

CAT:
Failed
States

Somalia: Brief History
• October 2006 – Islamic Courts Union
(Council of Islamic Courts), an effort by
businessmen and Muslim clerics to oust
warlords and assume control over Somalia
under shari’a law, seizes Mogadishu from
warlords.
• December 2006 – Ethiopian and TFG forces
wrest control of Mogadishu from Islamic
Courts in October.

,
2010FOIA4519.000291

-

CAT:
Failed
States

Is TFG a “State”?
• Does the United States recognize the TFG
or any party that claims sovereignty or
control over all or a part of Somalia?
• In Somalia, the TFG would appear to be the
“State” government and, for CAT purposes,
a “public official or other person acting in an
official capacity” would arguably have to be
affiliated, in some measure, with the TFG.
• But, TFG’s effective control of Somalia is
limited to the country’s southern regions and
is largely subsidized by strong Ethiopian
military strength.
• Thus, an applicant could conceivably claim
that he or she fears harm by entities other
than the TFG in areas where the TFG does
not have significant control and these other
entities are quasi-governmental in nature.
2010FOIA4519.000292

CAT:
Failed
States

Quasi-governmental Torture?
No reported U.S. judicial or administrative
precedent conclusively resolving this issue.
• Hussein v. Att’y Gen., 2008 WL 934056 (3d Cir.
Apr. 4, 2008) (unpublished)
– Member of Tuni clan (not affiliated with major
armed clan groups) argues that he would face
torture if removed to Somalia because Hawiye
clansmen and Islamic groups would target him
and that the TFG would turn a “blind eye” to this
mistreatment.
– Court concludes that BIA properly rejected his
claim as overly generalized and cites to
Lukwago v. Ashcroft, 329 F.3d 157, 183 (3d Cir.
2003) for the proposition that a CAT applicant is
not entitled to relief if evidence shows that
government is in continuous opposition to an
organization's activities.
2010FOIA4519.000293

CAT:
Failed
States

Quasi-governmental Torture?
• Saraj v. Gonzales, 203 Fed.Appx. 99 (9th
Cir. Oct. 16, 2006) (unpublished):
– Afghan national challenges BIA denial of his
CAT application, which sought protection
based on harm from a warlord who controlled
large areas of Afghanistan.
– Case remanded by Court because it found
record insufficient to address the question of:
“whether an individual operating a de facto
government in derogation of the legitimate
government of a country can be said to be
acting in an official capacity and of whether a
government can be said to acquiesce in
actions by a private individual which the
government is aware of but is unable to
stop.”
– Warlord now a member of the Government!
2010FOIA4519.000294

CAT:
Failed
States

Quasi-governmental Torture?
• Matter of -502 (BIA Dec. 12, 2006)
(unpublished):
◦ DHS appeal of a Somali CAT grant based on
warlord-inflicted harm;
◦ BIA invokes Matter of Linnas, 19 I&N Dec. 302, 307
(BIA 1985), for the definition of “government”
applicable in immigration proceedings: “a political
organization that exercises power on behalf of the
people subjected to its jurisdiction”;
◦ BIA also acknowledged separate opinions of Board
Members Schmidt and Villageliu in Matter of S-V-,
22 I&N Dec. 1306 (Colombian protection claim;
applicant feared harm by insurgent groups), finding
the insurgent groups effectively controlled about 40
percent of Colombian territory and that the U.N.
Committee Against Torture had found warring
factions in Somalia to qualify as “public officials” for
CAT purposes; and
◦ Also notes intervening emergence of TFG and U.N.
recognition thereof as intervening developments and
sustains DHS appeal on basis of probability of harm.
2010FOIA4519.000295

CAT:
Failed
States

Quasi-governmental Torture?
• Matter of -502 (BIA Dec. 12, 2006)
(unpublished):
◦ DHS appeal of a Somali CAT grant based on
warlord-inflicted harm;
◦ BIA invokes Matter of Linnas, 19 I&N Dec. 302, 307
(BIA 1985), for the definition of “government”
applicable in immigration proceedings: “a political
organization that exercises power on behalf of the
people subjected to its jurisdiction”;
◦ BIA also acknowledged separate opinions of Board
Members Schmidt and Villageliu in Matter of S-V-,
22 I&N Dec. 1306 (Colombian protection claim;
applicant feared harm by insurgent groups), finding
the insurgent groups effectively controlled about 40
percent of Colombian territory and that the U.N.
Committee Against Torture had found warring
factions in Somalia to qualify as “public officials” for
CAT purposes; and
◦ Also notes intervening emergence of TFG and U.N.
recognition thereof as intervening developments and
sustains DHS appeal on basis of probability of harm.
2010FOIA4519.000296

CAT:
Failed
States

Sidebar: Matter of Linnas
•

•

•

•

•

In Linnas, the Board construed "government" to
mean a "political organization that exercises power
on behalf of people subjected to its jurisdiction."
But, relies on Second Circuit decisions more than 40
years old and involve how to address deportation of
aliens to Communist China, as opposed to Taiwan
or Hong Kong.
The Supreme Court in Jama recognized that the
Board in Linnas was constrained to follow Second
Circuit precedent.
Linnas is also of dubious value because the
problems posed by deportation to China were
extinguished by the United States’ recognition of the
People’s Republic of China as the legal government
of China. See, e.g., Matter of Cheung, 16 I&N Dec
690 (BIA 1979).
Further, lawless groups or warlords can hardly be
said to "exercise[] power on behalf of people."
2010FOIA4519.000297

CAT:
Failed
States

Quasi-governmental Torture?
•

•

But, U.S. has not agreed to recognize UNCAT as
conclusive authority on CAT interpretation and has not
acceded to Article 22 of the CAT, which would allow
private individuals to bring CAT claims against the
United States in proceedings before the UNCAT.
“Although a party to a treaty can agree to establish a
third party to render authoritative interpretations of that
treaty, in this case, the United States did not agree to
give the Committee such a role. While the Committee’s
views are entitled to respect, the Convention does not
grant the Committee the authority to issue legally
binding views on the nature of U.S. obligations
thereunder.”
– Oral Statements by the United States Delegation To
The Committee Against Torture, at 3 (May 8, 2006)
(statement of John Bellinger III, Legal Advisor, U.S.
Dep’t of State), available at
http://www.state.gov/documents/organization/66174.
pdf.
2010FOIA4519.000298

CAT:
Failed
States

Quasi-governmental Torture?
•

What has UNCAT said about the issue of
whether an individual can qualify for CAT
protection based upon opposition groups that
exercise some degree of control over some part
of a State’s national territory?

2010FOIA4519.000299

CAT:
Failed
States

G-R-B- v. Sweden
• G-R-B- v. Sweden, No. CAT/C/20/D/83/1997
(May 15, 1998):
– Peruvian torture case involving alleged fear of
harm by Sendero Luminoso (“Shining Path”), a
Maoist guerilla group.
– Sweden argues that the “acts of Sendero
Luminoso cannot be attributable to the authorities”
of Peru.
– “The Committee considers that the issue whether
the State party has an obligation to refrain from
expelling a person who might risk pain or suffering
inflicted by a non-governmental entity, without the
consent or acquiescence of the Government, falls
outside the scope of article 3 of the Convention.”
– Applicant’s claim rejected: G-R-B- had traveled to
Peru on two past occasions without2010FOIA4519.000300
being harmed
by the “national authorities.”

CAT:
Failed
States

Elmi v. Australia
• Elmi v. Australia, No. CAT/C/22/D/120/1998
(May 25, 1999):
– [T]he [Somali] clans . . . have, in certain regions,
fulfilled the role, or exercised the semblance, of an
authority that is comparable to government
authority.
– The clans, in relation to their regions, have
prescribed their own laws and law enforcement
mechanisms and have provided their own
education, health and taxation systems.
– [F]or a number of years Somalia has been without
a central government, [] the international
community negotiates with the warring factions and
[] some of the factions operating in Mogadishu
have set up quasi-governmental institutions and
are negotiating the establishment of a common
administration.
– It follows then that, de facto, those factions
exercise certain prerogatives that are comparable
to those normally exercised by legitimate
governments.”
2010FOIA4519.000301

CAT:
Failed
States

HMHI v. Australia
• HMHI v. Australia, No.
CAT/C/28/D/177/2001 (May 1, 2002):
– “[W]ith three years having elapsed since the
Elmi decision, Somalia currently possesses a
State authority in the form of the Transitional
National Government, which has relations
with the international community in its
capacity as central Government, though
some doubts may exist as to the reach of its
territorial authority and its permanence.
– Accordingly, the Committee does not
consider this case to fall within the
exceptional situation in Elmi….”

2010FOIA4519.000302

CAT:
Failed
States

What Does It All Mean?
Aliens may assert that it is more likely than
not that they will be tortured by a de facto
government or private groups in control of a
particular region or place within a country, but
such groups may not be sufficiently
"governmental" to support eligibility under
Article 3 of the Convention, as adopted in the
applicable regulations.
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2010FOIA4519.000303

CAT:
Failed
States

Litigating Failed State Issues
• Chicago’s Experiences in Matter
of A-A-A• Litigation Strategies in Immigration
Court
• Failed State Arguments in Federal
Court

2010FOIA4519.000304

CAT:
Failed
States

Matter of A-A-ABrief summary of facts and procedural history:
• A-A-A- entered the United States as a
derivative refugee in 1999.
• In 2001, he was convicted of substantial
battery and sentenced to 11 months
incarceration: A-A-A- used a box-cutter to
slash another person’s chin, ear, face,
shoulder, chest, back, and finger.
– The victim required 32 stitches and 10
staples.

2010FOIA4519.000305

CAT:
Failed
States

Matter of A-A-A•

•
•

While serving his sentence, he told a
Confidential Information that while in
Somalia, he learned how to make bombs
and that he had stabbed an American
solider.
He also claimed that once he was released
from prison, he and some of his friends
were going to blow up a local mall.
The JTTF found a note in his cell that had
the picture of the American Flag with the
word “martyr” written across it.

2010FOIA4519.000306

CAT:
Failed
States

Matter of A-A-A•

•

A-A-A- was placed in removal proceedings,
and after many hearings and appeals to the
BIA, he was found to have been convicted
of a particularly serious crime, and only
eligible to request deferral of removal under
the CAT.
The IJ ordered his release, and ICE filed for
an automatic stay of that decision, and was
successful in keeping him in custody during
the pendency of proceedings.

2010FOIA4519.000307

CAT:
Failed
States

Matter of A-A-A•

A-A-A- applied for protection under the CAT
claiming that he is from the Rahanweyn
subclan and that, if he were forced to return
to Somalia, he would be tortured by
members of other clans, including his own.

2010FOIA4519.000308

CAT:
Failed
States

Ligitation: Matter of A-A-A•

•

A-A-A- presented two “expert” witnesses:
– Professor of African History at Rutgers
University, and the Executive Director of
the World Organization for Human
Rights USA.
– Both claimed that there were various
militias and groups in Somalia that
acted as de facto governments and
under “color of law,” and no matter
where he went in Somalia, he would be
tortured by these de facto governments,
or with their acquiescence.
IJ agreed and found that while there was no
central government in Somalia, these
groups constituted “governments” for
purposes of the CAT.

2010FOIA4519.000309

CAT:
Failed
States

Ligitation: Matter of A-A-A•

The IJ found that the alien would have
difficulty reaching the area controlled by his
clan because he would be forced to travel
through areas controlled by rival clans and
factions.

•

DHS appealed.

2010FOIA4519.000310

CAT:
Failed
States

Ligitation: Matter of A-A-A•

•

BIA assumed for purposes of its decision
that A-A-A- would suffer harm and possibly
torture in certain areas of Somalia,
including TNG-controlled Mogadishu, but
that he failed to establish that the threat of
torture existed country-wide, effectively
side-stepping the issue of whether there
were any de facto governments in Somalia
for purposes of the CAT.
Additionally, the BIA found that any harm
he would suffer on his way to the area
controlled by his clan, or within the area
controlled by his clan, would not constitute
torture within the meaning of the
regulations.

2010FOIA4519.000311

CAT:
Failed
States

Ligitation: Matter of A-A-A•

Alien petitioned the Seventh Circuit for
review, and while court upheld the BIA on
the issue of particular serious crime, it
remanded the case because it believed that
the issue of whether there is a de facto
government in Somalia for purposes of CAT
protection had not been fully briefed to
them.

2010FOIA4519.000312

CAT:
Failed
States

•
•
•
(b)(5)

•

2010FOIA4519.000313

CAT:
Failed
States

Litigation Strategies
•

(b)(5)

2010FOIA4519.000314

CAT:
Failed
States

•

(b)(5)

2010FOIA4519.000315

CAT:
Failed
States

Litigation Strategies
•

•

(b)(5)

•

2010FOIA4519.000316

CAT:
Failed
States

•

(b)(5)

•

2010FOIA4519.000317

CAT:
Failed
States

•
•

•
(b)(5)

2010FOIA4519.000318

CAT:
Failed
States

Food for Thought
•

(b)(5)

2010FOIA4519.000319

CAT:
Failed
States

More Food for Thought
•

(b)(5)

•

2010FOIA4519.000320

CAT:
Failed
States

More Food for Thought
•

(b)(5)

2010FOIA4519.000321

CAT:
Failed
States

More Food for Thought
•

(b)(5)

2010FOIA4519.000322

CAT:
Failed
States

More Food for Thought
And …
•

(b)(5)

2010FOIA4519.000323

CAT:
Failed
States

More Food for Thought
•

(b)(5)

2010FOIA4519.000324

CAT:
Failed
States

More Food for Thought
•

(b)(5)

2010FOIA4519.000325

CAT:
Failed
States

More Food for Thought
•

(b)(5)

2010FOIA4519.000326

CAT:
Failed
States

More Food for Thought
•

(b)(5)

2010FOIA4519.000327

CAT:
Failed
States

The Federal Court Perspective
•

(b)(5)

2010FOIA4519.000328

CAT:
Failed
States

The Federal Court Perspective
•

(b)(5)

2010FOIA4519.000329

CAT:
Failed
States

And Remember:

2010FOIA4519.000330

Questions?

2010FOIA4519.000331

,••

u.s. Immigration
rnrnigration
and Customs
c- -storns
Enforcement
forcernent

2010FOIA4519.000332

Order Code 98-958 A

Extradition To and From the United States:
Overview of the Law and
Recent Treaties

Updated August 3, 2007

Charles Doyle
Senior Specialist
American Law Division

2010FOIA4519.000333

Extradition
To and From the United States:
Overview of the Law and Recent Treaties
Summary
“Extradition” is the formal surrender of a person by a State to another State for
prosecution or punishment. Extradition to or from the United States is a creature of
treaty. The United States has extradition treaties with over a hundred of the nations
of the world, although they are many with whom it has no extradition treaty.
International terrorism and drug trafficking have made extradition an increasingly
important law enforcement tool. This is a brief overview of the adjustments made in
recent treaties to accommodate American law enforcement interests, and then a
nutshell overview of the federal law governing foreign requests to extradite a fugitive
found in this country and a United States request for extradition of a fugitive found
in a foreign country.
Extradition treaties are in the nature of a contract and generate the most
controversy with respect to those matters for which extradition may not be had. In
addition to an explicit list of crimes for which extradition may be granted, most
modern extradition treaties also identify various classes of offenses for which
extradition may or must be denied. Common among these are provisions excluding
purely military and political offenses; capital offenses; crimes that are punishable
under only the laws of one of the parties to the treaty; crimes committed outside the
country seeking extradition; crimes where the fugitive is a national of the country of
refuge; and crimes barred by double jeopardy or a statute of limitations.
Extradition is triggered by a request submitted through diplomatic channels. In
this country, it proceeds through the Departments of Justice and State and may be
presented to a federal magistrate to order a hearing to determine whether the request
is in compliance with an applicable treaty, whether it provides sufficient evidence to
satisfy probable cause to believe that the fugitive committed the identified treaty
offense(s), and whether other treaty requirements have been met. If so, the
magistrate certifies the case for extradition at the discretion of the Secretary of State.
Except as provided by treaty, the magistrate does not inquire into the nature of
foreign proceedings likely to follow extradition.
The laws of the country of refuge and the applicable extradition treaty govern
extradition back to the United States of a fugitive located overseas. Requests travel
through diplomatic channels and the only issue likely to arise after extradition to this
country is whether the extraditee has been tried for crimes other than those for which
he or she was extradited. The fact that extradition was ignored and a fugitive forcibly
returned to the United States for trial constitutes no jurisdictional impediment to trial
or punishment. Federal and foreign immigration laws sometimes serve as a less
controversial alternative to extradition to and from the United States.
This report is available in an abridged version, without quotations, citations or
footnotes as CRS Report RS22702, An Abridged Sketch of Extradition To and From
the United States, by Charles Doyle.
2010FOIA4519.000334

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Contemporary U.S. Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bars to Extradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
No Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
No Treaty Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Military and Political Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Capital Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Want of Dual Criminality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Extraterritoriality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Nationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Double Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Lapse of Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Other Features . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Constitutionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Procedure for Extradition from the United States . . . . . . . . . . . . . . . . . . . . 18
Arrest and Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Extradition for Trial or Punishment in the United States . . . . . . . . . . . . . . 28
Specialty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Alternatives to Extradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Immigration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Irregular Rendition/Abduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Foreign Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Books and Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Notes and Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Countries with Whom the United States Has an Extradition Treaty . . . . . . 42
Countries with Whom the United States Has
No Extradition Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

2010FOIA4519.000335

Extradition
To and From the United States:
Overview of the Law and Recent Treaties
Introduction
“‘Extradition’ is the formal surrender of a person by a State to another State for
prosecution or punishment.”1 Extradition to or from the United States is a creature
of treaty. The United States has extradition treaties with over a hundred of the nations
of the world, although there are many with whom the United States has no
extradition treaty.2 International terrorism and drug trafficking have made extradition
an increasingly important law enforcement tool.3
Although extradition as we know it is of relatively recent origins,4 its roots can
be traced to antiquity. Scholars have identify procedures akin to extradition scattered

1

Harvard Research in International Law, Draft Convention on Extradition, 29 AMERICAN
JOURNAL OF INTERNATIONAL LAW 21 (Supp. 1935); see also, 1 RESTATEMENT (THIRD) OF
THE FOREIGN RELATIONS LAW OF THE UNITED STATES 556-57 (1986)(RESTATEMENT). In
the parlance of international law nations are identified as “states.” In order to avoid
confusion, the several states of the United States will be referred to as “the states of the
United States.”
Interstate rendition, the formal surrender of a person by one of the states of the United
States to another, is also sometimes referred to as extradition, but is beyond the scope of this
report.
2

The list of countries along with the citations to our treaties follow 18 U.S.C. 3181. A
similar list is appended to this report, as is a list of the countries with whom we have no
extradition treaty in force at the present time.

3

Until the early 1970's, the United States received and submitted fewer than 50 extradition
requests a year; by the mid 1980's the number had grown to over 500 requests a year, IV
ABBELL & RISTAU, INTERNATIONAL JUDICIAL ASSISTANCE: CRIMINAL ‚ EXTRADITION
(ABBELL & RISTAU) 11-18 (1990).
4

Even the term “extradition” did not appear until the late eighteenth century, BLAKESLY,
TERRORISM, DRUGS, INTERNATIONAL LAW, AND THE PROTECTION OF HUMAN LIBERTY: A
COMPARATIVE STUDY OF INTERNATIONAL LAW, ITS NATURE, ROLE, AND IMPACT IN
MATTERS OF TERRORISM, DRUG TRAFFICKING, WAR, AND EXTRADITION 171 (1992). For
a more extensive examination of the history of extradition, see, Blakesly, The Practice of
Extradition from Antiquity to Modern France and the United States: A Brief History, 4
BOSTON COLLEGE INTERNATIONAL & COMPARATIVE LAW REVIEW 39 (1981); Harvard
Research in International Law, Draft Convention on Extradition, 29 AMERICAN JOURNAL
OF INTERNATIONAL LAW 41-6 (Supp. 1935); BASSIOUNI, INTERNATIONAL EXTRADITION:
UNITED STATES LAW AND PRACTICE (BASSIOUNI) 31-5 (4th ed. 2002); ABBELL & RISTAU at
3-11.
2010FOIA4519.000336

CRS-2
throughout history dating as far back as the time of Moses.5 By 1776, a notion had
evolved to the effect that “every state was obliged to grant extradition freely and
without qualification or restriction, or to punish a wrongdoer itself” and the absence
of intricate extradition procedures has been attributed to the predominance of this
simple principle of international law.6
Whether by practice’s failure to follow principle or by the natural evolution of
the principle, modern extradition treaties and practices began to emerge in this
country and elsewhere by the middle eighteenth and early nineteenth centuries.7
Our first extradition treaty consisted of a single terse article in Jay’s Treaty of
1794 with Great Britain, but it contained several of the basic features of
contemporary extradition pacts. Article XXVII of the Treaty provided in its entirety,

5

Ramses II of Egypt and the Hittite king, Hattusili III, entered into a pact under which they
promised to extradite fugitives of both noble and humble birth, Treaty Between Hattusili and
Ramesses II, §§11-14, transliteration and translation in, Langdon & Gardiner, The Treaty
of Alliance Between Hattusili, King of the Hittites, and the Pharaoh Ramesses II of Egypt,
6 JOURNAL OF EGYPTIAN ARCHAEOLOGY 179, 192-94 (1920). Until fairly recently, nations
seem have been happily rid of those who fled rather than face punishment. The EgyptianHittite treaty reflects the fact that extradition existed primarily as an exception to the more
favored doctrines of asylum and banishment. Fugitives returned pursuant to the treaty
received the benefits of asylum in the form of amnesty, “If one man flee from the land of
Egypt, or two, or three, and they come to the great chief of Hatti, the great chief of Hatti
shall seize them and shall cause them to be brought to Ramesse-mi-Amun, the great ruler
of Egypt. But as for the man who shall be brought to Ramesse-mi-Amun, the great ruler of
Egypt, let not his crime be charged against him, let not his house, his wives or his children
be destroyed, let him not be killed, let no injury be done to his eyes, to his ears, to his mouth
or to his legs . . .” §17, id. at 197.

6

1 RESTATEMENT, Introductory Note to Subchapter 7B, 557, citing, GROTIUS, DE JURE
BELLI AC PACIS, Vol.II, ch.21, §§3-4 (Scott ed. 1925).
7

“By the latter part of the nineteenth century that [principle] had yielded to the view that
delivery of persons charged with, or convicted of, crimes in another state was at most a
moral duty, not required by customary international law, but generally governed by treaty
and subject to various limitations. A network of bilateral treaties, differing in detail but
having considerable similarity in principle and scope, has spelled out these limitations, and
in conjunction with state legislation, practice, and judicial decisions has created a body of
law with substantial uniformity in major respects. But the network of treaties has not
created a principle of customary law requiring extradition, and it is accepted that states are
not required to extradite except as obligated to do so by treaty,” ID.
From the perspective of one commentator, “The history of extradition can be divided
into four periods: (1) ancient times to the seventeenth century – a period revealing an almost
exclusive concern for political and religious offenders; (2) the eighteenth century and half
of the nineteenth century – a period of treaty-making chiefly concerning military offenders
characterizing the condition of Europe during that period; (3) 1833 to 1948 – a period of
collective concern for suppressing common criminality; and (4) post 1948 developments
which ushered in a greater concern for protecting human rights of persons and revealed an
awareness of the need to have international due process of law regulate international
relations,” BASSIOUNI at 33.
2010FOIA4519.000337

CRS-3
It is further agreed, that his Majesty and the United States, on mutual
requisitions, by them respectively, or by their respective ministers or officers
authorized to make the same, will deliver up to justice all persons, who, being
charged with murder or forgery, committed within the jurisdiction of the other,
provided that this shall only be done on such evidence of criminality, as,
according to the laws of the place, where the fugitive or person so charged shall
be found, would justify his apprehension and commitment for trial, if the offence
had there been committed. The expense of such apprehension and delivery shall
be borne and defrayed, by those who make the requisition and receive the
fugitive.8

Contemporary U.S. Treaties
Bars to Extradition
Extradition treaties are in the nature of a contract and by operation of
international law, “[a] state party to an extradition treaty is obligated to comply with
the request of another state party to that treaty to arrest and deliver a person duly
shown to be sought by that state (a) for trial on a charge of having committed a crime
covered by the treaty within the jurisdiction of the requesting state, or (b) for
punishment after conviction of such a crime and flight from that state, provided that
none of the grounds for refusal to extradite set forth in [the treaty] is applicable.”9
Subject to a contrary treaty provision, federal law defines the mechanism by
which we honor our extradition treaty obligations.10 Although some countries will
extradite in the absence of an applicable treaty as a matter of comity, it was long
believed that the United States could only grant an extradition request if it could
claim coverage under an existing extradition treaty, 18 U.S.C. 3181, 3184 (1994).11
Dicta in several court cases indicated that this requirement, however, was one of
congressional choice rather than constitutional requirement.12
No Treaty.
Congress appears to have acted upon that assumption when in 1996 it first
authorized the extradition of fugitive aliens even at the behest of a nation with whom

8

8 Stat. 116, 129 (1794).

9

1 RESTATEMENT §475 at 559.

10

18 U.S.C. 3181 to 3196.

11

18 U.S.C. 3181 (“The provisions of this chapter relating to the surrender of persons who
have committed crimes in foreign countries shall continue in force only during the existence
of any treaty of extradition with such foreign government”); 18 U.S.C. 3184 (“Whenever
there is a treaty or convention for extradition between the United States and any foreign
government . . .”).
12

E.g., United States v. Alvarez-Machain, 504 U.S. 655, 664 (1992) (“Valentine v. United
States ex rel. Neidecker, supra, 299 U.S., at 8-9. . . (United States may not extradite a citizen
in the absence of a statute or treaty obligation)” (emphasis added)).
2010FOIA4519.000338

CRS-4
we have no extradition treaty,13 and then by statute making the extradition procedures
applicable to requests from international tribunals for Yugoslavia and Rwanda.14
The initial judicial response has left the vitality of those efforts somewhat in
doubt. A district court in Texas initially ruled that constitutional separation of
powers requirements precluded extradition in the absence of a treaty, but the Fifth
Circuit Court of Appeals upheld the constitutional validity of extradition by statute
rather than treaty when it overturned the district court finding on appeal.15
A question has occasionally arisen over whether an extradition treaty with a
colonial power continues to apply a former colony becomes independent. Although
the United States periodically renegotiates replacements or supplements for existing
treaties to make contemporary adjustments, we have a number of treaties that predate the dissolution of a colonial bond or some other adjustment in governmental
status. Fugitives in these situations have sometimes contested extradition on the
grounds that we have no valid extradition treaty with the successor government that
asks that they be handed over for prosecution. These efforts are generally
unsuccessful since successor governments will ordinarily have assumed the
extradition treaty obligations negotiated by their predecessors.16
No Treaty Crime.
Extradition is generally limited to crimes identified in the treaty. Early treaties
often recite a list of the specific extraditable crimes. Jay’s Treaty mentions only
murder and forgery; the inventory in our 1852 treaty with Prussia included eight
13

18 U.S.C. 3181(b)(“The provisions of this chapter shall be construed to permit, in the
exercise of comity, the surrender of persons, other than citizens, nationals, or permanent
residents of the United States, who have committed crimes of violence against nationals of
the United States in foreign countries without regard to the existence of any treaty of
extradition with such foreign government if the Attorney General certifies, in writing, that
– (1) evidence has been presented by the foreign government that indicates that had the
offenses been committed in the United States, they would constitute crimes of violence as
defined under section 16 of this title; and (2) the offenses charged are not of a political
nature”).
14

18 U.S.C. 3181 note, P.L. 104-132, §443, 110 Stat. 1280 (1996).

15

“The Constitution calls for the Executive to make treaties with the advice and consent of
the Senate. Throughout the history of this Republic, every extradition from the United
States has been accomplished under the terms of a valid treaty of extradition. In the instant
case, it is undisputed that no treaty exists between the United States and the Tribunal. This
is so even when, the Government insists, and the Court agrees, the Executive has the full
ability and right to negotiate such at a treaty. The absence of a treaty is a fatal defect in the
Government’s request that the Extraditee be surrendered. Without a treaty, this Court has
no jurisdiction to act, and Congress’ attempt to effectuate the Agreement in the absence of
a treaty is an unconstitutional exercise of power,” In re Surrender of Ntakirutimana, 988
F.Supp. 1038, 1042 (S.D.Tex. 1997), rev’d, Ntakirutimana v. Reno, 184 F.3d 419, 424-27
(5th Cir. 1999).
16

Hoxha v. Levi, 465 F.3d 554, 562-63 (3d Cir. 2006); Kastnerova v. United States, 365
F.3d 980, 986-87 (11th Cir. 2004); Then v. Melendez, 92 F.3d 851, 853-55 (9th Cir. 1996),
see generally, ABBELL & RISTAU, at 52-3, 180-81.
2010FOIA4519.000339

CRS-5
others;17 and our 1974 treaty with Denmark identifies several dozen extradition
offenses:
1. murder; voluntary manslaughter; assault with intent to commit murder. 2. Aggravated injury
or assault; injuring with intent to cause grievous bodily harm. 3. Unlawful throwing or
application of any corrosive or injurious substances upon the person of another. with schemes
intended to deceive or defraud, or by any other fraudulent means. 4. Rape; indecent assault;
sodomy accompanied by use of force or threat; sexual intercourse and other unlawful sexual
relations with or upon children under the age specified by the laws of both the requesting and
the requested States. 5. Unlawful abortion. 6. Procuration; inciting or assisting a person under
21 years of age or at the time ignorant of the purpose in order that such person shall carry on
sexual immorality as a profession abroad or shall be used for such immoral purpose; promoting
of sexual immorality by acting as an intermediary repeatedly or for the purpose of gain; profiting
from the activities of any person carrying on sexual immorality as a profession. 7. Kidnaping;
child stealing; abduction; false imprisonment. 8. Robbery; assault with intent to rob. 9. Burglary.
10. Larceny. 11. Embezzlement. 12. Obtaining property, money or valuable securities: by false
pretenses or by threat or force, by defrauding any governmental body, the public or any person
by deceit, falsehood, use of the mails or other means of communication in connection. 13.
Bribery, including soliciting, offering and accepting. 14. Extortion. 15. Receiving or
transporting any money, valuable securities or other property knowing the same to have been
unlawfully obtained. 16. Fraud by a bailee, banker, agent, factor, trustee, executor, administrator
or by a director or officer of any company. 17. An offense against the laws relating to
counterfeiting or forgery. 18. False statements made before a court or to a government agency
or official, including under United States law perjury and subornation of perjury. 19. Arson. 20.
An offense against any law relating to the protection of the life or health of persons from: a
shortage of drinking water; poisoned, contaminated, unsafe or unwholesome drinking water,
substance or products. 21. Any act done with intent to endanger the safety of any person
traveling upon a railway, or in any aircraft or vessel or bus or other means of transportation, or
any act which impairs the safe operation of such means of transportation. 22. Piracy; mutiny
or revolt on board an aircraft against the authority of the commander of such aircraft; any
seizure or exercise of control, by force or violence or threat of force or violence, of an aircraft.
23. An offense against the laws relating to damage to property. 24. a. Offenses against the laws
relating to importation, exportation or transit of goods, articles, or merchandise. b. Offenses
relating to willful evasion of taxes and duties. c. Offenses against the laws relating to
international transfers of funds. 25. An offense relating to the: a. spreading of false intelligence
likely to affect the price of commodities, valuable securities or any other similar interests; or b.
making of incorrect or misleading statements concerning the economic conditions of such
commercial undertakings as joint-stock companies, corporations, co-operative societies or
similar undertakings through channels of public communications, in reports, in statements of
accounts or in declarations to the general meeting or any proper official of a company, in
notifications to, or registration with, any commission, agency or officer having supervisory or
regulatory authority over corporations, joint-stock companies, other forms of commercial
undertakings or in any invitation to the establishment of those commercial undertakings or to
the subscription of shares. 28. Unlawful abuse of official authority which results in grievous
bodily injury or deprivation of the life, liberty or property of any person, [or] attempts to
commit, conspiracy to commit, or participation in, any of the offenses mentioned in this Article,
Art. 3, 25 U.S.T. 1293 (1974).18

17

10 Stat. 964, 966 (1852)(“murder, or assault with intent to commit murder, or piracy, or
arson, or robbery, or forgery, or the utterance of forged papers, or the fabrication or
circulation of counterfeit money, whether coin or paper money, or the embezzlement of
public moneys”).
18

Section 203 of Public Law 105-323 purports to require construction of an extradition
treaty that permits extradition for kidnaping to authorize extradition for parental kidnaping
as well; the impact of section 203 remains to be seen.
2010FOIA4519.000340

CRS-6
While many of our existing extradition treaties continue to list specific
extraditable offenses, the more recent ones feature a dual criminality approach, and
simply make all felonies extraditable (subject to other limitations found elsewhere
in their various provisions).19
Military and Political Offenses.
In addition to an explicit list of crimes for which extradition may be granted,
most modern extradition treaties also identify various classes of offenses for which
extradition may or must be denied. Common among these are provisions excluding
purely military and political offenses. The military crimes exception usually refers
to those offenses like desertion which have no equivalents in civilian criminal law.20
The exception is on relatively recent vintage.21 In the case of treaties that list specific
extraditable offenses, the exception is unnecessary since purely military offenses are
not listed. The exception became advisable, however, with the advent of treaties that
make extraditable any misconduct punishable under the laws of both treaty partners.
With the possible exception of selective service cases arising during the Vietnam
War period,22 recourse to the military offense exception appears to have been
infrequent and untroubled.

19

E.g., Argentine Extradition Treaty, Art.2, ¶1, S. Treaty Doc. 105-18 (eff. June 6,
2000)(“An offense shall be an extraditable offense if it is punishable under the laws in both
Parties by deprivation of liberty for a maximum period of more than one year or by a more
severe penalty”); see also, Paraguyan Extradition Treaty, Art. IV, ¶3, S. Treaty Doc. 106-4
(eff. Aug. 25, 2003); Bolivian Extradition Treaty, Art. II, ¶1, S. Treaty Doc. 104-22 (eff.
Nov. 21, 1996); French Extradition Treaty, Art.2, ¶1, S. Treaty Doc. 105-13 (eff. Feb. 1,
2002); Hungarian Extradition Treaty, Art.2, ¶1, S. Treaty Doc. 104-5 (eff. Mar. 18, 1997);
Jordanian Extradition Treaty , Art.2, ¶1, S. Treaty Doc. 104-3 (eff. July 29, 1995); and
Italian Extradition Treaty, Art. V, ¶1, 35 U.S.T. 3027 (1984).
Where an official citation is unavailable for particular treaty, we have used the Senate
Treaty Document citation along with the date upon which the treaty entered into force
according the State Department’s Treaties In Force 2007, available on July 25, 2007 at
[http://www.state.gov/documents/organization/83046.pdf]. Beginning with the 104th
Congress, Senate Treaty Documents are available on the Government Printing Office’s
website, [http://www.access.gpo.gov/congress].
20

E.g., Italian Extradition Treaty, Art. V, §3, 35 U.S.T. 3029 (1984) (“Extradition shall not
be granted for offenses under military law which are not offenses under ordinary criminal
law”). See generally, In re Extradition of Suarez-Mason, 694 F.Supp. 676, 702-3 (N.D.Cal.
1988)(the military offense exception covers crimes like “mutiny and desertion which are
outside the realm of ordinary criminal law”); BASSIOUNI at 676-78; ABBELL & RISTAU at
116-17, 212-13.
21

ABBELL, EXTRADITION TO AND FROM THE UNITED STATES (ABBELL) §3-2(25)(No United
States extradition treaty negotiated prior to 1960 contains an express military offense
exception).
22

Even there the political offense exception was thought more hospitable, except in the case
of desertion, see generally, Tate, Draft Evasion and the Problem of Extradition, 32 ALBANY
LAW REVIEW 337 (1968).
2010FOIA4519.000341

CRS-7
The political offense exception, however, has proven more troublesome.23 The
exception is and has been a common feature of extradition treaties for almost a
century and a half. In its traditional form, the exception is expressed in deceptively
simple terms.24 Yet it has been construed in a variety ways, more easily described in
hindsight than to predicate beforehand. As a general rule, American courts require
that a fugitive seeking to avoid extradition “demonstrat[e] that the alleged crimes
were committed in the course of and incidental to a violent political disturbance such
as a war, revolution or rebellion.”25
Contemporary treaties often seek to avoid misunderstandings in a number of
ways. They expressly exclude terrorist offenses or other violent crimes from the
definition of political crimes for purposes of the treaty;26 they explicitly extend the
political exception to those whose prosecution is politically or discriminatorily

23

See generally, BASSIOUNI, at 594-676; RESTATEMENT, §476, Comment g. & Reporters’
Notes 4-8; ABBELL & RISTAU at 199-212; Phillips, The Political Offense Exception and
Terrorism: Its Place in the Current Extradition Scheme and Proposals for its Future, 15
DICKINSON JOURNAL OF INTERNATIONAL LAW 337 (1997); The Political Offense Exception:
Reconciling the Tension Between Human Rights and International Public Order, 63
GEORGE WASHINGTON LAW REVIEW 585 (1995).
24

Egyptian Extradition Treaty, Art. III, 19 Stat. 574 (1874)(“The provisions of this treaty
shall not apply to any crime or offence of a political character”).

25

Kostotas v. Roche, 931 F.2d 169, 171 (1st Cir. 1991), citing, Eain v. Wilkes, 641 F.2d
504, 512 (7th Cir. 1981); Ordinola v. Hackman, 478 F.3d 588, 596-97 (4th Cir. 2007); Vo v.
Benov, 447 F.3d 1235, 1241 (9th Cir. 2006); Barapind v. Enomoto, 400 F.3d 744, 750 (9th
Cir. 2005); Escobedo v. United States, 623 F.2d 1098, 1104 (5th Cir. 1980); Sindona v.
Grant, 619 F.2d 167, 173 (2d Cir. 1980); Quinn v. Robinson, 783 F.2d 776, 807-9 (9th Cir.
1986); Ornelas v. Ruiz, 161 U.S. 689, 692 (1896).
26

E.g., Hungarian Extradition Treaty, Art. 2, ¶2, S. Treaty Doc. 104-5 (eff. Dec. 9,
1996)(“For purposes of this Treaty, the following offenses shall not be considered to be
political offenses: a. a murder or other willful crime against the person of a Head of State
of one of the Contracting Parties, or a member of the Head of State’s family; . . . c. murder,
manslaughter, or other offense involving substantial bodily harm; d. an offense involving
kidnaping or any form of unlawful detention, including the taking of a hostage; e. placing
or using an explosive, incendiary or destructive device capable of endangering life, of
causing substantial bodily harm, or of causing substantial property damage; and f. a
conspiracy or any type of association to commit offenses as specified in Article 2, paragraph
2, or attempt to commit, or participation in the commission of, any of the foregoing
offenses”); Polish Extradition Treaty, Art.5, ¶2, S. Treaty Doc. 105-14 (eff. Sept. 17,
1999)(murder or other offense against heads of state or their families; murder, manslaughter,
assault; kidnaping, abduction, hostage taking; bombing; or attempt or conspiracy to commit
any of those offenses); Extradition Treaty with Luxembourg, Art.4, ¶2, S. Treaty Doc. 10510 (eff. Feb. 1, 2002)(virtually the same); Costa Rican Extradition Treaty, Art.4, ¶2, S.
Treaty Doc. 98-17, (eff. Oct. 11, 1991)(violent crimes against a Head of State or a member
of his or her family).
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motivated;27 and/or they limit the reach of their political exception clauses to conform
to their obligations under multinational agreements.28
Capital Offenses.
A number of nations have abolished or abandoned capital punishment as a
sentencing alternative.29 Several of these have preserved the right to deny extradition
in capital cases either absolutely or in absence of assurances that the fugitive will not
be executed if surrendered.30 More than a few countries are reluctant to extradite in

27

Jamaican Extradition Treaty, Art. III, ¶2, S. Treaty Doc. 98-18 (eff. July 7, 1991)
(“Extradition shall also not be granted if . . . (b) it is established that the request for
extradition, though purporting to be on account of the extraditable offence, is in fact made
for the purpose of prosecuting or punishing the person sought on account of his race,
religion, nationality, or political opinions; or (c) the person sought is by reason of his race,
religion, nationality, or political opinions, likely to be denied a fair trial or punished,
detained or restricted in his personal liberty for such reasons” ); Extradition Treaty with the
Bahamas, Art. 3, ¶(1)(c), S. Treaty Doc. 102-17 (eff. Sept. 22, 1994)(“Extradition shall not
be granted when: . . . the executive authority of the Requested State determines that the
request was politically or racially motivated”); Extradition Treaty with Cyprus, Art.4, ¶3,
S. Treaty Doc. 105-16 (eff. Sept. 14, 1999)(politically motivated); French Extradition
Treaty, Art.4, ¶4, S. Treaty Doc. 105-13 (eff. Feb. 1, 2002)(prosecution or punishment on
account of the fugitive’s “race, religion, nationality or political opinions”).
28

Costa Rican Extradition Treaty, Art.4, ¶2(b), S. Treaty Doc. 98-17, (eff. Oct. 11, 1991);
Peruvian Extradition Treaty, Art. IV, ¶¶1-3 (eff. Aug. 25, 2003); Korean Extradition
Treaty, Art. 4, ¶2(b), S. Treaty Doc. 106-2 (eff. Dec. 20, 1999); Indian Extradition Treaty,
Art.4, ¶2(b)-(g), S. Treaty Doc. 105-30 (eff. July 21, 1999); Hungarian Extradition Treaty,
Art. 2, ¶2, S. Treaty Doc. 104-5 (eff. Dec. 9, 1996)(“For purposes of this Treaty, the
following offenses shall not be considered to be political offenses . . . an offense for which
both Contracting Parties have the obligation pursuant to a multilateral international
agreement to extradite the person sought or to submit the case to their competent authorities
for decision as to prosecution”). The State Department has noted that the list of crimes
subject to such international agreements includes air piracy, aircraft sabotage, crimes of
violence committed against foreign dignitaries, hostage taking and narcotics trafficking,
Letter of Submittal, Id. at VI. Unless restricted in the Treaty, the list apparently also
includes genocide, war crimes, theft of nuclear materials, slavery, torture, violence
committed against the safety of maritime navigation or maritime platforms, theft or
destruction of national treasures, counterfeiting currency and bribery of foreign officials.
BASSIOUNI at 665-66.
29

SCHABAS, THE INTERNATIONAL SOURCEBOOK ON CAPITAL PUNISHMENT, 239-45 (1997);
HOOD, THE DEATH PENALTY, 240-47 (2d ed. 1996).
30

E.g., Jordanian Extradition Treaty, Art. 7, S. Treaty Doc. 104-3 (eff. July 29, 1995)
(“when the offense for which extradition is sought is punishable by death under the laws in
the Requesting State and is not punishable by death under the laws in the Requested State,
the Requested State may refuse extradition unless the Requesting State provides such
assurances as the Requested State considers sufficient that the death penalty, if imposed,
shall not be carried out”); see also, Argentine Extradition Treaty, Art.6, S. Treaty Doc. 10518 (eff. June 15, 2000); Bolivian Extradition Treaty, Art. IV, ¶1, S. Treaty Doc. 104-22 (eff.
Nov. 21, 1996); Hungarian Extradition Treaty, Art. 7, ¶1, S. Treaty Doc. 104-5 (eff. Dec.
9, 1996); South African Extradition Treaty, Art.5, S. Treaty Doc. 106-24 (eff. June 25,
2001); Costa Rican Extradition Treaty, Art.7, S. Treaty Doc. 98-17 (eff. Oct. 11, 1991).
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a capital case even though their extradition treaty with the United State has no such
provision, based on opposition to capital punishment or to the methods and
procedures associated with execution bolstered by sundry multinational agreements
to which the United States is either not a signatory or has signed with pertinent
reservations.31
Want of Dual Criminality.
Dual criminality exists when the two parties to an extradition treaty each
punishes a particular form of misconduct. Historically, extradition treaties have
handled dual criminality in one of three ways. They list extraditable offenses and do
not otherwise speak to the issue. They list extraditable offenses and contain a
separate provisions requiring dual criminality. They identify as extraditable offenses
those offenses condemned by the laws of both nations. Today, “[u]nder most
international agreements . . . [a] person sought for prosecution or for enforcement of
a sentence will not be extradited . . . (c) if the offense with which he is charged or of
which he has been convicted is not punishable as a serious crime in both the
requesting and requested state. . .”32

On the other hand, the capital punishment mutuality provision can redound to our interests
when another nation has a wider range of capital offenses than do we, see e.g., S. Ex. Rept.
104-2, at 9 (1995)(“The United States delegation sought this provision because Jordan
imposes the death penalty for some crimes that are not punishable by death in the United
States”).
Some capital punishment clauses do not apply in murder cases, see e.g., Extradition
Treaty with the Bahamas, Art. 2, ¶2, S. Treaty Doc. 102-17 (eff. Sept. 22, 1994)(“When the
offense for which extradition is sought is punishable by death under the laws in the
Requesting State and is not punishable by death under the laws in the Requested State, the
competent authority of the Requested State may refuse extradition unless: (a) the offense
constitutes murder under the laws in the Requested State; or (b) the competent authority of
the Requesting State provides such assurances as the competent authority of the Requested
State considers sufficient that the death penalty will not be imposed or, if imposed, will not
be carried out”); Extradition Treaty with Thailand, Art. 6, S. Treaty Doc. 98-16 (eff. May
17, 1991); Extradition Treaty with Sri Lanka, Art.7, S. Treaty Doc. 106-34 (eff. Jan. 12,
2001); see also, Extradition Treaty with the United Kingdom, Art. IV, 28 U.S.T. 230 (eff.
May 17, 1977).
31

BASSIOUNI at 735-44; ABBELL & RISTAU at 117-19, 295-6; International and Domestic
Approaches to Constitutional Protections of Individual Rights: Reconciling the Soering and
Kindler Decisions, 34 AMERICAN CRIMINAL LAW REVIEW 225 (1996); Extradition, Human
Rights, and the Death Penalty: When Nations Must Refuse to Extradite a Person Charged
with a Capital Crime, 25 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL 189 (1994).
32

1 RESTATEMENT, §476; United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995).
Examples include the Italian Extradition Treaty, Art II, 35 U.S.T. 3027 (1984) (“An offense,
however denominated, shall be an extraditable offense only if it is punishable under the laws
of both Contracting Parties by deprivation of liberty for a period of more than one year or
by a more severe penalty. . .”); see also, Extradition Treaty with Belize, Art.2, ¶1, S. Treaty
Doc. 106-38 (eff. Mar. 21, 2001); Argentine Extradition Treaty, Art.2, ¶1, S. Treaty Doc.
105-18 (eff. June 15, 2000); Extradition Treaty with Uruguay, Art. 2, 35 U.S.T. 3201
(1973); Hungarian Extradition Treaty, Art. 2, ¶1, S. Treaty Doc. 104-5 (eff. Dec. 9, 1996);
Jordanian Extradition Treaty, Art. 2, ¶1, S. Treaty Doc. 104-3 (eff. July 29, 1995); Bolivian
Extradition Treaty, Art. II, ¶1, S. Treaty Doc. 104-22 (eff. Nov. 21, 1996); Extradition
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Although there is a split of authority over whether dual criminality resides in all
extradition treaties that do not deny its application,33 the point is largely academic
since it is a common feature of all American extradition treaties.34 Subject to varying
interpretations, the United States favors the view that treaties should be construed to
honor an extradition request if possible. Thus, dual criminality does not “require that
the name by which the crime is described in the two countries shall be same; nor that
the scope of the liability shall be coextensive, or, in other respects, the same in the
two countries. It is enough if the particular act charged is criminal in both
jurisdictions.”35 When a foreign country seeks to extradite a fugitive from the United
States dual criminality may be satisfied by reference to either federal or state law.36
Our treaty partners do not always construe dual criminality requirements as
broadly. In the past, some have been unable to find equivalents for attempt,
conspiracy, RICO, CCE, and crimes with prominent federal jurisdictional elements.37
Many modern extradition treaties contain provisions addressing the problem of
Treaty with the Bahamas, Art. 2, ¶1, S. Treaty Doc. 102-17 (eff. Sept. 22, 1994); Extradition
Treaty with Thailand, Art. 2, ¶1, S. Treaty Doc. 98-16 (eff. May 17, 1991); Costa Rican
Extradition Treaty, Art. 2, ¶1, S. Treaty Doc. 98-17 (eff. Oct. 11, 1991).
33

In re Extradition of Loharoia, 932 F.Supp. 802, 810 (N.D.Tex. 1996) (“The principle is
a general policy of extradition, and arguably applies even absent explicit inclusion in the
treaty in question. See, Wright v. Henkel, 190 U.S. 40, 58 (1903); Bauch v. Raiche, 618 F.2d
843, 847 (1st Cir. 1980). On the other hand, there is authority suggesting that the principle
does not apply unless it is expressly stated in the treaty. See, Factor [v. Laubenheimer], 290
U.S. [276], at 287-90 [(1933)]”).
34

Soma, Muther, & Brissette, Transnational Extradition for Computer Crimes; Are New
Treaties and Laws Needed? 34 HARVARD JOURNAL OF LEGISLATION 317, 324 (1997).
35

Collins v. Loisel, 259 U.S. 309, 312 (1922); United States v. Anderson, 472 F.3d 662,
664-65 (9th Cir. 2006); Gallo-Chamorro v. United States, 233 F.3d 1298, 1307 (11th Cir.
2000); DeSilva v. DiLeonardi, 125 F.3d 1110, 1113 (7th Cir. 1997); LoDuca v. United States,
93 F.3d 1100, 1112 (2d Cir. 1996); United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir.
1995); In re Extradition of Platko, 213 F.Supp.2d 1229, 1236 (S.D.Cal. 2002); see
generally, Test of “Dual Criminality” Where Extradition to or From Foreign Nation Is
Sought, 132 ALR FED 525 (1996 & Oct. 2006 Supp.).
36

International Extradition: Issues Arising Under the Dual Criminality Requirement, 1992
BRIGHAM YOUNG UNIVERSITY LAW REVIEW 191, 207 (“The current state of the law appears
to be that if the offense is considered criminal under federal law, the law of the asylum
State, or under the law of the preponderance of States, the dual criminal requirement is
satisfied”); Test of Dual Criminality Where Extradition From Foreign Nations Is Sought,
132 ALR FED. at 539-40.
37

The Racketeer Influenced and Corrupt Organization (RICO) provisions prohibit
acquisition or operation of an interstate commercial enterprise through the patterned
commission of various other “predicate” offenses, 18 U.S.C. 1961 to 1966. The Continuing
Criminal Enterprise (CCE) or drug kingpin provisions, 21 U.S.C. 848, outlaw management
of a large drug trafficking operation. Along with attempt, conspiracy and federal crimes
with distinctive jurisdictional elements, they pose difficulties when they approximate but
do not exactly matching the elements for extraditable offenses. They present a distinct
problem, however, when they are based entirely on predicate offenses that are not
themselves extraditable offenses. BASSIOUNI at 504-11; RICO, CCE, and International
Extradition, 62 TEMPLE LAW REVIEW 1281 (1989).
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jurisdictional elements38 and/or making extraditable attempt or conspiracy to commit
an extraditable offense.39 Some include special provisions for tax and customs
offenses as well.40
Extraterritoriality.
As a general rule, crimes are defined by the laws of the place where they are
committed. There have always been exceptions to this general rule under which a
nation was understood to have authority to outlaw and punish conduct occurring
outside the confines of its own territory. In the past, our extradition treaties applied
to crimes “committed within the [territorial] jurisdiction” of the country seeking
extradition.41 Largely as a consequence of terrorism and drug trafficking, however,
the United States now claims more sweeping extraterritorial application for our
criminal laws than recognized either in our more historic treaties or by many of

38

E.g., Hungarian Extradition Treaty, Art. 2, ¶3.b., S. Treaty Doc. 104-5 (eff. Dec. 9, 1996)
(“For the purpose of this Article, an offense shall be an extraditable offense . . . whether or
not the offense is one for which United States federal law requires the showing of such
matters as interstate transportation or use of the mails or of other facilities affecting
interstate or foreign commerce, such matters being merely for the purpose of establishing
jurisdiction in a United States federal court”); see also, Lithuanian Extradition Treaty, Art.
2, ¶3, S. Treaty Doc. 107-4 (eff. Mar. 31, 2003); Austrian Extradition Treaty, Art.2, ¶4(c),
S. Treaty Doc. 105-50 (eff. Jan. 1, 2000); Extradition Treaty with Belize, Art.2, ¶3(b), S.
Treaty Doc. 106-38 (eff. Mar. 21, 2001); Korean Extradition Treaty, Art.2, ¶3(c), S. Treaty
Doc. 106-2 (eff. Dec. 20, 1999).
39

E.g., Extradition Treaty with the Bahamas, Art. 2, ¶2, S. Treaty Doc. 102-17 (eff. Sept.
22, 1994)(“An offense shall also be an extraditable offense if it consists of an attempt or a
conspiracy to commit, aiding or abetting, counselling, causing or procuring the commission
of, or being an accessory before or after the fact to, an [extraditable] offense. . .”);
Extradition Treaty with Trinidad and Tobago, Art. 2, ¶2, S. Treaty Doc. 105-21 (eff. Nov.
29, 1999); Jordanian Extradition Treaty, Art. 2, ¶2, S. Treaty Doc. 104-3 (eff. July 29,
1995)(“An offense shall also be an extraditable offense if it consists of an attempt or a
conspiracy to commit, or participation in the commission of, an [extraditable] offense. . .”);
Extradition Treaty with Luxembourg, Art.2, ¶1(a), (b), S. Treaty Doc. 105-10 (eff. Feb. 1,
2002); Extradition Treaty with the United Kingdom, Art. III, ¶2, 28 U.S.T. 230
(1977)(“Extradition shall also be granted for any attempt or conspiracy to commit an
[extraditable] offense . . .”).
40

E.g., South African Extradition Treaty, Art. 2 ¶6, S. Treaty Doc. 106-24 (eff. June 25,
2001)(“Where extradition of a person is sought for an offense against a law relating to
taxation, customs duties, exchange control, or other revenue matters, extradition may not
be refused on the ground that the law of the Requested State does not impose the same kind
of tax or duty or does not contain a tax, customs duty, or exchange regulation of the same
kinds as the law of the Requesting State”); Austrian Extradition Treaty, Art. 2, ¶4(B), S.
Treaty Doc. 105-50 (eff. Jan. 1, 2002); Korean Extradition Treaty, Art.2, ¶6, S. Treaty Doc.
106-2 (eff. Dec. 20, 1999); Polish Extradition Treaty, Art.3, S. Treaty Doc. 105-14 (eff.
Sept. 17, 1999); but see, Extradition Treaty with Luxembourg, Art. 5, S. Treaty Doc. 105-10
(eff. Feb. 1, 2002) (“The executive authority of the Requested State shall have discretion to
deny extradition when the offense for which extradition is requested is a fiscal offense [i.e.,
purely a tax, customs, or currency offense]”).
41

ABBELL & RISTAU at 64-7, 278-80.
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today’s governments.42 Here, our success in eliminating extradition impediments by
negotiating new treaty provisions has been mixed. More than a few call for
extradition regardless of where the offense was committed.43 Yet perhaps an equal
number of contemporary treaties permit or require denial of an extradition request
that falls within an area where the countries hold conflicting views on extraterritorial
jurisdiction.44
Nationality.
The right of a country to refuse to extradite one’s own nationals is probably the
greatest single obstacle to extradition. The United States has long objected to the
impediment45 and recent treaties indicate that its hold may not be as formidable as

42

Even among countries with a fairly expansive view of the extraterritorial jurisdiction,
there may be substantial differences between the perceptions of common law countries and
those of civil law countries, Blakesley, A Conceptual Framework for Extradition and
Jurisdiction Over Extraterritorial Crimes, 1984 UTAH LAW REVIEW 685.
43

E.g., Peruvian Extradition Treaty, Art. II, ¶3(c), S. Treaty Doc. 107-6 (eff. Mar. 25,
2003)(“For the purposes of this Article, an offense shall be an extraditable offense,
regardless of . . . (c) where the offense was committed”); Bolivian Extradition Treaty, Art.
II, ¶3(b), S. Treaty Doc. 104-22 (eff. Nov. 21, 1996) (“To determine . . . whether an offense
is punishable under the laws in the Requested State, it shall be irrelevant . . . where the act
or acts constituting the offense were committed”); Jordanian Extradition Treaty, Art. 2, ¶4,
S. Treaty Doc. 104-3 (eff. July 29, 1995) (“An offense described in this Article shall be an
extraditable offense regardless of where the act or acts constituting the offense were
committed”); Austrian Extradition Treaty, Art.2, ¶6, S. Treaty Doc. 105-50 (eff. Jan. 1,
2002); Indian Extradition Treaty, Art.2, ¶1(4) (eff. July 21, 1999); Extradition Treaty with
Luxembourg, Art.2, ¶1(4), S. Treaty Doc. 105-10, (eff. Feb. 1, 2002).

44

E.g., Hungarian Extradition Treaty, Art. 2, ¶4, S. Treaty Doc. 104-5 (eff. Dec. 9, 1996)
(“If the offense has been committed outside the territory of the Requesting State, extradition
shall be granted if the laws of the Requested State provide for the punishment of an offense
committed outside of its territory in similar circumstances. If the laws of the Requested
State do not so provide, the executive authority of the Requested State may, in its discretion
grant extradition”); Extradition Treaty with the Bahamas, Art. 2, ¶4, S. Treaty Doc. 102-17
(eff. Sept. 22, 1994)(“An offense described in this Article shall be an extraditable offense
whether or not the offense was committed within the territory of the Requesting State.
However, if the offense was committed outside the territory of the Requesting State,
extradition shall be granted if the law of the Requested State provides for punishment of an
offense committed outside of its territory in similar circumstances”); Italian Extradition
Treaty, Art III, 35 U.S.T. 3028 (1984) (“When an offense has been committed outside the
territory of the Requesting Party, the Requested Party shall have the power to grant
extradition if its laws provide for the punishment of such an offense or if the person sought
is a national of the Requesting Party”); Extradition Treaty with Uruguay, Art. 2, ¶2, 35
U.S.T. 3206 (1973)(“. . . When the offense for which extradition has been requested has
been committed outside the territory of the requesting Party, extradition may be granted if
the laws of the requested Party provide for the punishment of such an offense committed in
similar circumstances”); French Extradition Treaty, Art. 2, ¶4, S. Treaty Doc. 105-13 (eff.
Feb. 1, 2002)(“Extradition shall be granted for an extraditable offense committed outside
the territory of the Requesting State, when the laws of the requested Party authorize the
prosecution or provide the punishment of that offense in similar circumstances”).

45

1 RESTATEMENT, §475, Reporters’ Note 4.
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was once the case. At one time it was fair to say that “United States extradition
treaties contained generally three types of such provisions. The first does not refer
to nationals specifically, but agrees to the extradition of all persons. Judicial
construction, as well as executive interpretation, of such clauses have consistently
held that the word ‘person’ includes nationals, and therefore refusal to surrender a
fugitive because he is a national cannot be justified . . . . The second and most
common type of treaty provision provides that ‘neither of the contracting parties shall
be bound to deliver up its own citizens or subjects . . . .’ [Congress has enacted
legislation to overcome judicial construction that precluded the United States from
surrendering an American under such provision.46] The third type of treaty provision
states that ‘neither of the contracting parties shall be bound to deliver up its own
citizens under the stipulations of this convention, but the executive authority of each
shall have the power to deliver them up if, in its discretion, it be deemed proper do
so.’”47
These basic three have been joined by a number of variants. A growing number
go so far as to declare that “Extradition shall not be refused on the ground that the
fugitive is a citizen or national of the Requested State.”48 Another form limits the
nationality exemption to nonviolent crimes;49 a third allows a conflicting obligation

46

The Supreme Court in Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936),
held that a national exemption clause that denied an obligation to extradition denied the
United States the authority to honor a treaty request to surrender an American. Congress
sought to reverse the result with the enactment of 18 U.S.C. 3196 (“If the applicable treaty
or convention does not obligate the United States to extradite its citizens to a foreign
country, the Secretary of State may, nevertheless, order the surrender to that country of a
United States citizen whose extradition has been requested by that country if the other
requirements of that treaty or convention are met”). At least two lower federal courts have
held that the statute grants the government authority to extradite an American, Hilario v.
United States, 854 F.2d 165 (E.D.N.Y. 1994); Gouveia v. Vokes, 800 F.Supp. 241 (E.D.Pa.
1992); see also, Lopez-Smith v. Hood, 121 F.3d 1322, 1325-326 (9th Cir. 1997)(section
3196 and a treaty provision stating that the parties “may” extradite their own nationals
affords to the Secretary of State discretion).
47

BASSIOUNI at 683-84; ABBELL & RISTAU at 67-71, 186-87, 280-81.

48

Argentine Extradition Treaty, Art.3, S. Treaty Doc. 105-18 (eff. June 15, 2000);
Extradition Treaty with Belize, Art.3, S. Treaty Doc. 106-38 (eff. Mar. 20, 2000); South
African Extradition Treaty, Art.3, S. Treaty Doc. 106-24 (eff. June 25, 2001); Extradition
Treaty with the Bahamas, Art. 4, S. Treaty Doc. 102-17 (eff. Sept. 22, 1994); Jordanian
Extradition Treaty, Art. 3, S. Treaty Doc. 104-3 (eff. July 29, 1995); Italian Extradition
Treaty, Art IV, 35 U.S.T. 3028 (1983); Extradition Treaty with Uruguay, Art. 4, 35 U.S.T.
3206 (1973).
49

Bolivian Extradition Treaty, Art. III, ¶1(b), S. Treaty Doc. 104-22 (eff. Nov. 21, 1996)
(“Neither Party shall be obligated to extradite its own nationals, except when the extradition
request refers to . . . (b) murder; voluntary manslaughter; kidnaping; aggravated assault;
rape; sexual offenses involving children; armed robbery; offenses related to the illicit traffic
in controlled substances; serious offenses related to terrorism; serious offenses related to
organized criminal activity; fraud against the government or involving multiple victims;
counterfeiting of currency; offenses related to the traffic in historical or archeological items;
offenses punishable in both States by deprivation of liberty for a maximum period of at least
ten years; or (c) an attempt or conspiracy, participation in, or association regarding the
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under a multinational agreement to wash the exemption away.50 Even where the
exemption is preserved, contemporary treaties more regularly refer to the obligation
to consider prosecution at home of those nationals whose extradition has been
refused.51
Double Jeopardy.
Depending on the treaty, extradition may also be denied on the basis of a
number of procedural considerations. Double punishment and/or double jeopardy
(also know as non bis in idem) clauses are among these.52 The more historic clauses
are likely to bar extradition for a second prosecution of the “same acts” or the “same
event” rather than the more narrowly drawn “same offenses.”53 The new model
limits the exemption to fugitives who have been convicted or acquitted of the same
offense and specifically denies the exemption where an initial prosecution has simply
been abandoned.54
commission of any of the offenses described in subparagraphs (a) and (b)”).
50

Bolivian Extradition Treaty, Art. III, ¶1(a), S. Treaty Doc. 104-22 (eff. Nov. 21, 1996)
(“Neither Party shall be obligated to extradite its own nationals, except when the extradition
request refers to: (a) offenses as to which there is an obligation to establish criminal
jurisdiction pursuant to multilateral international treaties in force with respect to the
Parties”).
51

E.g., Hungarian Extradition Treaty, Art. 3, ¶2, S. Treaty Doc. 104-5 (eff. Dec. 9, 1996)
(“If extradition is refused solely on the basis of the nationality of the person sought, the
Requested State shall, at the request of the Requesting State, submit the case to its
authorities for prosecution”); Austrian Extradition Treaty, Art.3, ¶¶1, 2, S. Treaty Doc. 10550 (eff. Jan. 1, 2002); Extradition Treaty with Cyprus, Art.3, ¶¶1, 2, S. Treaty Doc. 105-16
(eff. Sept. 14, 1999); Bolivian Extradition Treaty, Art. III, ¶3, S. Treaty Doc. 104-22 (eff.
Nov. 21, 1996); Extradition Treaty with Thailand, Art. 8, ¶2, S. Treaty Doc. 98-16 (eff. May
17, 1991); Costa Rican Extradition Treaty, Art. 8, ¶2, S. Treaty Doc. 98-17 (eff. Oct. 11,
1991); Jamaican Extradition Treaty, Art. VII, ¶¶2, 3, S. Treaty Doc. 98-18 (eff. July 7,
1991)(but also requiring extradition if a fugitive is a national of both the Requesting and
Requested State).
52

BASSIOUNI at 693-707; ABBELL & RISTAU at 96-100, 192-98, 290-93.

53

Italian Extradition Treaty, Art VI, 35 U.S.T. 3030 (1984) (“Extradition shall not be
granted when the person sought has been convicted, acquitted or pardoned, or has served
the sentence imposed, by the Requested Party for the same act for which extradition is
requested”); Extradition Treaty with the United Kingdom, Art. V, ¶1(a), 28 U.S.T. 230
(1977) (“Extradition shall not be granted if: (a) the person sought would, if proceeded
against in the territory of the requested Party for the offense for which his extradition is
requested, be entitled to be discharged on the grounds of a previous acquittal or conviction
in the territory of the requesting or requested Party or of a third State”).
54

E.g., Bolivian Extradition Treaty, Art. V, ¶2, S. Treaty Doc. 104-22 (eff. Nov. 21, 1996)
(“Extradition shall not be granted when the person sought has been convicted or acquitted
in the Requested State for the offense for which extradition is requested. Extradition shall
not be precluded by the fact that the authorities of the Requested State have decided to
refrain from prosecuting the person sought for the acts for which extradition is requested or
to discontinue any criminal proceedings which have been initiated against the person sought
for those acts.”); see also, Extradition Treaty with Sri Lanka, Art.5, S. Treaty Doc. 106-34
(eff. Jan. 12, 2001); Extradition Treaty with Trinidad and Tobago, Art.5, S. Treaty Doc.
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Lapse of Time.
Lapse of time or statute of limitation clauses are prevalent as well. “Many
[states] . . . preclude extradition if prosecution for the offense charged, or
enforcement of the penalty, has become barred by lapse of time under the applicable
law. Under some treaties the applicable law is that of the requested state,55 in others
that of the requesting state;56 under some treaties extradition is precluded if either
state’s statute of limitations has run.57 . . . When a treaty provides for a time-bar only
under the law of the requesting state, or only under the law of the requested state,
United States courts have generally held that time-bar of the state not mentioned does
not bar extradition. If the treaty contains no reference to the effect of a lapse of time
neither state’s statute of limitations will be applied.”58 Left unsaid is the fact that
some treaties declare in no uncertain terms that the passage of time is no bar to
extradition.59
In cases governed by American law and in instances of American prosecution
following extradition, applicable statutes of limitation and due process determine
whether pre-indictment delays bar prosecution60 and speedy trial provisions govern

105-21 (eff. Nov. 29, 1999); Extradition Treaty with the Bahamas, Art. 5, ¶¶1, 2, S. Treaty
Doc. 102-17 (eff. Sept. 22, 1994); Jordanian Extradition Treaty, Art. 5, ¶¶1, 2, S. Treaty
Doc. 104-3 (eff. July 29, 1995). Some include language to avoid confusion over whether
an American dismissal with prejudice is the same as an acquittal, Hungarian Extradition
Treaty, Art. 5, ¶1, S. Treaty Doc. 104-5 (eff. Dec. 9, 1996) (“Extradition shall not be granted
when the person sought has been convicted or acquitted or the case dismissed by court order
with finding and final effect in the Requested State for the offense for which extradition is
requested”).
55

E.g., Argentine Extradition Treaty, Art.7, ¶1, S. Treaty Doc. 105-18 (eff. June 15, 2000);
French Extradition Treaty, Art.8, ¶1, S. Treaty Doc. 105-13 (eff. Feb. 1, 2002).
56

E.g., Austrian Extradition Treaty, Art. 7, S. Treaty Doc. 105-50 (eff. Jan. 1, 2000); Indian
Extradition Treaty, Art.7, S. Treaty Doc. 105-30 (eff. July 21, 1999); Extradition Treaty
with the Bahamas, Art. 6, S. Treaty Doc. 102-17 (eff. Sept. 22, 1994); Hungarian
Extradition Treaty, Art. 6, S. Treaty Doc. 104-5 (eff. Dec. 9, 1996); Italian Extradition
Treaty, Art VII, 35 U.S.T. 3030 (1983).

57

E.g., Extradition Treaty with Uruguay, Art. 5, ¶3, 35 U.S.T. 3207 (1973); see also,
Jordanian Extradition Treaty, Art. 6, S. Treaty Doc. 104-3 (eff. July 29, 1995); Extradition
Treaty with the United Kingdom, Art. V, ¶1(b), 28 U.S.T. 230 (1977).
58

1 RESTATEMENT §476, Comment e; see also, BASSIOUNI at 707-12; ABBELL & RISTAU
at 94-6, 187-90, 289-90.
59

E.g., Jordanian Extradition Treaty, Art. 6, S. Treaty Doc. 104-3 (eff. July 29, 1995)
(“The decision whether to grant the request for extradition shall be made without regard to
provisions of the law of either Contracting State concerning lapse of time”); Extradition
Treaty with Belize, Art.8,106-38 (eff. Mar. 21, 2001); Extradition Treaty with Cyprus, Art.7,
S. Treaty Doc.105-16 (eff. Sept. 14, 1999).
60

U.S.Const. Amends. V, XIV; United States v. Lovasco, 431 U.S. 783, 789-90 (1977);
United States v. MacDonald, 456 U.S. 1, 8 (1982);United States v. Gregory, 322 F.3d 1157,
1165 (9th Cir. 2002); United States v. Farmer, 312 F.3d 933, 936 (8th Cir. 2003).
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whether post-indictment delays preclude prosecution.61
Other Features.
Expenses and Representation. Our extradition treaties, particularly the
more recent ones, often have other less obvious, infrequently mentioned features.
Perhaps the most common of these deal with the expenses associated with the
procedure and representation of the country requesting extradition before the courts
of the country of refuge. The distribution of costs is ordinarily governed by a treaty
stipulation, reflected in federal statutory provisions,62 under which the country
seeking extradition accepts responsibility for any translation expenses and the costs
of transportation after surrender, and the country of refuge assumes responsibility for
all other costs.63 Although sometimes included in a separate article, contemporary

61

U.S.Const. Amends. VI, XIV; Doggett v. United States, 505 U.S. 647, 651 (1992); Barker
v. Wingo, 407 U.S. 514, 530 (1972); United States v. White Horse, 316 F.3d 769, 774 (8th
Cir. 2003); United States v. Cope, 312 F.3d 757, 777-78 (6th Cir. 2003).
62

18 U.S.C. 3195 (“All costs or expenses incurred in any extradition proceeding in
apprehending, securing, and transmitting a fugitive shall be paid by the demanding authority.
All witness fees and costs of every nature in cases of international extradition, including the
fees of the magistrate, shall be certified by the judge or magistrate before whom the hearing
shall take place to the Secretary of State of the United States, and the same shall be paid out
of appropriations to defray the expenses of the judiciary or the Department of Justice as the
case may be. The Attorney General shall certify to the Secretary of State the amounts to be
paid to the United States on account of said fees and costs in extradition cases by the foreign
government requesting the extradition, and the Secretary of State shall cause said amounts
to be collected and transmitted to the Attorney General for deposit in the Treasury of the
United States”).
63

Hungarian Extradition Treaty, Art. 20, ¶¶2 & 3, S. Treaty Doc. 104-5 (eff. Dec. 9,
1996)(“2. The Requesting State shall bear the expenses related to the translation of
documents and transportation of the person surrendered. The Requested State shall pay all
other expenses incurred in that State by reason of the extradition proceedings. 3. Neither
State shall make any pecuniary claim against the other State arising out of the arrest,
detention, examination, or surrender of persons sought under this Treaty”); Indian
Extradition Treaty, Art. 20, ¶2, S. Treaty Doc. 105-30 (eff. July 21, 1999); French
Extradition Treaty, Art. 22, ¶2, S. Treaty Doc. 105-13 (eff. Feb. 1, 2002); Jordanian
Extradition Treaty, Art. 19, ¶¶2 & 3, S. Treaty Doc. 104-3 (eff. July 29, 1995); Costa Rican
Extradition Treaty, Art. 18, S. Treaty Doc. 98-17 (eff. Oct. 11, 1991); Extradition Treaty
with Thailand, Art. 18, S. Treaty Doc. 98-16 (eff. May 17, 1991); Jamaican Extradition
Treaty, Art. XVII, ¶¶1, 3 & 4, S. Treaty Doc. 98-18 (eff. July 7, 1991)(also requesting state
may be subject to a claim due to special expenses or concerning third party interests in
transferred property); Extradition Treaty with the Bahamas, Art. 18, ¶¶2 & 3, S. Treaty
Doc. 102-17 (eff. Sept. 22, 1994); Italian Extradition Treaty, Art XXI, 35 U.S.T. 3041
(1984); but see, Bolivian Extradition Treaty, Art. XVI, ¶¶3 & 4, S. Treaty Doc. 104-22 (eff.
Nov. 21, 1996)(“The Requesting State shall bear expenses related to the translation of
documents and the transportation of the person sought. 4. Neither Party shall make any
pecuniary claim against the other arising from the arrest, detention, custody, examination,
or surrender of a person sought under this Treaty”)(note absence of language as to the
responsibility for cost other than transportation or translation); Extradition Treaty with
Uruguay, Art. 18, 35 U.S.T. 3216 (similar).
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treaties generally make the country of refuge responsible for legal representation of
the country seeking extradition.64
Transfer of Evidence. Contemporary treaties regularly permit a country to
surrender documents and other evidence along with an extradited fugitive. An
interesting attribute of these clauses is that they permit transfer of the evidence even
if the fugitive becomes unavailable for extradition. This may make some sense in the
case of disappearance or flight, but seems a bit curious in the case of death.65
Transit. A somewhat less common clause permits transportation of a fugitive
through the territory of either of the parties to a third country without the necessity
of following the treaty’s formal extradition procedure.66

64

Jordanian Extradition Treaty, Art. 19, ¶1, S. Treaty Doc. 104-3 (eff. July 29, 1995)(“The
Requested State shall advise, assist, appear in court on behalf of the Requesting State, and
represent the interests of the Requesting State, in any proceedings arising out of a request
for extradition”); Extradition Treaty with Luxembourg, Art. 20, ¶1, S. Treaty Doc. 1-5-10
(eff. Feb. 1, 2002); Extradition Treaty with Sri Lanka, Art. 19, ¶1, S. Treaty Doc.106-34
(eff. Jan. 12, 2001); Hungarian Extradition Treaty, Art. 20, ¶1, S. Treaty Doc. 104-5;
Extradition Treaty with the Bahamas, Art. 18, ¶1, S. Treaty Doc. 102-17 (eff. Sept. 22,
1994); Costa Rican Extradition Treaty, Art. 20, S. Treaty Doc. 98-17 (eff. Oct. 11, 1991);
Bolivian Extradition Treaty, Art. XVI, ¶¶1 & 2, S. Treaty Doc. 104-22 (eff. Nov. 21, 1996);
Extradition Treaty with Uruguay, Art. 18, 35 U.S.T. 3216 (1983); Italian Extradition
Treaty, Art XX, 35 U.S.T. 3040 (1984) Jamaican Extradition Treaty, Art. XVII, ¶2, S.
Treaty Doc. 98-18 (eff. July 7, 1991)(“The Requested State shall also provide for the
representation of the Requesting State in any proceedings arising in the Requested State out
of a request for extradition”); Extradition Treaty with Thailand, Art. 18, ¶2, S. Treaty Doc.
98-16 (eff. May 17, 1991).
65

The typical clause provides that “All articles, instruments, objects of value, documents,
and other evidence relating to the offense may be seized and, upon granting of extradition,
surrendered to the requesting State. The property mentioned in this Article may be
surrendered even when extradition cannot be granted or effected due to the death,
disappearance, or escape of the person sought. The rights of third parties in such property
shall be duly respected,” Costa Rican Extradition Treaty, Art. 18, ¶1, S. Treaty Doc. 98-17
(eff. Oct. 11, 1991); see also, South African Extradition Treaty, Art.16, S. Treaty Doc. 10624 (eff. June 25, 2001); Extradition Treaty with Trinidad and Tobago, Art. 13, ¶1, S. Treaty
Doc. 105-21 (eff. Nov. 29, 1999); Jordanian Extradition Treaty, Art. 15, ¶1, S. Treaty Doc.
104-3 (eff. July 29, 1995); Hungarian Extradition Treaty, Art. 20, ¶1, S. Treaty Doc. 104-5;
Extradition Treaty with the Bahamas, Art. 16, ¶1, S. Treaty Doc. 102-17 (eff. Sept. 22,
1994); Bolivian Extradition Treaty, Art. XIV, S. Treaty Doc. 104-22 (eff. Nov. 21, 1996);
Extradition Treaty with Uruguay, Art. 16, 35 U.S.T. 3215 (1983); Italian Extradition
Treaty, Art XVIII, 35 U.S.T. 3039 (1984) Jamaican Extradition Treaty, Art. XVI, ¶1, S.
Treaty Doc. 98-18 (eff. July 7, 1991); Extradition Treaty with Thailand, Art. 16, S. Treaty
Doc. 98-16 (eff. May 17, 1991).
66

E.g., Extradition Treaty with the Bahamas, Art. 17, S. Treaty Doc. 102-17 (eff. Sept. 22,
1994)(“(1) Either Contracting State may authorize transportation through its territory of a
person surrendered to the other State by a third State. A request for transit shall be made
through the diplomatic channel and shall contain a description of the person being
transported and a brief statement of the facts of the case. (2) No authorization is required
where air transportation is used and no landing is scheduled on the territory of the
Contracting State. If an unscheduled landing occurs on the territory of the other Contracting
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Constitutionality
The Constitution provides that the judicial power of the United States extends
to certain cases and controversies.67 Historically, this has lead to discomfort
whenever an effort is made to insert the federal courts in the midst of an executive
or legislative process, such as the issuance of purely advisory opinions.68 The fact
that extradition turns on the discretion of the Secretary of State following judicial
certification has led to the suggestion that the procedure established by the
extradition statute is constitutionally offensive to this separation of powers. First
broached by a district court in the District of Columbia,69 subsequent courts have
rejected the suggestion in large measure under the view that much like the issuance
of a search or arrest warrant the task is compatible with tasks constitutionally
assigned to the judiciary.70

Procedure for Extradition from the United States
A foreign country usually begins the extradition process with a request
submitted to the State Department71 sometimes including the documentation required

State, transit shall be subject to paragraph (1) of this Article. That Contracting State shall
detain the person to be transported until the request for transit is received and the transit is
effected, so long as the request is received within 96 hours of the unscheduled landing”); see
also, Argentine Extradition Treaty, Art. 18, S. Treaty Doc. 105-18 (eff. June 15, 2000);
Korean Extradition Treaty, Art. 17, S. Treaty Doc. 106-2 (eff. Dec. 20, 1999); Costa Rican
Extradition Treaty, Art. 19, S. Treaty Doc. 98-17 (eff. Oct. 11, 1991); Jordanian Extradition
Treaty, Art. 18, S. Treaty Doc. 104-3 (eff. July 29, 1995); Hungarian Extradition Treaty,
Art. 19, S. Treaty Doc. 104-5; Bolivian Extradition Treaty, Art. XV, S. Treaty Doc. 104-22
(eff. Nov. 21, 1996); Extradition Treaty with Thailand, Art. 17, S. Treaty Doc. 98-16 (eff.
May 17, 1991); Extradition Treaty with Uruguay, Art. 17, 35 U.S.T. 3216 (1983); Italian
Extradition Treaty, Art XIX, 35 U.S.T. 3040 (1984).
67

U.S. Const. Art. III, §2.

68

Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792); Muskrat v. United States, 219 U.S. 346
(1911); Frankfurter, Advisory Opinions, 37 HARVARD LAW REVIEW 1002 (1924).
69

Lobue v. Christopher, 893 F.Supp. 65 (D.D.C. 1995), vac’d on juris. grounds, 82 F.3d
1081 (D.C.Cir. 1996).

70

In re Requested Extradition of Artt, 158 F.3d 462, 469-70 (9th Cir. 1998), redesignated
after rehearing, In re Artt, 248 F.3d 1197 (9th Cir. 2001); LoDuca v. United States, 93 F.3d
1100, 1105-10 (2d Cir. 1996); DeSilva v. DiLeonardi, 125 F.3d 1110, 1113 (7th Cir. 1997);
see also, In re Extradition of Seong-I, 346 F.Supp.2d 1149, 1154-156 (D.N.M. 2004); Noel
v. United States, 12 F.Supp.2d 1300, 1304-305 (M.D.Fla. 1998); In re Extradition of
Lehming, 951 F.Supp. 505, 508-9 (D.Del. 1996); Sandhu v. Bransom, 932 F.Supp. 822, 826
(N.D.Tex. 1996); Werner v. Hickey, 920 F.Supp. 1257, 1259 (M.D.Cal. 1996); see also,
Innocence Abroad: An Analysis of the Constitutionality of International Extradition, 33
STANFORD JOURNAL OF INTERNATIONAL LAW 343 (1997).
71

Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006). “[T]hrough the diplomatic channel”
seems to be the phrase favored most recently, see e.g., Hungarian Extradition Treaty, Art.
8, ¶1, S. Treaty Doc. 104-5 (eff. Dec. 9, 1996)(“All requests for extradition shall be made
through the diplomatic channel”); Polish Extradition Treaty, Art.9, ¶1, S. Treaty Doc. 10514 (eff. Sept. 17, 1999); Korean Extradition Treaty, Art. 8, ¶1, S. Treaty Doc. 106-2 (eff.
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CRS-19
by the treaty.72 When a requesting nation is concerned that the fugitive will take
flight before it has time to make a formal request, it informally asks for extradition
and provisional arrest with the assurance that the full complement of necessary
documentation will follow.73 In either case, the Secretary of State, at his discretion,
may forward the matter to the Department of Justice to begin the procedure for the
arrest of the fugitive “to the end that the evidence of criminality may be heard and
considered.”74

Dec. 20, 1999); Extradition Treaty with the Bahamas, Art. 8, ¶1, S. Treaty Doc. 102-17 (eff.
Sept. 22, 1994); Jordanian Extradition Treaty, Art. 8 ¶1, S. Treaty Doc. 104-3 (eff. July 29,
1995); Bolivian Extradition Treaty, Art. VI, ¶1, S. Treaty Doc. 104-22 (eff. Nov. 21, 1996);
Italian Extradition Treaty, Art. X, 35 U.S.T. 3031 (1983); Extradition Treaty with Uruguay,
Art. 10, ¶1, 35 U.S.T. 3210 (1973).
72

Jordanian Extradition Treaty, Art. 8 ¶¶2, 3, & 4, S. Treaty Doc. 104-3 (eff. July 29,
1995)(“2. All requests shall contain: (a) documents, statements, photographs (if possible),
or other types of information which describe the identity, nationality, and probable location
of the person sought; (b) information describing the facts of the offense and the procedural
history of the case; (c) the text of the law describing the essential elements of the offense
for which extradition is requested; (d) the text of the law prescribing the punishment for the
offense; and (e) the documents, statements, or other types of information specified in
paragraph 3 or paragraph 4 of this Article, as applicable.”); 3. A request for extradition of
a person who is sought for prosecution shall also contain: (a) a copy of the warrant or order
of arrest issued by a judge or other competent authority; (b) a copy of the charging
documents; and (c) such information as would provide a reasonable basis to believe that the
person sought committed the offense for which extradition is requested. 4. A request for
extradition relating to a person who has been found guilty of the offense for which
extradition is sought shall also contain: (a) a copy of the judgment of conviction or, if such
copy is not available, a statement by a judicial authority that the person has been found
guilty; (b) information establishing that the person sought is the person to whom the finding
of guilt refers; (c) a copy of the sentence imposed, if the person sought has been sentenced,
and a statement establishing to what extent the sentence has been carried out; and (d) in the
case of a person who has been found guilty in absentia, the documents required in paragraph
3"); see also, South African Extradition Treaty, Art.9, ¶¶2, 3 & 4 S. Treaty Doc. 106-24 (eff.
June 25, 2001); Extradition Treaty with Luxembourg, Art. 8, ¶¶2, 3 & 4, S. Treaty Doc. 10510 (eff. Feb. 1, 2002); Hungarian Extradition Treaty, Art. 8, ¶¶2, 3, & 4, S. Treaty Doc.
104-5 (eff. Dec. 9, 1996); Extradition Treaty with the Bahamas, Art. 8, ¶¶2, 3, & 4, S.
Treaty Doc. 102-17 (eff. Sept. 22, 1994); Bolivian Extradition Treaty, Art. VI, ¶¶2-6, S.
Treaty Doc. 104-22 (eff. Nov. 21, 1996).
73

ABBELL at §3-3(7).

74

“Whenever there is a treaty or convention for extradition between the United States and
any foreign government, or in cases arising under section 3181(b)[relating to the extradition
from the United States of foreign nationals charged with, or convicted of, crimes of violence
committed against Americans overseas, without reference to an extradition treaty], any
justice or judge of the United States, or any magistrate authorized so to do by a court of the
United States, or any judge of a court of record of general jurisdiction of any State, may,
upon complaint made under oath, charging any person found within his jurisdiction, with
having committed within the jurisdiction of any such foreign government any of the crimes
provided for by such treaty or convention . . . issue his warrant for the apprehension of the
person so charged, that he may be brought before such justice, judge, or magistrate, to the
end that the evidence of criminality may be heard and considered,” 18 U.S.C. 3184;
Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir. 2005); see generally, ABBELL & RISTAU
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CRS-20
The United States Attorneys Manual encapsulates the Justice Department’s
participation thereafter in these words:
1. OIA [Office of International Affairs] reviews . . . requests for sufficiency
and forwards appropriate ones to the district [where the fugitive is found].
2. The Assistant United States Attorney assigned to the case obtains a
warrant and the fugitive is arrested and brought before the magistrate judge or
the district judge.
3. The government opposes bond in extradition cases.
4. A hearing under 18 U.S.C. 3184 is scheduled to determine whether the
fugitive is extraditable. If the court finds the fugitive to be extraditable, it enters
an order of extraditability and certifies the record to the Secretary of State, who
decides whether to surrender the fugitive to the requesting government. In some
cases a fugitive may waive the hearing process.
5. OIA notifies the foreign government and arranges for the transfer of the
fugitive to the agents appointed by the requesting country to receive him or her.
Although the order following the extradition hearing is not appealable (by either
the fugitive or the government), the fugitive may petition for a writ of habeas
corpus as soon as the order is issued. The district court’s decision on the writ is
subject to appeal, and extradition may be stayed if the court so orders.75

Arrest and Bail.
Although United States takes the view that an explicit treaty provision is
unnecessary,76 extradition treaties sometimes expressly authorize requests for
provisional arrest of a fugitive prior to delivery of a formal request for extradition.77

at 159-71. The requesting nation is usually represented in federal court by an Assistant
United States Attorney or other Justice Department attorney, ABBELL at §3-3(9);
Semmelman & Snell, Defending the International Extradition Case, CHAMPION 20, 21
(June, 2006).
75

UNITED STATES ATTORNEYS MANUAL (USAM) §9-15.700, available on July 27, 2007 at
[http://www.usdoj.gov/usao/eousa/foi_reading_room/usam/title9/15mcrm.htm].
76

ABBELL at §3-3(7).

77

Extradition Treaty with Thailand, Art. 10, ¶¶1, 2, S. Treaty Doc. 98-16 (eff. May 17,
1991)(“In case of urgency, either Contracting Party may request the provisional arrest of any
accused or convicted person. Application for provisional arrest shall be made through the
diplomatic channel or directly between the Department of Justice . . . and the Ministry of
Interior in Thailand . . . . (2) The application shall contain: a description of the person
sought; the location of that person, if known; a brief statement of the facts of the case
including, if possible, the time and location of the offense; a statement of the existence of
a warrant of arrest or a judgment of conviction against that person . . . and a statement that
a request for extradition of the person will follow”). Such provisions usually also call for
the release of the fugitive upon the failure to submit a formal request within a designated
period of time, e.g., id., Art. 10 ¶4 (60 days); Argentine Extradition Treaty (60 days), Art.
11, ¶4, S. Treaty Doc. 105-18 (eff. June 15, 2000); Korean Extradition Treaty (two months),
Art. 10, ¶4, S. Treaty Doc. 106-2 (eff. Dec. 20, 1999); Hungarian Extradition Treaty (60
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Regardless of whether detention occurs pursuant to provisional arrest, as a
consequence of the initiation of an extradition hearing or upon certification of
extradition, the fugitive is not entitled to release on bail except under rare “special
circumstances.”78 This limited opportunity for pre-extradition release may be further
restricted under the applicable treaty.79
Hearing.
The precise menu for an extradition hearing is dictated by the applicable
extradition treaty, but a common check list for a hearing conducted in this country
would include determinations that:
1.
2.
3.
4.
5.
6.
7.

There exists a valid extradition treaty between the United States and
the requesting state;
The relator is the person sought;
The offense charged is extraditable;
The offense charged satisfies the requirement of double criminality;
There is ‘probable cause’ to believe the relator committed the offense
charged;
The documents required are presented in accordance with United States
law, subject to any specific treaty requirements, translated and duly
authenticated . . . ; and
Other treaty requirements and statutory procedures are followed.80

days), Art. 11, S. Treaty Doc. 104-5 (eff. Dec. 9, 1996); Extradition Treaty with the
Bahamas (60 days), Art. 10, S. Treaty Doc. 102-17 (eff. Sept. 22, 1994); Jordanian
Extradition Treaty (60 days with a possible 30-day extension), Art. 11, S. Treaty Doc. 104-3
(eff. July 29, 1995); Bolivian Extradition Treaty (60 days), Art. VIII, S. Treaty Doc. 104-22
(eff. Nov. 21, 1996); Italian Extradition Treaty (45 days), Art. XII, 35 U.S.T. 3034-35
(1984); Extradition Treaty with Uruguay (45 days), Art. 11, ¶1, 35 U.S.T. 3212-213 (1973).
78

Wright v. Henkel, 190 U.S. 40, 61-3 (1903)(no bail following certification absent special
circumstances); United States v. Kin-Hong, 83 F.3d 523, 524-25 (1st Cir. 1996) (no bail
during pendency of extradition proceedings absent special circumstances); In re Requested
Extradition of Kirby, 106 F.3d 855, 863 (9th Cir. 1996) (release on bail pending the
completion of extradition hearings requires special circumstances); Borodin v. Ashcroft, 136
F.Supp.2d 125, 128-33 (E.D.N.Y. 2001); Hababou v. Albright, 82 F.Supp.2d 347, 349-52
(D.N.J. 2000); see also, In re Extradition of Sacirbegovic, 280 F.Supp.2d 81, 83 (S.D.N.Y.
2003); In re Extradition of Molnar, 182 F.Supp.2d 684, 686-89 (N.D.Ill. 2002)(suggesting
it may be easier to demonstrate special circumstances following provisional arrest than after
a formal request has been presented); Parretti v. United States, 122 F.3d 758, 786 (9th Cir.
1997) (suggesting that the strong presumption against bail be abandoned), opinion withdraw
upon the flight of the respondent, 143 F.3d 508 (9th Cir. 1998); International Extradition
and the Right to Bail, 34 STANFORD JOURNAL OF INTERNATIONAL LAW 407 (1998).
79

See e.g., Costa Rican Extradition Treaty, Art. 12, S. Treaty Doc. 98-17 (eff. Oct. 11,
1991)(“A person detained pursuant to the Treaty shall not be released until the extradition
request has been finally decided, unless such release is required under the extradition law
of the Requested State or unless this Treaty provides for such release”).
80

In re Extradition of Valdez-Mainero, 3 F.Supp.2d 1112, 1114-115 (S.D.Cal. 1998), citing,
Bassiouni, at Ch. IX, §5.1; see also, ABBELL & RISTAU at 172-241; shorthand versions
appear in Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000)(“The judicial officer’s
inquiry is confined to the following: whether a valid treaty exists, whether the crime charged
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An extradition hearing is not, however, “in the nature of a final trial by which
the prisoner could be convicted or acquitted of the crime charged against him. . . .
Instead, it is essentially a preliminary examination to determine whether a case is
made out which will justify the holding of the accused and his surrender to the
demanding nation. . . . The judicial officer who conducts an extradition hearing thus
performs an assignment in line with his or her accustomed task of determining if
there is probable cause to hold a defendant to answer for the commission of an
offense.”81
The purpose of the hearing is in part to determine whether probable cause exists
to believe that the individual committed an offense covered by the extradition treaty.
The individual may offer evidence to contradict or undermine the existence of
probable cause,82 but affirmative defenses that might be available at trial are
irrelevant.83 The rules of criminal procedure and evidence that would apply at trial
have no application.84 Hearsay is not only admissible but may be relied upon

is covered by the relevant treaty; and whether the evidence marshaled in support of the
complaint for extradition is sufficient under the applicable standard of proof”); and Vo v.
Benov, 447 F.3d 1235, 1237 (9th Cir. 2006)(“The authority of a magistrate judge serving as
an extradition judicial officer is thus limited to determining an individual’s eligibility to be
extradited, which he does by ascertaining whether a crime is an extraditable offense under
the relevant treaty and whether probable cause exists to sustain the charge”); United States
v. Lin Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997).
81

LoDuca v. United States, 93 F.3d 1100, 1104 (2d Cir. 1996)(internal quotation marks
omitted), quoting, Benson v. McMahon, 127 U.S. 457, 463 (1888); Collins v. Loisel, 259
U.S. 309, 316 (1922); and Ward v. Rutherford, 921 F.2d 286, 287 (D.C. Cir. 1990); see also,
Kastnerova v. United States, 365 F.3d 980, 987 (11th Cir. 2004); DeSilva v. DiLeonardi, 125
F.3d 1110, 1112 (7th Cir. 1997); In re Extradition of Molnar, 202 F.Supp.2d 782, 786
(N.D.Ill. 2002).
82

Barapind v. Enomoto, 400 F.3d 744, 749 (9th Cir. 2005); Hoxha v. Levi, 465 F.3d 554,
561 (3d Cir. 2006).
83

DeSilva v. DiLeonardi, 125 F.3d 1110, 1112 (7th Cir. 1997)(legal custodian defense to
kidnaping charge), citing, Charlton v. Kelly, 229 U.S. 447 (1913), and Collins v. Loisel, 259
U.S. 309 (1922); Lopez-Smith v. Hood, 121 F.3d 1322, 1324 (9th Cir. 1997)(due process bar
to criminal trial of incompetent defendant); In re Extradition of Schweidenback, 3 F.Supp.2d
113, 117 (D.Mass. 1998)(evidence related to a defense is excludable); In re Extradition of
Diaz Medina, 210 F.Supp.2d 813, 819 (N.D.Tex. 2002).
84

Afanasjev v. Hurlburt, 418 F.3d 1159, 1164-165 (11th Cir. 2005); United States v. KinHong, 110 F.3d 103, 120 (1st Cir. 1997); Then v. Melendez, 92 F.3d 851, 855 (9th Cir. 1996);
In re Extradition of Fulgencio Garcia, 188F.Supp.2d 921, 932 (N.D.Ill. 2002); F.R.CRIM.P.
54(b)(5), F.R.EVID. 1101(d)(3). Evidence offered to support an extradition request need
only be authenticated, Barapind v. Enomoto, 400 F.3d 744, 748 (9th Cir. 2005); 18 U.S.C.
3190 (“Depositions, warrants, or other papers or copies thereof offered in evidence upon the
hearing of any extradition case shall be received and admitted as evidence on such hearing
for all the purposes of such hearing if they shall be properly and legally authenticated so as
to entitle them to be received for similar purposes by the tribunals of the foreign country
from which the accused party shall have escaped, and the certificate of the principal
diplomatic or consular officer of the United States resident in such foreign country shall be
proof that the same, so offered, are authenticated in the manner required”); 22 C.F.R. §92.40
(foreign extradition requests are authenticated by the U.S. chiefs of mission).
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exclusively;85 the Miranda rule has no application;86 initiation of extradition may be
delayed without regard for the Sixth Amendment right to a speedy trial or the Fifth
Amendment right of due process;87 nor does the Sixth Amendment right to the
assistance of counsel apply.88 Due process, however, will bar extradition of
informants whom the government promised confidentiality and then provided the
evidence necessary to establish probable cause for extradition.89
Moreover, extradition will ordinarily be certified without “examining the
requesting country’s criminal justice system or taking into account the possibility that
the extraditee will be mistreated if returned.”90 This “non-inquiry rule” is premised

85

Hoxha v. Levi, 465 F.3d 554, (3d Cir. 2006); Afanasjev v. Hurlburt, 418 F.3d 1159, 1165
(11th Cir. 2005); United States v. Kin-Hong, 110 F.3d 103, 120 (1st Cir. 1997), citing, Collins
v. Loisel, 259 U.S. 309, 317 (1922); In re Extradition of Platko, 213 F.Supp.2d 1229, 1237
(S.D.Cal. 2002).
86

In re Extradition of Powell, 4 F.Supp.2d 945, 951-52 (S.D.Cal. 1998); Valenzuela v.
United States, 286 F.3d 1223, 1229 (11th Cir. 2002)(noting that even compelled statements
that incriminate the fugitive under the laws of the requesting country would be admissible
in an extradition hearing); cf., United States v. Balsys, 524 U.S. 666 (1998)(the Fifth
Amendment does not prohibit compelled statements simply because they are incriminating
under the laws of a foreign nation).
87

Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir. 1994); McMaster v. United States, 9 F.3d
47, 49 (8th Cir. 1993); Martin v. Warden, 993 F.2d 824, 829 (11th Cir. 1993); Bovio v. United
States, 989 F.2d 255, 260 (7th Cir. 1993); Sabatier v. Daborwski, 586 F.2d 866, 869 (1st Cir.
1978); Jhirad v. Ferrandina, 536 F.2d 478, 485 n.9 (2d Cir. 1976); In re Extradition of
Fulgencio Garcia, 188F.Supp.2d 921, 932 (N.D.Ill. 2002)(internal citations omitted)(“the
Sixth Amendment right to a speedy trial and the Fifth Amendment right against undue delay
are inapplicable to an extradition. Likewise, the Sixth Amendment right to effective counsel
does not apply to extradition proceedings. The Supreme Court has found no constitutional
infirmity where those subject to extradition proceedings have been denied an opportunity
to confront their accusers. Finally, the Fifth Amendment guarantee against double jeopardy
and the right to a Miranda warning are inapplicable to an extradition proceeding”).
88

DeSilva v. DiLeonardi, 181 F.3d 865, 868-69 (7th Cir. 1999).

89

Valenzuela v. United States, 286 F.3d 1223, 1229-230 (11th Cir. 2002).

90

In re Extradition of Cheung, 968 F.Supp. 791, 798-99 (D.Conn, 1997)(“The rule of noninquiry is well-established in the circuits and has been applied in extraditions to a panoply
of nations. Martin v. Warden, 993 F.2d 824 (11th Cir. 1993)(Canada); Koskotas v. Rocke,
931 F.2d 169 (1st Cir. 1991)(Greece); Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986
(U.K.); Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981)(Israel); Escobedo v. United States, 623
F.2d 1098 (5th Cir. 1980)(Mexico) . . .”); see also, Hoxha v. Levi, 465 F.3d 554, (3d Cir.
2006); Lopez-Smith v. Hood, 121 F.3d 1322, 1327 (9th Cir. 1997); United States v. KinHong, 110 F.3d 103, 110 (1st Cir. 1997); United States v. Smyth, 61 F.3d 711, 714 (9th Cir.
1995)(explaining the exception in the U.K. Supplementary Treaty); see also, Semmelman,
Federal Courts, the Constitution, and the Rule of Non-Inquiry in International Extradition
Proceedings, 76 CORNELL LAW REVIEW 1198 (1991).
Gallina v. Fraser, 278 F.3d 77 (2d Cir. 1960), declined to depart from the rule but
observed that under some circumstance an extraditee might face “procedures or punishments
so antipathetic to a federal court’s sense of decency as to require re-examination” of the
question. The courts appear to have rarely if ever encountered such procedures or
punishments, In re Extradition of Marinero, 990 F.Supp. 1208, 1230 (S.D.Cal. 1997)(“There
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CRS-24
on the view that, “[w]hen an American citizen commits a crime in a foreign country,
he cannot complain if required to submit to such modes of trial and to such
punishment as the laws of that country may prescribe for its own people, unless a
different mode be provided for by treaty stipulations between that country and the
United States.”91
Nevertheless, unique irritants in the diplomatic relations between the United
States and Great Britain stimulated a supplementary extradition treaty with singular
characteristics.92 “The Supplementary Treaty alters the extradition procedures in
force under the 1977 Treaty in three significant ways: (1) it limits the scope of the
political offense exception;93 (2) it authorizes a degree of judicial inquiry into the
factors motivating a request for extradition;94 and (3) it creates a limited right to

is no legal support for a judicially created ‘humanitarian exception’ [of the type foreseen in
Gallina] in an extradition proceeding”); In re Extradition of Sandhu, 886 F.Supp. 318, 322
(S.D.N.Y. 1993)(“The ‘Gallina exception’ to the rule of non-inquiry has yet to be applied”);
Corneljo-Barreto v. Seifert, 218 F.3d 1004, 1010 (9th Cir. 2000)(“Our research failed to
identify any case in which this [humanitarian exception] has been applied . . . .”).
91

Martin v. Warden, 993 F.2d 824, 829-30 (11th Cir. 1993), quoting, Neely v. Henkel, 180
U.S. 109, 123 (1901).
92

“The Treaty was a response by the United States and British executive branches to
several recent federal court decisions denying requests by the United Kingdom for the
extradition of members of the Provisional Irish Republic Army . . . . [T]he denied requests
were for PIRA members who had committed violent acts against British forces occupying
Northern Ireland . . . Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986); In re Mackin, 668
F.2d 122 (2d Cir. 1981); In re Doherty, 559 F.Supp. 270 (S.D.N.Y. 1984); In re Mullen, No.
3-78-1099 MG (N.D.Cal. May 11, 1979),” Questions of Justice; U.S. Courts’ Powers of
Inquiry Under Article 3(a) of the United States-United Kingdom Supplementary Extradition
Treaty, 62 NOTRE DAME LAW REVIEW 474, 475-76 n.8 (1987); see also, Comparative
Application of the Non-Discrimination Clause in the U.S.-U.K. Supplementary Extradition
Treaty, 5 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 493 (1993).
93

“For the purposes of the Extradition Treaty, none of the following shall be regarded as
an offense of a political character: (a) an offense for which both Contracting Parties have
the obligation pursuant to a multilateral international agreement to extradite the person
sought or to submit his case to their competent authorities for decision as to prosecution; (b)
murder, voluntary manslaughter, and assault causing grievous bodily harm; (c) kidnaping,
abduction, or serious unlawful detention, including taking a hostage; (d) an offense
involving the use of a bomb, grenade, rocket, firearm, letter or parcel bomb, or any
incendiary device if this use endangers any person; (e) an attempt to commit any of the
foregoing offenses or participation as an accomplice of a person who commits or attempts
to commit such an offense,” British Supplementary Extradition Treaty, Art. 1, S. Exec. Rep.
99-17 (eff. Dec. 23, 1986).
94

“(a) Notwithstanding any other provision in this Supplementary Treaty, extradition shall
not occur if the person sought establishes to the satisfaction of the competent judicial
authority by a preponderance of the evidence that the request for extradition has in fact been
made with a view to try or punish him on account of his race, religion, nationality, or
political opinions, or that he would, if surrendered, be prejudiced at his trial or punished,
detained or restricted in his personal liberty by reason of his race, religion, nationality, or
political opinions,” id. at Art. 3(a).
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appeal an extradition decision,”95 In re Extradition of Artt, 158 F.3d at 465 (9th Cir.
1998), redesignated, In re Artt, 248 F.3d 1197 (9th Cir. 2001). The United States and
the United Kingdom subsequently negotiated a more contemporary replacement96 to
which the Senate has given its advice and consent97 but which has yet to enter into
force.98
Some may view implementation of the Torture Convention as a second
exception. In implementation of the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, Congress enacted
section 2422 of the Foreign Affairs Reform and Restructuring Act which states in
relevant part, “It shall be the policy of the United States not to . . . extradite . . . any
person to a country in which there are substantial grounds for believing the person
would be in danger of being subjected to torture, regardless of whether the person is
physically present in the United States.”99 The Secretary of State is bound to enforce
the policy.100 Although the Act asserts that the declaration of policy and its
accompanying enforcement responsibilities are not intended to create a basis for
judicial review, some fugitives have argued that the Secretary’s decision to extradite
following court certification and in the face of a challenge under the Convention or
implementing legislation is subject to habeas corpus review or to review under the
Administrative Procedure Act. At least as of this writing, circuit law is to the
contrary.101
95

“(b) In the United States, the competent judicial authority shall only consider the defense
to extradition set forth in paragraph (a) for defenses listed in Article 1 of this Supplementary
Treaty. A finding under paragraph (a) shall be immediately appealable by either party to the
United States district court, or court of appeals, as appropriate. The appeal shall receive
expedited consideration at every stage. The time for filing notice of appeal shall be 30 days
from the date of the filing of the decision. In all other respects, the applicable provisions
of the Federal Rules of Appellate Procedure or Civil Procedure, as appropriate, shall govern
the appeals process,” id. at Art. 3(b).
96

S. Treaty Doc. 108-23 (2004).

97

152 Cong. Rec. S10766-767 (daily ed. Sept. 29, 2006).

98

For a more extensive discussion, see CRS Report RL32096, Extradition Between the
United States and Great Britain: The 2003 Treaty, available in abbreviated form as CRS
Report RS21633, Extradition Between the United States and Great Britain: A Sketch of the
2003 Treaty.

99
100

Sec. 2242(a), P.L. 105-277, 112 Stat. 2681-822 (1998), 8 U.S.C. 1231 note.
Sec. 2242(b), 8 U.S.C. 1231 note; 22 C.F.R. pt.95.

101

Mironescu v. Costner, 480 F.3d 664, 673-77 (4th Cir. 2007); see also, Hoxha v. Levi, 465
F.3d 554, 565 (3d Cir. 2006)(declining to address the issue since the Secretary had not rule
at the time and consequently it was not ripe for decision). The Hoxha court also describes
the Ninth Circuit’s struggles with the question: “The Ninth Circuit discussed this issue in
a series of cases beginning in 2000. In Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9th
Cir.2000) (“Cornejo-Barreto I ”), the Ninth Circuit held that, under FARR and the APA, “a
fugitive fearing torture may petition [through habeas corpus] for review of the Secretary's
decision to surrender him” following a court certification of extraditability. Id. at 1014-15.
Because the Secretary had not yet made an extradition decision in the case, the Court
affirmed the denial of habeas relief without prejudice to a new filing should the Secretary
decide to extradite the petitioner. Id. at 1016-17. After the Secretary made the decision to
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Review.
If at the conclusion of the extradition hearing, the court concludes there is some
obstacle to extradition and refuses to certify the case, “[t]he requesting government’s
recourse to an unfavorable disposition is to bring a new complaint before a different
judge or magistrate, a process it may reiterate apparently endlessly.”102
If the court concludes there is no such obstacle to extradition and certifies to the
Secretary of State that the case satisfies the legal requirements for extradition, the
fugitive has no right of appeal, but may be entitled to limited review under habeas
corpus.103 “[H]abeas corpus is available only to inquire whether the magistrate had
jurisdiction, whether the offense charged is within the treaty and, by a somewhat
liberal extension, whether there was any evidence warranting the finding that there
was reasonable ground to believe the accused guilty.”104 In this last assessment,
appellate courts will only “examine the magistrate judge’s determination of probable
cause to see if there is ‘any evidence’ to support it.”105

extradite, the petitioner filed a second habeas petition, based on Cornejo-Barreto I. On
appeal, the Ninth Circuit held that the conclusion in Cornejo-Barreto I as to the availability
of APA review was non-binding dicta, because the Secretary had not yet made a decision
to extradite when that case was decided. Cornejo-Barreto v. Siefert, 379 F.3d 1075, 1082
(9th Cir.2004) ( “Cornejo-Barreto II ”). Considering the issue anew, the Court concluded
that, under the doctrine of non-inquiry, the Secretary's decision to extradite was not subject
to judicial review, and FARR and the APA did nothing to change this result. Id. at 1087. The
Ninth Circuit granted rehearing en banc in the case, but following the government's decision
to withdraw its extradition claim, the case was dismissed as moot. Cornejo-Barreto v.
Siefert, 386 F.3d 938 (9th Cir.2004); Cornejo-Barretto v. Siefert, 389 F.3d 1307 (9th
Cir.2004). As a result, neither Cornejo-Barreto I nor Cornejo-Barreto II is binding
precedent in the Ninth Circuit,” 465 F.3d at 564 n.16. The view that Cornejo-Barretto I is
no longer binding may be something of an overstatement. As a later 9th Cir. panel pointed
out, “The holding in Cornejo-Barreto I was disapproved of by Cornejo-Barretto v. Siefert,
379 F.3d 1075 (9th Cir.2004)(“Cornejo-Barreto II”). The en banc court, however, later
vacated Cornejo-Barreto II and denied the government’s request to vacate Cornejo-Barreto
I. Cornejo-Barretto v. Siefert, 389 F.3d 1307 (9th Cir.2004)(en banc),” Prasoprat v. Benov,
421 F.3d 1009, 1012 n.1 (9th Cir. 2005).
102

Gill v. Imundi, 747 F.Supp. 1028, 1039 (S.D.N.Y. 1990), citing, In re Doherty, 786 F.2d
491, 503 (2d Cir. 1986); In re Extradition of Massieu, 897 F.Supp. 176, 179 (D.N.J. 1995);
Hooker v. Klein, 573 F.2d 1360, 1365 (9th Cir. 1978), citing inter alia, Collins v. Loisel, 262
U.S. 426 (1923); ABBELL & RISTAU at 252-54.
103

Ordinola v. Hackman, 478 F.3d 588, 598 (4th Cir. 2007); Vo v. Benov, 447 F.3d 1235,
1240 (9th Cir. 2006); Afanasjev v. Hurlburt, 418 F.3d 1159, 1163 (11th Cir. 2005); Sidali v.
I.N.S., 107 F.3d 191, 195 (3d Cir. 1997), citing, Collins v. Miller, 252 U.S. 364, 369 (1920);
ABBELL & RISTAU at 243-52.
104

Ordinola v. Hackman, 478 F.3d 588, 598 (4th Cir. 2007), quoting Fernandez v. Phillips,
268 U.S. 311, 312 (1925); Valenzuela v. United States, 286 F.3d 1223, 1229 (11th Cir. 2002);
Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009-10 (9th Cir. 2000); DeSilva v. DiLeonardi,
125 F.3d 1110, 1112 (7th Cir. 1997); Sidali v. I.N.S., 107 F.3d 191, 195 (3d Cir. 1997); Smith
v. United States, 82 F.3d 964, 965 (10th Cir. 1996).
105

United States v. Kin-Hong, 110 F.3d 103, 116-17 (1st Cir. 1997), citing, Fernandez v.
Phillips, 268 U.S. 311, 312 (1925); Sidali v. I.N.S., 107 F.3d 191, 199-200 (3d Cir. 1997);
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Surrender.
If the judge or magistrate certifies the fugitive for extradition, the matter then
falls to the discretion of the Secretary of State to determine whether as a matter of
policy the fugitive should be released or surrendered to the agents of the country that
has requested his or her extradition.106 The procedure for surrender, described in
treaty107 and statute,108 calls for the release of the prisoner if he or she is not claimed
within a specified period of time,109 often indicates how extradition requests from

and Then v. Melendez, 92 F.3d 851, 854 (9th Cir. 1996); Valenzuela v. United States, 286
F.3d 1223, 1229 (11th Cir. 2002).
106

United States v. Kin-Hong, 110 F.3d 103, 109 (1st Cir. 1997)(“It is then within the
Secretary of State’s sole discretion to determine whether or not the relator should actually
be extradited. See 18 U.S.C. §3186 (`The Secretary of State may order the person
committed under section 3184 . . . of this title to be delivered to any authorized agent of such
foreign government . . .’”); Executive Discretion in Extradition, 62 COLUMBIA LAW REVIEW
1313 (1962).
107

E.g., Extradition Treaty with Thailand, Art. 11, ¶3, S. Treaty Doc. 98-16 (eff. May 17,
1991)(“If the extradition has been granted, surrender of the person sought shall take place
within such time as may be prescribed by the laws of the Requested State. The competent
authorities of the Contracting Parties shall agree on the time and place of the surrender of
the person sought. If, however, that person is not removed from the territory of the
Requested State within the prescribed time, that person may be set at liberty and the
Requested State may subsequently refuse extradition for the same offense”); Argentine
Extradition Treaty, Art.12, ¶6, S. Treaty Doc. 105-18 (eff. June 15, 2000); Austrian
Extradition Treaty, Art.14, ¶¶2, 3, S. Treaty Doc. 105-50 (eff. Jan. 1, 2002); Hungarian
Extradition Treaty, Art. 13, S. Treaty Doc. 104-5 (eff. Dec. 9, 1996); Costa Rican
Extradition Treaty, Art. 13, S. Treaty Doc. 98-17 (eff. Oct. 11, 1991); Jamaican Extradition
Treaty, Art. IX, S. Treaty Doc. 98-18 (eff. July 7, 1991); Extradition Treaty with the
Bahamas, Art. 13, S. Treaty Doc. 102-17 (eff. Sept. 22, 1994); Bolivian Extradition Treaty,
Art. IX, S. Treaty Doc. 104-22 (eff. Nov. 21, 1996); Jordanian Extradition Treaty, Art. 12,
S. Treaty Doc. 104-3 (eff. July 29, 1995); Italian Extradition Treaty, Art XIII, 35 U.S.T.
3036 (1984).
108

18 U.S.C. 3186 (“The Secretary of State may order the person committed under sections
3184 or 3185 of this title to be delivered to any authorized agent of such foreign
government, to be tried for the offense of which charged. Such agent may hold such person
in custody, and take him to the territory of such foreign government, pursuant to such treaty.
A person so accused who escapes may be retaken in the same manner as any person accused
of any offense”).

109

18 U.S.C. 3188 (“Whenever any person who is committed for rendition to a foreign
government to remain until delivered up in pursuance of a requisition, is not so delivered
up and conveyed out of the United States within two calendar months after such
commitment, over and above the time actually required to convey the prisoner from the jail
to which he was committed, by the readiest way, out of the United States, any judge of the
United States, or of any State, upon application made to him by or on behalf of the person
so committed, and upon proof made to him that reasonable notice of the intention to make
such application has been given to the Secretary of State, may order the person so committed
to be discharged out of custody, unless sufficient cause is shown to such judge why such
discharge ought not to be ordered”).
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more than one country for the same fugitive are to be handled,110 and frequently
allows the fugitive to be held for completion of a trial or the service of a criminal
sentence before being surrendered.111

Extradition for Trial or Punishment in the United States
The laws of the country of refuge and the applicable extradition treaty govern
extradition back to the United States of a fugitive located overseas. The request for
extradition comes from the Department of State whether extradition is sought for trial
in federal or state court or for execution of a criminal sentence under federal or state
law.112

110

E.g., Hungarian Extradition Treaty, Art. 15, S. Treaty Doc. 104-5 (eff. Dec. 9, 1996)
(“If the Requested State receives requests from the other Contracting Party and from any
other State or States for the extradition of the same person, either for the same offense or
for different offenses, the executive authority of the Requested State shall determine to
which State it will surrender the person. In making its decision, the Requested State shall
consider all relevant factors, including but not limited to: a. whether the requests were made
pursuant to treaty; b. the place where the offense was committed; c. the respective interests
of the Requesting States; d. the gravity of the offense; e. the nationality of the victim; f. the
possibility of further extradition between the Requesting State; and g. the chronological
order in which the requests were received from the Requesting States”); Extradition Treaty
with Trinidad and Tobago, Art.12, S. Treaty Doc. 105-21 (eff. Nov. 29, 1999); Polish
Extradition Treaty, Art. 17, S. Treaty Doc. 105-14 (eff. Sept. 17, 1999); Extradition Treaty
with Thailand, Art. 13, S. Treaty Doc. 98-16 (eff. May 17, 1991); Costa Rican Extradition
Treaty, Art. 15, S. Treaty Doc. 98-17 (eff. Oct. 11, 1991); Jamaican Extradition Treaty, Art.
XIII, S. Treaty Doc. 98-18 (eff. July 7, 1991); Extradition Treaty with the Uruguay, Art. 14,
35 U.S.T. 3214-215 (1973); Bolivian Extradition Treaty, Art. X, S. Treaty Doc. 104-22 (eff.
Nov. 21, 1996); Jordanian Extradition Treaty, Art. 14, S. Treaty Doc. 104-3 (eff. July 29,
1995); Italian Extradition Treaty, Art XV, 35 U.S.T. 3037 (1984).

111

E.g., Jamaican Extradition Treaty, Art. XII, S. Treaty Doc. 98-18 (eff. July 7, 1991) (“If
the extradition request is granted in the case of a person who is being prosecuted or is
serving a sentence in the territory of the Requested State for a different offence, the
Requesting State shall, unless its laws otherwise provide, defer the surrender of the person
sought until the conclusion of the proceedings against that person or the full execution of
any punishment that may be or may have been imposed”); Extradition Treaty with Sri
Lanka, Art.13, ¶2, S. Treaty Doc. 106-34 (eff. Jan. 12, 2001); French Extradition Treaty,
Art. 16, ¶2, S. Treaty Doc. 105-13 (eff. Feb. 1, 2002); Hungarian Extradition Treaty, Art.
14, S. Treaty Doc. 104-5 (eff. Dec. 9, 1996); Extradition Treaty with Thailand, Art. 12, S.
Treaty Doc. 98-16 (eff. May 17, 1991); Costa Rican Extradition Treaty, Art. 14, S. Treaty
Doc. 98-17 (eff. Oct. 11, 1991); Bolivian Extradition Treaty, Art. XI, S. Treaty Doc. 104-22
(eff. Nov. 21, 1996); Jordanian Extradition Treaty, Art. 13, S. Treaty Doc. 104-3 (eff. July
29, 1995); Italian Extradition Treaty, Art XIV, 35 U.S.T. 3036-37 (1984).

112

RESTATEMENT, §478, Comment e (“Requests for extradition of persons from foreign
states may be made only by the Department of State. If the offense with which the person
is charged or of which he has been convicted is one under federal law, the application for
extradition must be submitted by the prosecutor to the Department of Justice, which will
review the documents and, if satisfied of their sufficiency, transmit them to the Department
of State for forwarding to the requested state. If the offense is one under [the law of any of
the states of the United States], the application must be submitted by or with the
endorsement of the Governor of the State, and must be reviewed by the Department of
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CRS-29
The Justice Department’s Office of International Affairs must approve requests
for extradition of fugitives from federal charges or convictions and may be asked to
review requests from state prosecutors before they are considered by the State
Department.113 Provisions in the United States Attorneys Manual and the
corresponding Justice Department’s Criminal Resource Manual sections supplement
treaty instructions on the procedures to be followed in order to forward a request to
the State Department.114
The first step is to determine whether the fugitive is extraditable. The Justice
Department’s checklist for determining extraditability begins with an identification
of the country in which the fugitive has taken refuge.115 If we have no extradition
treaty with the country of refuge, extradition is not a likely option.116 When there is
a treaty, extradition is only an option if the treaty permits extradition. Common
impediments include citizenship, dual criminality, statutes of limitation, and capital
punishment issues.
Many treaties permit a country to refuse to extradite its citizens even in the case
of dual citizenship.117 As for dual criminality, whether the crime of conviction or the
crime charged is an extraditable offense will depend upon the nature of the crime and
where it was committed. If the applicable treaty lists extraditable offenses, the crime
must be on the list.118 If the applicable treaty insists only upon dual criminality, the
underlying misconduct must be a crime under the laws of both the United States and
the country of refuge.119

Justice before transmission to the Department of State. If the State Department is satisfied
that the conditions for extradition under the applicable treaty have been met, it will request
extradition in the name of the United States, and, where appropriate, will arrange for
representation of the United States at the proceedings in the requested state. When
extradition proceedings in the foreign state have been completed and the person sought has
been certified to be extraditable, the Secretary or [her] authorized deputy may issue a
warrant to federal or State officials to act as agents of the United States for the purpose of
taking custody of the person in the requested state for return to the United States”).
113

“The Office of International Affairs (OIA) provides information and advice to Federal
and State prosecutors about the procedure for requesting extradition from abroad. OIA also
advises and provides support to Federal prosecutors handling foreign extradition requests
for fugitives found in the United States. Every formal extradition request for international
extradition based on Federal criminal charges must be reviewed and approved by OIA. At
the request of the Department of State, formal requests based on State charges are also
reviewed by OIA before submission to the Department of State,” USAM §9-15.210.

114

Criminal Resource Manual (CRM) §§601-610, available on July 27, 2007 at
[http://www.usdoj.gov/usao/eousa/foi_reading_room/usam/title9/crm00601.htm]; USAM
§§9-15.100 to 9-15.800.

115

CRM §603[A].

116

Id.

117

CRM §603[B].

118

CRM §603[C].

119

Id.
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CRS-30
Where the crime was committed matters; some treaties will only permit
extradition if the offense was committed within the geographical confines of the
United States.120 Timing also matters. The speedy trial features of U.S. law require
a good faith effort to bring to trial a fugitive who is within the government’s reach.121
Furthermore, the lapse of time or speedy trial component of the applicable extradition
treaty may preclude extradition if prosecution would be barred by a statute of
limitations in the country of refuge.122 Some treaties prohibit extradition for capital
offenses; more often they permit it but only with the assurance that a sentence of
death will not be executed.123
Prosecutors may request provisional arrest of a fugitive without waiting for the
final preparation of the documentation required for a formal extradition request, if
there is a risk of flight and if the treaty permits it. The Justice Department
encourages judicious use of provisional arrest because of the pressures that may
attend it.124 The Criminal Resource Manual contains the form for collection of the
information that must accompany either a federal or state prosecutor’s application for
a Justice Department request for provisional arrest.125
Although treaty requirements vary, the Justice Department suggests that
prosecutors supply formal documentation in the form of an original and four copies
of:
- a prosecutor’s affidavit describing the facts of the case, including dates, names,
docket numbers and citations, and preferably executed before a judge or
magistrate (particularly if extradition is sought from a civil law country)126

120

CRM §603[F].

121

United States v. Blanco, 861 F.2d 773, 778 (2d Cir. 1988); United States v. Leaver, 358
F.Spp.2d 255, 265 (S.D.N.Y. 2004); cf., Doggett v. United States, 505 U.S. 647, 656-58
(1992).

122

CRM §603[F].

123

ABBELL at §6-2(25).

124

USAM §9-15.230 (“. . . Once the United States requests provisional arrest . . . [it] must
submit as formal request for extradition, supported by all necessary documents, duly
certified, authenticated and translated into the language of the country where the fugitive
was arrested, within a specified time (from 30 days to three months, pending on the treaty).
. . . Failure to follow through on an extradition request by submitting the requested
documents after a provisional arrest has been made will result in release of the fugitive,
strains on diplomatic relations, and possible liability for the prosecutor. The Office of
International Affairs (OIA) determines whether the facts meet the requirement of urgency
under the terms of the applicable treaty. If they do, OIA requests provisional arrest; if not,
the prosecutor assembles the documents for a formal request. The latter method is favored
when the defendant is unlikely to flee because the time pressures generated by a request for
provisional arrest often result in errors that can damage the case . . .”).

125

CRM §604; USAM §9-15.230.

126

USAM §9-15.240; CRM §605.
2010FOIA4519.000365

CRS-31
- copies of the statutes the fugitive is said to have violated, the statutes governing
the penalties that may be imposed upon conviction, and the applicable statute of
limitations127
- if the fugitive has been convicted and sentenced: identification evidence;
certified documentation of conviction, sentence, and the amount of time served
and remaining to be served; copies of the statutes of conviction; and a statement
that the service of the remaining sentence is not barred by a statute of
limitations128
- if the fugitive is being sought for prosecution or sentencing: certified copies of
the arrest warrant (preferably signed by the court or a magistrate) and of the
indictment or complaint129
- if the fugitive is being sought for prosecution or sentencing: evidence of the
identity of the individual sought (fingerprints/photographs) and of the evidence
upon which the charges are based and of the fugitive’s guilt in the form of
witness affidavits (preferable avoiding the use grand jury transcripts and,
particularly in the case of extradition from a common law country, the use of
hearsay).130

If the Justice Department approves the application for extradition, the request
and documentation are forwarded to the State Department, translated if necessary,
and with State Department approval forwarded through diplomatic channels to the
country from whom extradition is being sought.131
The treaty issue most likely to arise after extradition and the fugitive’s return to
this country is whether the fugitive was surrendered subject to any limitations such
as those posed by the doctrine of specialty.
Specialty.
Under the doctrine of specialty, sometimes called speciality, “a person who has
been brought within the jurisdiction of the court by virtue of proceedings under an
extradition treaty, can only be tried for one of the offences described in that treaty,
and for the offence with which he is charged in the proceedings for his extradition,
until a reasonable time and opportunity have been given him after his release or trial
upon such charge, to return to the country from whose asylum he had been forcibly
taken under those proceedings.”132 The limitation, expressly included in many
127

USAM §9-15.240; CRM §607.

128

USAM §9-15.240; CRM §609.

129

USAM §9-15.240; CRM §606.

130

USAM §9-15.240; CRM §608.

131

ABBELL at §7-1(8); USAM §9-15.250.

132

United States v. Alvarez-Machain, 504 U.S. 655, 661 (1992), quoting, United States v.
Rauscher, 119 U.S. 407, 430 (1886); see also, United States v. Anderson, 472 F.3d 662, 671
(9th Cir. 2006); United States v. Garrido-Santana, 360 F.3d 565, 577 (6th Cir. 2004); United
States v. Campbell, 300 F.3d 202, 209 (2d Cir. 2002); United States v. LeBaron, 156 F.3d
2010FOIA4519.000366

CRS-32
treaties,133 however, is designed to preclude prosecution for different substantive
offenses and does not bar prosecution for different or additional counts of the same
offense.134 And some courts have held that an offense whose prosecution would be
barred by the doctrine may nevertheless be considered for purposes of the federal
sentencing guidelines,135 or for purposes of criminal forfeiture.136 At least where an

621, 626 (5th Cir. 1998); United States v. Tse, 135 F.3d 200, 204 (1st Cir. 1998);
Semmelman, The Doctrine of Specialty in the Federal Courts: Making Sense of United
States v. Rauscher, 34 VIRGINIA JOURNAL OF INTERNATIONAL LAW 71 (1993); Application
of Doctrine of Specialty to Federal Criminal Prosecution of Accused Extradited from
Foreign Country, 112 ALR FED. 473 (1993 & Oct. 2006 Supp.); BASSIOUNI at 511-69;
ABBELL & RISTAU at 331-35.
133

Although the wording varies, the content of these provisions roughly corresponds to
those in the Jamaican Extradition Treaty, Art. XIV, S. Treaty Doc. 98-18 (eff. July 7,
1991)(“(1) A person extradited under this Treaty may only be detained, tried or punished
in the Requesting State for the offence for which extradition is granted, or (a) for a lesser
offence proved by the facts before the court of committal . . . (b) for an offence committed
after the extradition; or (c) for an offence in respect to which the executive authority of the
Requested State . . . consents to the person’s detention, trial or punishment. . . or (d) if the
person (i) having left the territory of the Requesting State after his extradition, voluntarily
returns to it; or (ii) being free to leave the territory of the Requesting State after his
extradition, does not so leave within forty-five (45) days . . . . (2) A person extradited under
this Treaty may not be extradited to a third State unless (a) the Requested State consents;
or (b) the circumstances are such that he could have been dealt with in the Requesting State
pursuant to sub-paragraph (d) of paragraph (1)”); see also, Extradition Treaty with Belize,
Art. 14, S. Treaty Doc. 106-38 (eff. March 21, 2001); Polish Extradition Treaty, Art. 19, S.
Treaty Doc. 105-14 (eff. Sept. 17, 1999); Extradition Treaty with Uruguay, Art. 13, 35
U.S.T. 3213-214 (1973); Hungarian Extradition Treaty, Art. 17, S. Treaty Doc. 104-5 (eff.
Dec. 9, 1996); Extradition Treaty with Thailand, Art. 14, S. Treaty Doc. 98-16 (eff. May 17,
1991); Bolivian Extradition Treaty, Art. XII, S. Treaty Doc. 104-22 (eff. Nov. 21, 1996);
Extradition Treaty with the Bahamas, Art. 14, S. Treaty Doc. 102-17 (eff. Sept. 22, 1994);
Jordanian Extradition Treaty, Art. 16, S. Treaty Doc. 104-3 (eff. July 29, 1995); Costa
Rican Extradition Treaty, Art. 16, S. Treaty Doc. 98-17 (eff. Oct. 11, 1991); Italian
Extradition Treaty, Art XVI, 35 U.S.T. 3038 (1984).
134

Gallo-Chamorro, 233 F.3d 1298, 1305 (11th Cir. 2000)(“Rather than mandating exact
uniformity between the charges set forth in the extradition request and the actual indictment,
what the doctrine of speciality requires is that the prosecution be based on the same facts
as those set forth in the request for extradition”); United States v. Sensi, 879 F.2d 888, 89596 (D.C.Cir. 1989); United States v. LeBaron, 156 F.3d 621, 627 (5th Cir. 1998)(“the
appropriate test for a violation of specialty is whether the extraditing country would consider
the acts for which the defendant was prosecuted as independent form those for which he was
extradited”); United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994); United States
v. Levy, 25 F.3d 146, 159 (2d Cir. 1994).
135

United States v. Garrido-Santana, 360 F.3d 565, 577-78 (6th Cir. 2004); United States
v. Lazsarevich, 147 F.3d 1061, 1064-65 (9th Cir. 1998)(also noting that the doctrine of
specialty “exists only to the extent that the surrendering country wishes” and there was no
evidence of a demand that the doctrine be applied).
136

United States v. Saccoccia, 58 F.3d 754, 784 (1st Cir. 1995).
2010FOIA4519.000367

CRS-33
applicable treaty addresses the question, the rule is no bar to prosecution for crimes
committed after the individual is extradited.137
The doctrine may be of limited advantage to a given defendant because the
circuits are divided over whether a defendant has standing to claim its benefits.138
Regardless of their view of fugitive standing, they agree that the surrendering state
may subsequently consent to trial for crimes other than those for which extradition
was had.139

Alternatives to Extradition
The existence of an extradition treaty does not preclude the United States
acquiring personal jurisdiction over a fugitive by other means, unless the treaty
expressly provides otherwise.140
Waiver.
Waiver or “simplified” treaty provisions allow a fugitive to consent to
extradition without the benefit of an extradition hearing.141 Although not universal,
137

United States v. Burke, 425 F.3d 400, 408 (7th Cir. 2005).

138

United States v. Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995)(“The question of whether
a criminal defendant has standing to assert a violation of the doctrine of specialty has split
the federal circuit courts of appeals”), noting decisions in favor of defendant standing,
United States v. Levy, 905 F.2d 326, 328 n.1 (10th Cir. 1990); United States v. Thirion, 813
F.2d 146, 151 n.5 (8th Cir. 1987); United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.
1986); and those holding to the contrary, United States v. Burke, 425 F.3d 400, 408 (7th Cir.
2005); United States v. Kaufman, 874 F.2d 242, 243 (5th Cir. 1989); Demjanjuk v. Petrovsky,
776 F.2d 571, 583-84 (6th Cir. 1985)); see also, United States v. Antonakeas, 255 F.3d 714,
719-20 (9th Cir. 2001)(defendant has standing to object to substantive but not procedural
noncompliance with applicable treaty requirements); United States ex rel. Saroop v. Garcia,
109 F.3d 165, 167-68 (3d Cir. 1997); The Extra in Extradition: The Impact of State v. Pang
on Extraditee Standing and Implicit Waiver, 24 JOURNAL OF LEGISLATION 111 (1998);
Standing to Allege Violations of the Doctrine of Specialty: An Examination of the
Relationship Between the Individual and the Sovereign, 62 UNIVERSITY OF CHICAGO LAW
REVIEW 1187 (1995); BASSIOUNI at 546-60.
The Ninth Circuit has held that convictions for an offense in violation of the principles
of dual criminality and/or specialty must be reversed, United States v. Anderson, 472 F.3d
662, 671 (9th Cir. 2006).
139

United States v. Tse, 135 F.3d 200, 205 (1st Cir. 1998); United States v. Puentes, 50 F.3d
1567, 1575 (11th Cir. 1995); ; United States v. Riviere, 924 F.2d 1289, 1300-1 (3d Cir.
1991); United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986).
140

United States v. Alvarez-Machain, 504 U.S. 655 (1992); United States v. Anderson, 472
F.3d 662, 666 (9th Cir. 2006); United States v. Mejia, 448 F.3d 436, 442-43 (D.C. Cir. 2006);
United States v. Arbane, 446 F.3d 1223, 1225 (11th Cir. 2006); Kasi v. Angelone, 300 F.3d
487, 493-95 (4th Cir. 2002); United States v. Noriega, 117 F.3d 1206, 1212-213 (11th Cir.
1997); United States v. Matt-Ballesteros, 71 F.3d 754, 762-63 (9th Cir. 1995).
141

E.g., Extradition Treaty with Thailand, Art. 15, S. Treaty Doc. 98-16 (eff. May 17,
1991) (“If the person sought irrevocably agrees in writing to extradition after personally
being advised by the competent authority of his right to formal extradition proceedings and
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the provisions constitute the least controversial of the alternatives to extradition.
Immigration Procedures.
Whether by a process similar to deportation or by simple expulsion, the United
States has had some success encouraging other countries to surrender fugitives other
than their own nationals without requiring recourse to extradition.142 Ordinarily,
American immigration procedures, on the other hand, have been less accommodating
and have been called into play only when extradition has been found wanting.143
They tend to be time consuming and usually can only be used in lieu of extradition
when the fugitive is an alien. Moreover, they frequently require the United States to
deposit the alien in a country other than one that seeks his or her extradition.144 Yet
in a few instances where an alien has been naturalized by deception or where the
procedures available against alien terrorists come into play, denaturalization or
deportation may be considered an attractive alternative or supplement to extradition
proceedings.145

the protection afforded by them, the Requested State may grant extradition without formal
extradition proceedings”); see also, Extradition Treaty with Cyprus, Art.17, S. Treaty Doc.
105-16 (eff. Sept. 14, 1999); Austrian Extradition Treaty, Art. 20, S. Treaty Doc. 105-50
(eff. Jan. 1, 2000); Costa Rican Extradition Treaty, Art. 17, S. Treaty Doc. 98-17 (eff. Oct.
11, 1991); Jordanian Extradition Treaty, Art. 17, S. Treaty Doc. 104-3 (eff. July 29, 1995);
Hungarian Extradition Treaty, Art. 18, S. Treaty Doc. 104-5; Extradition Treaty with the
Bahamas, Art. 15, S. Treaty Doc. 102-17 (eff. Sept. 22, 1994); Bolivian Extradition Treaty,
Art. XIII, S. Treaty Doc. 104-22 (eff. Nov. 21, 1996); Italian Extradition Treaty, Art XVII,
35 U.S.T. 3039 (1984); Jamaican Extradition Treaty, Art. XV, ¶1, S. Treaty Doc. 98-18
(eff. July 7, 1991); see generally, ABBELL & RISTAU at 143-46, 306-7.
142

United States v. Porter, 909 F.2d 789, 790 (4th Cir. 1990); United States v. Rezaq, 134
F.3d 1121, 1126 (D.C.Cir. 1998); BASSIOUNI, at 183-248; ABBELL & RISTAU §13-5-2(2) (“In
recent years, it has not been uncommon for foreign officials, particularly in lesser developed
countries, to put a person sought by the United States on an airplane bound for this country
in the custody of either United States law enforcement agents or their own law enforcement
agents. Such deportation takes place without the requested country resorting to its formal
administrative or judicial deportation procedures. It occurs most frequently in narcotics
cases, and generally takes place where there is a close working relationship between United
States law enforcement officers posted in that country and the police authorities of that
country . . . . In addition to informal deportation by airplane, there is a large volume of
informal deportations from Mexico to the United States. Most of these informal
deportations are based on informal arrangements among local United States and Mexican
law enforcement officials along the United States-Mexico border . . .”); see also, USAM
§§9-15.610, 9-15.640 noting the possibility of immigration exclusions and deportation as
an alternative to extradition and in the case of American fugitives the prospect of revoking
a fugitive’s U.S. passport in aid of such an alternative.

143

E.g., I.N.S. v. Doherty, 502 U.S. 314 (1992); Kelly, The Empire Strikes Back: The
Taking of Joe Doherty, 61 FORDHAM LAW REVIEW 317 (1992).

144

E.g., Kalejs v. I.N.S., 10 F.3d 441 (7th Cir. 1993)(deportation to Australia of a member
of a German mobile killing unit in World War II who falsified immigration forms but who
came to this country by way of Australia).

145

The United States has denaturalized and deported former Nazi death camp guards who
gained entry into the United States and/or American citizenship by concealing their pasts,
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Irregular Rendition/Abduction.
Although less frequently employed, American use of “irregular rendition” is a
familiar alternative to extradition.146 An alternative of last resort, it involves
kidnaping or deceit and generally has been reserved for terrorists, drug traffickers,
and the like.147 Kidnaping a defendant overseas and returning him to the United
States for trial does not deprive American courts of jurisdiction unless an applicable
extradition treaty explicitly calls for that result.148 Nor does it ordinarily expose the
United States to liability under the Federal Tort Claims Act nor individuals involved
in the abduction to liability under the Alien Tort Statute.149 The individuals involved
in the abduction, however, may face foreign prosecution, or at least be the subject of
a foreign extradition request.150 Moreover, the effort may strain diplomatic relations

e.g., United States v. Balsys, 524 U.S. 666 (1998); United States v. Stelmokas, 110 F.3d 302
(3d Cir. 1997); see also, The Denaturalization and Extradition of Ivan the Terrible, 26
RUTGERS LAW REVIEW 821 (1995); Bassiouni, at 183-232 (summarizing alternatives and
criticizing their use in some instances).
146

See generally, CRS Report RL32890, Renditions: Constraints Imposed by Laws on
Torture, by Michael Garcia.

147

United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006); United States v. Rezaq, 134 F.3d
1121 (D.C. Cir. 1998); United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991); United States
v. Noriega, 117 F.3d 1206 (11th Cir. 1997).

148

United States v. Alvarez-Machain, 504 U.S. 655 (1992); United States v. Torres
Gonzalez, 240 F.3d 14, 16 (1st Cir. 2001); United States v. Mejia, 448 F.3d 436, 442-43
(D.C. Cir. 2006); United States v. Arbane, 446 F.3d 1223, 1225 (11th Cir. 2006); Kasi v.
Angelone, 300 F.3d 487, 493-500 (4th Cir. 2002); see also, United States v. Anderson, 472
F.3d 662, 666 (9th Cir. 2006)(“a court is deprived of jurisdiction over an extradited
defendant, if either (1) the transfer of the defendant violated the applicable extradition
treaty, or (2) the United States government engaged in ‘misconduct of the most shocking and
outrageous kind,’ to obtain his presence”).
149

Sosa v. Alvarez-Machain, 542 U.S. 692, 699-738 (2004). Yet if the abducted defendant
is an American, the individuals involved may face civil liability under Bivens, cf., Id. at 73637.

150

Kear v. Hilton, 699 F.2d 181 (4th Cir. 1983); Extradition of Government Agents as a
Municipal Law Remedy for State-Sponsored Kidnaping, 81 CALIFORNIA LAW REVIEW 1541
(1993); Transborder Abductions by American Bounty Hunters—The Jaffe Case and a New
Understanding Between the United States and Canada, 20 GEORGIA JOURNAL OF
INTERNATIONAL & COMPARATIVE LAW 489 (1990).
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CRS-36
with the country from which the fugitive is lured or abducted.151
Foreign Prosecution.
A final alternative when extradition for trial in the United States is not available,
is trial within the country of refuge. The alternative exists primarily when extradition
has been refused in because of the fugitive’s nationality and/or where the crime
occurred under circumstances that permit prosecution by either country for the same
misconduct.152 The alternative can be cumbersome and expensive and may be
contrary to U.S. policy objectives.153

151

USAM §9-15.620 (If the fugitive travels outside the country from which he or she is not
extraditable, it may be possible to request his or her extradition form another country. This
method is often used for fugitives who are citizens in their country of refuge. Some
countries, however, will not permit extradition if the defendant has been lured into their
territory. Such ruses may also cause foreign relations problems with both the countries form
which and to which the lure takes place”); USAM §9-15.630 (“A lure involves using a
subterfuge to entice a criminal defendant to leave a foreign country so that he or she can be
arrested in the United States, in international waters or airspace, or in a third country for
subsequent extradition, expulsion, or deportation to the United States. . . . As noted above,
some countries will not extradite a person to the United Stats if the person’s presence in that
country was obtained through the use of a lure or other ruse. In addition, some countries
may view a lure of a person form its territory as an infringement on its sovereignty. . .”).
152

See, e.g., Hungarian Extradition Treaty, Art. 3, ¶2, S. Treaty Doc. 104-5 (eff. Dec. 9,
1996) (“If extradition is refused solely on the basis of the nationality of the person sought,
the Requested State shall, at the request of the Requesting State, submit the case to its
authorities for prosecution”); Austrian Extradition Treaty, Art.3, ¶¶1, 2, S. Treaty Doc. 10550 (eff. Jan. 1, 2002); Extradition Treaty with Cyprus, Art.3, ¶¶1, 2, S. Treaty Doc. 105-16
(eff. Sept. 14, 1999); Bolivian Extradition Treaty, Art. III, ¶3, S. Treaty Doc. 104-22 (eff.
Nov. 21, 1996); Extradition Treaty with Thailand, Art. 8, ¶2, S. Treaty Doc. 98-16 (eff. May
17, 1991); Costa Rican Extradition Treaty, Art. 8, ¶2, S. Treaty Doc. 98-17 (eff. Oct. 11,
1991); Jamaican Extradition Treaty, Art. VII, ¶¶2, 3, S. Treaty Doc. 98-18 (eff. July 7,
1991)(but also requiring extradition if a fugitive is a national of both the Requesting and
Requested State).
153

USAM §9-15.650 (“If the fugitive has taken refuge in the country of which he or she is
a national, and is thereby not extraditable, it may be possible to ask that country to prosecute
the individual for the crime that was committed in the United States. This can be an
expansive and time consuming process and in some countries domestic prosecution is
limited to certain specified offenses. In addition, a request for domestic prosecution in a
particular case may conflict with U.S. law enforcement efforts to change the ‘nonextradition of nations’ law or policy in the foreign country. . .”).
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CRS-37

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of Extradition, 26 UNIVERSITY OF PITTSBURGH LAW REVIEW 65 (1964)
Harvard Research in International Law, Draft Convention on Extradition, 29
AMERICAN JOURNAL OF INTERNATIONAL LAW 21 (Supp. 1935)
Kelly, The Empire Strikes Back: The Taking of Joe Doherty, 61 FORDHAM LAW
REVIEW 317 (1992)
Kennedy, et al., The Extradition of Mohammed Hamadei, 31 HARVARD
INTERNATIONAL LAW JOURNAL 5 (1990)
Kushen & Harris, Surrender of Fugitives by the United States to the War Crimes
Tribunals for Yugoslavia and Rwanda, 90 AMERICAN JOURNAL OF INTERNATIONAL
LAW 510 (1996)
Paust, After Alvarez-Machain: Abduction, Standing, Denials of Justice &
Unaddressed Human Rights Claims, 67 ST. JOHNS’ LAW REVIEW 551 (1993)
Parry, The Lost History of International Extradition Litigation, 43 VIRGINIA
JOURNAL OF INTERNATIONAL LAW 93 (2002)
Phillips, The Political Offense Exception and Terrorism: Its Place in the Current
Extradition Scheme and Proposals for the Future, 15 DICKINSON JOURNAL OF
INTERNATIONAL LAW 337 (1997)
Powers, Justice Denied? The Adjudication of Extradition Applications, 37 TEXAS
INTERNATIONAL LAW JOURNAL 277 (2002)
Rice & Luke, U.S. Courts, the Death Penalty, and the Doctrine of Specialty:
Enforcement in the Heart of Darkness, 42 SANTA CLARA LAW REVIEW 1061 (2002)
Sanders, In Search of an Alternative Remedy for Violations of Extradition Treaties,
34 SOUTHWESTERN UNIVERSITY LAW REVIEW 1 (2004)
Schachor-Landau, Extraterritorial Penal Jurisdiction and Extradition, 29
INTERNATIONAL & COMPARATIVE LAW QUARTERLY 274 (1980)
Schuetz, Apprehending Terrorists Overseas Under United States and International
Law; a Case of the Fawaz Younis Arrest, 29 HARVARD INTERNATIONAL LAW
JOURNAL 499 (1988)
Semmelman, The Doctrine of Specialty in the Federal Courts: Making Sense of
United States v. Rauscher, 34 VIRGINIA JOURNAL OF INTERNATIONAL LAW 71 (1993)
, Federal Courts, the Constitution, and the Rule of Non-Inquiry in International
Extradition Proceedings, 76 CORNELL LAW REVIEW 1198 (1991)

2010FOIA4519.000373

CRS-39
, The Rule of Non-Contradiction in International Extradition Proceedings: A
Proposed Approach to the Admission of Exculpatory Evidence, 23 FORDHAM
INTERNATIONAL LAW JOURNAL 1295 (2000)
Semmelman & Snell, Defending the International Extradition Case, CHAMPION 20
(June, 2006)
Sharfstein, European Courts, American Rights: Extradition and Prison Conditions,
67 BROOKLYN LAW REVIEW 719 (2002)
Sofaer, The Political Offense Exception and Terrorism, 15 DENVER JOURNAL OF
INTERNATIONAL LAW & POLICY 125 (1986)
Tate, Draft Evasion and the Problem of Extradition, 32 ALBANY LAW REVIEW 337
(1968)
United States House of Representatives, The Strange Case of Marc Rich:
Contracting With Tax Fugitives and at Large in the Alps: Hearings Before the
Government Information, Justice, and Agriculture Subcomm. of the Comm. on
Government Operations, 102d Cong., 1st & 2d Sess. (1992)
, Kidnaping Suspects Abroad: Hearings Before the Subcomm. on Civil and
Constitutional Rights of the Comm. on the Judiciary, 102d Cong., 2d Sess. (1992)
, Reform of the Extradition Laws of the United States: Hearings Before the
Subcomm. on Crime of the Comm. on the Judiciary, 98th Cong., 1st Sess. (1983)
, Extradition Reform Act of 1981: Hearings Before the Subcomm. on Crime of the
Comm. on the Judiciary, 97th Cong., 2d Sess. (1982)
United States Senate, United States and United Kingdom Supplementary Extradition
Treaty: Hearings Before the Comm. on Foreign Relations, 99th Cong., 1st Sess.
(1985)
Vagts, A Reply to “A Critical Evaluation of the Mexican-American Transfer of Penal
Sanctions Treaty”, 64 IOWA LAW REVIEW 325 (1979)
Weissbrodt & Bergquist, Extraordinary Rendition: A Human Rights Analysis, 19
HARVARD HUMAN RIGHTS JOURNAL 123 (2006)
Wiehl, Extradition Law at the Crossroads: The Trend Toward Extending Greater
Constitutional Procedural Protections to Fugitives Fighting Extradition from the
United States, 19 MICHIGAN JOURNAL OF INTERNATIONAL LAW 729 (1998)
Wise, Some Problems of Extradition, 15 WAYNE LAW REVIEW 709 (1968)

2010FOIA4519.000374

CRS-40
Notes and Comments.
Collaring Drug Kingpins: International Extradition and Continuing Criminal
Enterprise in United State v. Levy, 16 MARYLAND JOURNAL OF INTERNATIONAL LAW
& TRADE 127 (1992)
Comparative Application of the Non-Discrimination Clause in the U.S.-U.K.
Supplementary Extradition Treaty, 5 TRANSNATIONAL LAW & CONTEMPORARY
PROBLEMS 493 (1993)
The Denaturalization and Extradition of Ivan the Terrible, 26 RUTGERS LAW
JOURNAL 821 (1995)
Extradition of Government Agents as a Municipal Law Remedy for State-Sponsored
Kidnaping, 81 CALIFORNIA LAW REVIEW 1541 (1993)
The Extra in Extradition: The Impact of State v. Pang on Extraditee Standing and
Implicit Waiver, 24 JOURNAL OF LEGISLATION 111 (1998)
The Hydraulic Pressure of Vengeance: United States v. Alvarez Machain and the
Case for Justifiable Abduction, 43 DEPAUL UNIVERSITY LAW REVIEW 449 (1994)
In re McMullen and the Supplementary Extradition Treaty: An Unconstitutional Bill
of Attainder?, 11 NEW YORK INTERNATIONAL LAW REVIEW 139 (1998)
Innocence Abroad: An Analysis of the Constitutionality of International Extradition,
33 STANFORD JOURNAL OF INTERNATIONAL LAW 343 (1997)
International and Domestic Approaches to Constitutional Protections of Individual
Rights: Reconciling the Soering and Kindler Decisions, 34 AMERICAN CRIMINAL
LAW REVIEW 225 (1996)
International Extradition: Issues Arising Under the Dual Criminality Requirement,
1992 BRIGHAM YOUNG UNIVERSITY LAW REVIEW 191
International Extradition and the Right to Bail, 34 STANFORD JOURNAL
INTERNATIONAL LAW 407 (1998)

OF

The New Extradition Treaties of the United States, 59 AMERICAN JOURNAL
INTERNATIONAL LAW 351 (1965)

OF

A Preemptive Strike: Using RICO and the AEDPA to Attack the Financial Strength
of International Terrorist Organizations, 78 BOSTON UNIVERSITY LAW REVIEW 177
(1998)
RICO, CCE, and International Extradition, 62 TEMPLE LAW REVIEW 1281 (1989)
Should the End Justify the Means? United States v. Matta-Ballesteros and the
Demise of the Supervisory Powers, 21 NORTH CAROLINA JOURNAL OF
INTERNATIONAL & COMPARATIVE REGULATION 561 (1996)
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CRS-41
Standing to Allege Violations of the Doctrine of Specialty: An Examination of the
Relationship Between the Individual and the Sovereign, 62 UNIVERSITY OF CHICAGO
LAW REVIEW 1187 (1995)
Transborder Abductions by American Bounty Hunters—The Jaffe Case and a New
Understanding Between the United States and Canada, 20 GEORGIA JOURNAL OF
INTERNATIONAL & COMPARATIVE LAW 489 (1990)

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CRS-42

Appendix
Countries with Whom the United States Has an Extradition
Treaty
Country

Citation

Albania
Antigua and Barbuda
Argentina

49 Stat. 3313.
T.Doc. 104-19 (entered into force 7/1/99)
2159 UNTS 129

Australia
Austria
Bahamas

27 UST 957.
1736 UNTS 344
T.Doc. 105-50 (entered into force 1/1/00)
T.Doc. 102-17 (entered into force 9/22/94)

Barbados
Belgium

T.Doc. 105-20 (entered into force 3/3/00)
2093 UNTS 263

Belize
Bolivia
Brazil

T.Doc. 106-38 (entered into force 3/27/01)
T.Doc. 104-22 (entered into force 11/21/96)
15 UST 2093.
15 UST 2112.

Bulgaria

43 Stat. 1886.
49 Stat. 3250.
47 Stat. 2122.
27 UST 983.
27 UST 1017.
1853 UNTS 407
T.Doc. 107-11
32 Stat. 1850.

Burma
Canada

Chile
Colombia
Congo

TIAS
(entered into force 3/4/82)
37 Stat. 1526.
46 Stat. 2276.
50 Stat. 1117.
13 UST 2065.

Costa Rica
Cuba

T.Doc. 98-17 (entered into force 10/11/91)
33 Stat. 2265.
33 Stat. 2273.
44 Stat. 2392.

Cyprus
Czech Republic

T.Doc. 105-16 (entered into force 9/14/99)
44 Stat. 2367.
49 Stat. 3253.

Denmark
Dominica

25 UST 1293.
T.Doc. 105-19 (entered into force 5/25/00)

Dominican Republic
Ecuador

36 Stat. 2468.
18 Stat. 199.
55 Stat. 1196.

Egypt
El Salvador

19 Stat. 572.
37 Stat. 1516.

2010FOIA4519.000377

CRS-43
Estonia

43 Stat. 1849.
49 Stat. 3190.

Fiji

47 Stat. 2122.
24 UST 1965.

Finland
France

31 UST 944.
2179 UNTS 341

Gambia
Germany,
Federal Republic of

47 Stat. 2122.
32 UST 1485.
1909 UNTS 441

Ghana
Greece

47 Stat. 2122.
47 Stat. 2185.
51 Stat. 357.

Grenada
Guatemala

T.Doc. 105-19 (entered into force 9/14/99)
33 Stat. 2147.
55 Stat. 1097.

Guyana
Haiti
Honduras

47 Stat. 2122.
34 Stat. 2858.
37 Stat. 1616.
45 Stat. 2489.

Hong Kong
Hungary
Iceland

T.Doc. 105-3 (entered into force 1/21/98)
T.Doc. 104-5 (entered into force 3/8/97)
32 Stat. 1096.
34 Stat. 2887.

India
Iraq
Ireland
Israel

T.Doc. 105-30 (entered into force 7/21/99)
49 Stat. 3380.
TIAS 10813
14 UST 1707.
18 UST 382.

Italy
Jamaica

TIAS 10837.
47 Stat. 2122.
T.Doc. 98-18 (entered into force 7/7/91)
31 UST 892.

Japan
Jordan
Kenya

T.Doc. 104-3 (entered into force:7/29/95)
47 Stat. 2122.
16 UST 1866.

Kiribati
Korea
Latvia

28 UST 227.
T.Doc. 106-2 (entered into force 12/20/99)
43 Stat. 1738.
49 Stat. 3131.

Lesotho
Liberia
Liechtenstein
Lithuania

47 Stat. 2122.
54 Stat. 1733.
50 Stat. 1337.
43 Stat. 1835.
49 Stat. 3077.

Luxembourg
Malawi

T.Doc. 105-10 (entered into force 2/1/02)
47 Stat. 2122.
18 UST 1822.
2010FOIA4519.000378

CRS-44
Malaysia
Malta
Mauritius
Mexico

T.Doc. 104-26 (entered into force 6/2/97).
47 Stat. 2122.
47 Stat. 2122.
31 UST 5059.
T.Doc. 105-46 (entered into force 5/21/01)

Monaco
Nauru
Netherlands154
New Zealand

54 Stat. 1780.
47 Stat. 2122.
TIAS 10733.
22 UST 1.

Nicaragua
Nigeria
Norway
Pakistan

35 Stat. 1869.
47 Stat. 2122.
31 UST 5619.
47 Stat. 2122.

Panama
Papua New Guinea
Paraguay

34 Stat. 2851.
47 Stat. 2122.
T.Doc. 106-4 (entered into force 3/9/01)

Peru
Philippines
Poland

31 Stat. 1921.
1994 UNTS 279
T.Doc. 105-14 (entered into force 9/17/99)

Portugal
Romania

35 Stat. 2071.
44 Stat. 2020.
50 Stat. 1349.

Saint Kitts
and Nevis
Saint Lucia
Saint Vincent &
the Grenadines
San Marino
Seychelles
Sierra Leone
Singapore
Slovak Republic

154

T.Doc. 105-19 (entered into force 2/23/00)
T.Doc. 105-19 (entered into force 2/2/00)
T.Doc. 105-19 (entered into force 9/8/99)
35 Stat. 1971.
49 Stat. 3198.
47 Stat. 2122.
47 Stat. 2122.
47 Stat. 2122.
20 UST 2764.
44 Stat. 2367.
49 Stat. 3253.

Solomon Islands
South Africa
Spain

28 UST 277.
T.Doc. 106-24 (entered into force 6/25/01)
22 UST 737.
29 UST 2283
TIAS
(entered into force 7/2/93)
TIAS (entered into force 7/25/99)

Sri Lanka
Suriname

T.Doc. 106-34 (entered into force 1/12/01)
26 Stat. 1481.
33 Stat. 2257.

Swaziland

47 Stat. 2122.
21 UST 1930.

Treaty entered into force for: Kingdom in Europe, Aruba, and Netherlands Antilles.
2010FOIA4519.000379

CRS-45
Sweden

14 UST 1845.
TIAS 10812.

Switzerland

T.Doc. 104-9 (entered into force 9/10/97)

Tanzania

47 Stat. 2122.
16 UST 2066.

Thailand

43 Stat. 1749.
T.Doc. 98-16 (entered into force 5/17/91)
47 Stat. 2122.
28 UST 5290.

Tonga
Trinidad and Tobago
Turkey
Tuvalu

T.Doc. 105-21 (entered into force 11/29/99)
32 UST 3111.
28 UST 227.
32 UST 1310.

United Kingdom

28 UST 227.
TIAS 12050.

Uruguay
Venezuela

TIAS 10850.
43 Stat. 1698.

Zambia
Zimbabwe

47 Stat. 2122.
T.Doc. 105-33(entered into force 4/26/00)

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CRS-46

Countries with Whom the United States Has
No Extradition Treaty
Afghanistan
Algeria
Andorra
Angola
Armenia
Azerbaijan
Bahrain
Bangladesh
Belarus
Benin
Bhutan
Bosnia
and Herzegovina*
Botswana
Brunei
Burkina Faso
Burundi
Cambodia
Cameroon
Cape Verde
Central African Republic
Chad
China
Comoros
Croatia*
Ivory Coast (Cote D’Ivoire)
Djibouti
Equatorial Guinea
Eritrea
Ethiopia

Georgia
Guinea
Guinea-Bissau
Indonesia
Iran
Kazakhstan
Korea, North
Kuwait
Kyrgyzstan
Laos
Lebanon
Libya
Macedonia*
Madagascar
Maldives
Mali
Marshall Islands**
Mauritania
Micronesia**
Moldova
Mongolia
Montenegro*
Morocco
Mozambique
Namibia
Nepal
Niger
Oman
Palau**

Qatar
Russian Federation
Rwanda
Sao Tome & Principe
Saudi Arabia
Senegal
Slovenia*
Somalia
Sudan
Syria
Taiwan
Tajikistan
Togo
Tunisia
Turkmenistan
Uganda
Ukraine
United Arab Emirates
Uzbekistan
Vanuatu
Vatican City
Vietnam
Western Samoa
Yemen, Republic of
Yugoslavia*
Zaire

* The United States had an extradition treaty with the former Yugoslavia prior to its breakup (32
Stat. 1890). Since then, it has recognized at least some of the countries which were once part of
Yugoslavia as successor nations, see e.g., Arambasic v. Ashcroft, 403 F.Supp.2d 951 (D.S.D. 2005)
(Croatia); Sacirbey v. Guccione, 2006 WL 2585561 (No. 05 Cv. 2949(BSJ)(FM))(S.D.N.Y. Sept. 7,
2006)(Bosnia and Herzogovina).
** Although not specifically identified in the State Department's TREATIES IN FORCE (1998), the
United States apparently has extradition agreements with the Republics of Palau, the Marshall Islands,
and Micronesia, cf., In re Extradition of Lin, 915 F.Supp. 206, 207 (D.Guam 1995); P.L. 99-239, 99 Stat.
1770 (1986); H.Rept. 99-188 (Pt.1) 192 (1985).

2010FOIA4519.000381

CONFIDENTIALITY PROVISIONS

I.

Asylum

A.

Prohibition: 8 C.F.R. § 1208.6 Disclosure to third parties:
(a) Information contained in or pertaining to any asylum application, records
pertaining to any credible fear determination conducted pursuant to §1208.30,
and records pertaining to any reasonable fear determination conducted pursuant
to §1208.31, shall not be disclosed without the written consent of the applicant,
except as permitted by this section or at the discretion of the Attorney General.
(b) The confidentiality of other records kept by the Service and the Executive
Office for Immigration Review that indicate that a specific alien has applied for
asylum, received a credible fear or reasonable fear interview, or received a
credible fear or reasonable fear review shall also be protected from disclosure.
The Service will coordinate with the Department of State to ensure that the
confidentiality of those records is maintained if they are transmitted to
Department of State offices in other countries.
(c) This section shall not apply to any disclosure to:
(1) Any United States Government official or contractor having a need to
examine information in connection with:
(i) The adjudication of asylum applications;
(ii) The consideration of a request for a credible fear or reasonable fear interview,
or a credible fear or reasonable fear review;
(iii) The defense of any legal action arising from the adjudication of, or failure to
adjudicate, the asylum application, or from a credible fear determination or
reasonable fear determination under §1208.30 or §1208.31;
(iv) The defense of any legal action of which the asylum application, credible
fear determination, or reasonable fear determination is a part; or
(v) Any United States Government investigation concerning any criminal or civil
matter; or
(2) Any Federal, State, or local court in the United States considering any legal
action:
(i) Arising from the adjudication of, or failure to adjudicate, the asylum
application, or from a credible fear or reasonable fear determination under
§1208.30 or §1208.31; or

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Assistant Chief Counsel
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2010FOIA4519.000382

(ii) Arising from the proceedings of which the asylum application, credible fear
determination, or reasonable fear determination is a part.

B.

Waiver:
A written waiver is required from the applicant. For example:
WAIVER OF CONFIDENTIALITY
I,
, with A number
, do hereby knowingly,
voluntarily and willingly waive my right to the confidentiality of my
asylum application under 8 C.F.R. § 1208.6 (Disclosure to Third Parties)
(2006). I agree to be a witness in the above-captioned matter, knowing
that this written consent will allow the information contained in my A-file
to be disclosed to third parties.
_________________
Signature of Witness

C.

_______________
Date

Overseas Investigations:
Assistant Chief Counsel’s should seek guidance from the appropriate POC,
Deputy or Chief Counsel. ACC’s should not contact the Department of State
directly.

II.

Legalization/Amnesty

LIMITED USE MATERIAL-USED IN DECISION ON LEGALIZATION/SAW
APPLICATION
Introduction:
Sections 210 and 245A of the Immigration and Nationality Act provide for
confidentiality of information submitted to the Government by aliens who applied for
temporary resident status. INA §210 relates to Special Agricultural Workers (SAW) or
Amnesty, filed on Form I-700. INA §245A relates to Legalization, filed on Form I-687.
A.

Confidentiality under Sections 210(b)(6) and 245A(c)(5):
Except as provided in this paragraph, neither the Attorney General, nor any other
official or employee of the Department of Justice, or bureau or agency thereof, mayi)
use the information furnished by the applicant pursuant to an
application filed under this section for any purpose other than to
make a determination on the application, including a determination
under subsection (a)(3)(B), or for enforcement of paragraph 7;
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Assistant Chief Counsel
Seattle Office of Chief Counsel
2010FOIA4519.000383

ii)

make any publication whereby the information furnished by any
particular individual can be identified; or
iii)
permit anyone other than the sworn officers and employees of the
Department or bureau or agency or, with respect to application filed
with a designated entity, that designated entity, to examine individual
applications.
Purpose:

B.

The purpose of the confidentiality provisions were to assure applicants that the
legalization process was designed to regularized the status of certain undocumented
aliens, and not a ruse to invite undocumented aliens to come forward only to be
caught by the Government.
C.

Red Sheet Form M-330:
The Red Sheet is a coversheet usually on the right side of a SAW or Legalization file.
The coversheet indicates that the materials are confidential under the Immigration and
Reform Control Act of 1986 (IRCA). Additionally, there is a limited use of
information and documents submitted in connection with the application.
Files that contain legalization applications start with a 90 million number. If an A file
does not contain a Red Cover Sheet for the temporary residence application the
confidentiality/limited use provisions still apply.

D.

Removal Proceedings:
Removal proceedings cannot be based solely upon information from a temporary
residence application. For example, if an alien walks into a DHS office and inquires
as to status, a records check indicates that the application was denied.
Status information may be used in the preparation of I-213s, charging documents, and
proof of proceedings after the alien’s name is obtained independently:
i)
The decision on the legalization application (grant or deny);
ii)
The date of the decision;
iii)
The date of any subsequent adjustment.
For example, an alien is encountered in a local jail, the records check indicates that
the alien’s application was denied, a Notice to Appear can be issued where the alien
has no status.

E.

Limited Use of Information:
•

A legalization file can be examined in order to determine a person’s identity.

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Assistant Chief Counsel
Seattle Office of Chief Counsel
2010FOIA4519.000384

F.

•

The confidentiality provisions remain applicable to information furnished
pursuant to an application even after a grant of lawful permanent status.

•

An alien may request copies of documents to the legalization application to use in
pursuing other benefits.

•

The confidentiality provisions can not be waived by an individual applicant.

•

Information provided in an application to adjust status to a lawful temporary
resident under Section 210 can not be used in a Rescission proceedings?
Criminal Penalties under Section 210(b)(6) and 245A(c)(5)(E):

Whoever knowingly uses, publishes, or permits information to be examined in
violation shall be fined not more than $10,000.

III. Violence Against Women Act (VAWA), as amended by Violence Against
Women and Department of Justice Reauthorization Act of 2005
A.

Application:
Battered spouses and children may apply to self- petition by filing Form I-360.
Section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA) Prohibits Department of Justice employees from making an adverse
determination of admissibility or deportability of an alien using information provided
solely by:
1. a spouse or parent who has battered the alien or subjected the alien to extreme
cruelty;
2. a member of the spouse’s or parent’s family residing in the same household as
the alien who has battered the alien or subjected the alien to extreme cruelty
when the spouse or parent consented to or acquiesced in such batter or cruelty;
3. a spouse or parent who has battered the alien’s child or subjected the alien’s
child to extreme cruelty (without the active participation of the alien in the
battery or extreme cruelty); and
4. a member of the spouse’s or parent’s family residing in the same household as
the alien who has battered the alien’s child or subjected alien’s child to
extreme cruelty when the spouse or parent consented to or acquiesced in such
battery or cruelty and the alien did not actively participate in such batter or
cruelty.
5. Any adverse information received by the government from a self-petitioner’s
U.S. citizen or lawful permanent resident spouse or parent, or from relatives
of that spouse or parent, must be independently corroborated by an unrelated

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Seattle Office of Chief Counsel
2010FOIA4519.000385

source before the government may take adverse action based on such
information. 1
B.

Prohibition:
Department of Justice employees are prohibited from permitting the use or disclosure
to anyone (other than a sworn officer or employee of the Department, or bureau or
agency thereof, for legitimate Department, bureau, or agency purposes) of any
information that relates to an alien who is the beneficiary of a VAWA-based selfpetition. IIRIRA §384(a)(2).

C. Penalties:
Anyone who willfully uses, publishes, or permits such information to be disclosed in
violation of $5000 for each violation. IIRIRA §384(c).
D. Section 817 Amendments:
•

Amends Section 384 of IIRIRA, the VAWA confidentiality provision, by
explicitly applying the provision’s confidentiality requirements to DHS and its
agencies and bureaus.

•

Further amends Section 384 of IIRIRA to prohibit DHS and the Department of
Justice from making an adverse determination of “admissibility or deportability”
of a VAWA self-petitioner (or a T or U visa applicant) using information
furnished solely by the self-petitioner’s (or applicant’s) trafficker or perpetrator.

•

Further amends Section 384 of IIRIRA by creating a new exception to the VAWA
confidentiality requirements: specifically, to allow DHS and DOJ to disclose
protected VAWA information pertaining to “closed cases” to the chairmen and
ranking members of the House and Senate judiciary committees “for the exercise
of congressional oversight authority.” Such disclosures must be in a manner that
protects the identity and confidentiality of self-petitioners and T and U visa
applicants.

•

Further amends Section 384 of IIRIRA by creating a new exception to the
VAWA confidentiality requirements: specifically, to allow DHS and DOJ to
disclose protected VAWA information to nonprofit, nongovernmental victims’
services providers for the sole purpose of assisting the victims with obtaining
victim services from programs with expertise working with immigrant victims.
However, the applicable alien’s prior written consent must be obtained before
such a disclosure may occur.

1

See Virtue, INS Office of Programs, “Non-Disclosure and Other Prohibitions Relating to Battered Aliens:
IIRIRA §384”, Mem.act.036 (May 5, 1997).
Tammy L. Fitting
5
Assistant Chief Counsel
Seattle Office of Chief Counsel
2010FOIA4519.000386

•

Further amends Section 384 of IIRIRA by extending the penalty provisions of the
section to DHS employees who falsely certify on an alien’s NTA that DHS has
complied with the VAWA confidentiality provisions of Section 384 of IIRIRA if
the enforcement action which resulted in the alien being placed in removal
proceedings occurred at a domestic violence shelter, a rape crisis center, a
victim/witness services provider, a community-based organization, at a
courthouse where there alien is appearing in connection to a protection order case,
child custody case, or other civil or criminal case relating to domestic violence,
sexual assault, trafficking, or stalking in which the alien has been battered or
subject to extreme cruelty (or is eligible for a T/U visa). See Sec. 825(c).

•

Requires DHS and DOJ to provide “guidance” to their officers and employees
who have access to VAWA information, “including the provisions to protect
victims of domestic violence from harm that could result from the inappropriate
disclosure of covered information.”

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Assistant Chief Counsel
Seattle Office of Chief Counsel
2010FOIA4519.000387

COMMON CLASS OF ADMISSION CODES
IMPORTANT NOTE: This is only a short list of common Class of Admission codes (COAs) for aliens that are placed into the Central Index System (CIS),
on Permanent Resident Cards (I-551s), and on I-94s. It is not a complete list covering every category of relief that an Immigration Judge or the BIA
may grant. ICE Counsel will only need the column labeled "Adjust" for aliens in removal proceedings. If an alien has been granted relief under a
category of law not covered by this short list of COAs, please either refer to the full list of COAs that accompanies the CIS or communicate with your
USCIS points of contact to determine the appropriate code. COAs are relied upon by port inspectors, adjudicators, public benefit agencies, DHS
immigration statisticians, and others, thus selecting the correct code is important.
Immigrant Code

Basis of eligibility upon which permanent residence granted
Immediate Relative of a U.S.C. [Sec. 201(b)(2)(A)(i)]
Parent of U.S.C.
Spouse of U.S.C.
Child of U.S.C.
Orphan adopted abroad by U.S.C.
Orphan to be adopted by U.S.C.
Widow or widower of a U.S.C.
Child of IW1 or IW6 [Sec. 201 amended by PL 103-416]
Immediate Relative of a U.S.C. - conditional status [Sec. 201 and Sec. 216]
Spouse of U.S.C.
Step-child of U.S.C.
Other Relative of U.S.C. [Sec. 203]
Unmarried son or daughter of a U.S.C. [Sec. 203(a)(1)]
Child of F11 or F16 [Sec. 203(d)]
Married son or daughter of a U.S.C.
Spouse of F31 or F36
Child of F31 or F36
Brother or sister of a U.S.C.
Spouse of F41 or F46
Child of F41 or F46
Other Relative of U.S.C. - conditional status [Sec. 203 and Sec. 216]
Married son or daughter who is step-child of U.S.C.
Spouse of C31 or C36
Child of C31 or C36
Fiance adjustment [Sec. 214(d)]
Fiance or fiancee adjustment after marriage to U.S.C.
Minor child of IF1
Fiance adjustment - conditional status [Sec. 214(d) and Sec. 216]
Fiance or fiancee adjustment after marriage to U.S.C. [Sec. 214(d) and 216; PL 99-639]
Minor child of CF1
AmerAsian
Unmarried Amerasian son or daughter of U.S.C. [Sec. 203(a)(1) and 204(g)]
Child of A11 or A16
Married Amerasian son or daughter of U.S.C. [Sec. 203(a)(3) and 204(g)]
Spouse of A31 or A36
Child of A31 or A36
Amerasian born in Vietnam after Jan. 1, 1962 and before Jan. 1, 1976, U.S.C. father [Sec. 584(b)(1)(A) of PL 100-202]
Spouse or child of AM1 or AM6
Mother, guardian, or next-of-kin of AM1 or AM6, and spouse or child of the mother, guardian, or next-of-kin.
Amerasian immediate relative child of U.S.C. [Sec. 201(b)(2)(A)(i) and 204(g)]
Relative of Permanent Resident [Sec. 203]
Spouse of Permanent Resident
Child of F21 or F26
Child (under 21 years of age) of Permanent Resident
Unmarried son or daughter of Permanent Resident
Child of F24 or F29
Spouse of Permanent Resident (exempt from country limitations)
Child of Permanent Resident (exempt from country limitations)
Child of FX1, FX2, FX7, or FX8
Child born during temporary visit abroad of mother who is Permanent Resident or U.S. national [8 CFR 211.1]
Relative of Permament Resident - conditional status [Sec. 203 and Sec. 216]
Spouse of Permanent Resident
Step-child (under 21 years of age) of Permanent Resident
Child of a C21, C22, C26 or C27 alien
Unmarried son or daughter (21 years of age or older) who is the step-child of Permanent Resident
Child of C24 or C29
Spouse of Permanent Resident (exempt from country limitations)
Step-child (under 21 years of age) of Permanent Resident (exempt from country limitations)
Child of CX2 or CX7
Self-petitioning relative [Sec. 40701 of PL 103-322]
Self-petition spouse of U.S.C.
Page 1

Entry

Adjust

IR5
IR1
IR2
IR3
IR4
IW1
IW2

IR0
IR6
IR7
IR8
IR9
IW6
IW7

CR1
CR2

CR6
CR7

F11
F12
F31
F32
F33
F41
F42
F43

F16
F17
F36
F37
F38
F46
F47
F48

C31
C32
C33

C36
C37
C38
IF1
IF2
CF1
CF2

A11
A12
A31
A32
A33
AM1
AM2
AM3
AR1

A16
A17
A36
A37
A38
AM6
AM7
AM8
AR6

F21
F23
F22
F24
F25
FX1
FX2
FX3
NA3

F26
F28
F27
F29
F20
FX6
FX7
FX8

C21
C22
C23
C24
C25
CX1
CX2
CX3

C26
C27
C28
C29
C20
CX6
CX7
CX8

IB1

IB6

2010FOIA4519.000388

Immigrant Code

Basis of eligibility upon which permanent residence granted

Entry

Child of IB1 or IB6
IB3
Self-petition child of U.S.C.
IB2
Self-petition unmarried son/daughter of U.S.C.
B11
Child of B11 or B16
B12
Self-petition spouse of Permanent Resident
B21
Self-petition child of Permanent Resident
B22
Child of B21, B22, B26 or B27
B23
Self-petition unmarried son/daughter of Permanent Resident
B24
Child of B24 or B29
B25
Self-petition married son/daughter of U.S.C.
B31
Spouse of B31 or B36
B32
Child of B31 or B36
B33
Self-petition spouse of Permanent Resident - exempt
BX1
Self-petition child of Permanent Resident - exempt
BX2
Child of BX1, BX2, BX6 or BX7
BX3
Workers
Priority worker - alien with extraordinary ability [Sec. 203(b)(a)(A)]
E11
Priority worker - outstanding professor or researcher [Sec. 203(b)(1)(B)]
E12
Priority worker - certain multinational executive or manager [Sec. 203(b)(1)©]
E13
Spouse of E11, E16, E12, E17, E13, or E18 [Sec. 203(d)]
E14
Child of E11, E16, E12, E17, E13, or E18 [Sec. 203(d)]
E15
Professional with advanced degree, or of exceptional ability [Sec. 203(b)(2)]
E21
Spouse of E21 or E26 [Sec. 203(d)]
E22
Child of E21 or E26 [Sec. 203(d)]
E23
Skilled worker [Sec. 203(b)(3)(A)(i)]
E31
Professional with a baccalaureate degree, or who is a member of a profession [Sec. 203(b)(3)(A)(ii)]
E32
Spouse of E31, E36, E32, or E37 [Sec. 203(d)]
E34
Child of E31, E36, E32, or E37 [Sec. 203(d)]
E35
Soviet scientist, principal [Sec. 203(b)(2) as amended by Sec. 4 of PL 102-509
ES1
Other worker performing unskilled labor [Sec. 203(b)(3)(A)(iii)]
EW3
Spouse of EW3 or EW8 [Sec. 203(d)]
EW4
Child of EW3 or EW8 [Sec. 203(d)]
EW5
Employees of certain U.S. businesses operating in Hong Kong [Sec. 124 of PL 101-649]
HK1
Spouse of HK1 or HK6.
HK2
Child of HK1 or HK6.
HK3
Certain former H1 nonimmigrant registered nurses [Sec. 2 of PL 101-238]
Spouse or child of RN6.
Schedule-A worker [Title IV, Section 502 of the Real ID Act of 2005]
EX1
Spouse of EX1
EX2
Child of EX1
EX3
Broadcasters and International Broadcasting Bureau of the Broadcasting Board of Governors [Sec. 101(a)(27) as added by PL 106-536]
Broadcaster to work for a grantee for the IBCB of BBG
BC1
Spouse of BC6
BC2
Child of BC6
BC3
Employment creation and Investors
Alien who filed and was qualified with investor status prior to June 1, 1978 [Sec. 19 of PL 97-116]
Spouse or child of an NP8.
Investor Pilot Program targeted area, principal - conditional [Sec. 203(b)(5) and Sec. 610 of PL 102-395]
I51
Spouse of I51 or I56
I52
Child of I51 or I56
I53
Investor pilot program not targeted, principal - conditional [Sec. 203(b)(5) and Sec. 610 of PL 102-395]
R51
Spouse of R51 or R56
R52
Child of R51 or R56
R53
Employment creation immigrant [Sec. 203(b)(5)]
E51
Spouse of E51 or E56.
E52
Child of E51 or E56.
E53
Employment creation immigrant (not in targeted area) - conditional [Sec. 203(b)(5)(A)]
C51
Spouse of C51 or C56
C52
Child of C51 or C56
C53
Employment creation immigrant (targeted area) - conditional [Sec. 203(b)(5)(B)]
T51
Spouse of T51 or T56
T52
Child of T51 or T56
T53
Diversity programs
Diversity immigrant [Sec. 201 and 203(c) as amended by PL 101-649].
DV1
Spouse of DV1 or DV6.
DV2
Child of DV1 or DV6.
DV3
Diversity transition [Sec. 132 of PL 101-649]
AA1
Spouse of AA1 or AA6
AA2
Child of AA1 or AA6
AA3
Page 2

Adjust
IB8
IB7
B16
B17
B26
B27
B28
B29
B20
B36
B37
B38
BX6
BX7
BX8
E16
E17
E18
E19
E10
E26
E27
E28
E36
E37
E39
E30
ES6
EW8
EW9
EW0
HK6
HK7
HK8
RN6
RN7
EX6
EX7
EX8
BC6
BC7
BC8
NP8
NP9
I56
I57
I58
R56
R57
R58
E56
E57
E58
C56
C57
C58
T56
T57
T58
DV6
DV7
DV8
AA6
AA7
AA8

2010FOIA4519.000389

Immigrant Code

Basis of eligibility upon which permanent residence granted

Entry

Asylee and Refugee adjustment
Refugee in the United States prior to July 1, 1953 [Sec. 6 of PL 83-67]
Refugee paroled into the United States prior to Apr. 1, 1980 [Sec. 5 of PL 95-412]
Refugee who entered the United States on or after Apr. 1, 1980 [Sec. 209(a)]
Spouse of RE6 (spouse entered on or after Apr. 1, 1980)
Child of RE6 (child entered the United States on or after Apr. 1, 1980).
Other members of the case regarding an RE6 (entered the United States on or after Apr. 1, 1980).
Other members of the case deriving their refugee status from the principal applicant
Asylee adjustment [Sec. 209(b)]
Spouse of AS6
Child of AS6
Syrian Jewish national adjusting independent of normal asylee limit (limited to 2000) [PL 106-378]
Spouse of SY6
Child or unmarried son or daughter of SY6
HRIFA (Haitian Refugee Immigration Fairness Act, PL 105-277)
Haitian National adjusting status under HRIFA [Sec. 902(b)(1)(A) of PL 105-277]
Spouse of HA6.
Child of HA6.
Unmarried son or daughter of HA6.
Haitian National paroled into the U.S. prior to December 31, 1995, after having been identified as having a credible fear of
persecution, or paroled for emergent reasons or reasons strictly in the public interest [Sec. 902(b)(1)(A) of PL 105-277]
Spouse of HB6
Child of HB6
Unmarried son or daughter of HB6
Haitian National who entered the U.S. as a child prior to December 31, 1995, became orphaned subsequent to arrival in the U.S.,
and has remained parentless [Sec. 902(b)(1)(C)(iii) of PL 105-277]
Spouse of HC6
Child of HC6
Unmarried son or daughter of HC6 [Sec. 902(b)(1)(A) of PL 105-277]
Haitian National who entered U.S. as a child prior to 12/31/1995 and became orphaned after arrival [Sec. 902(b)(1)(C)(iii) of PL
105-277]
Spouse of HD6
Child of HD6
Unmarried son or daughter of HD6
A Haitian National who entered the U.S. as a child prior to December 31, 1995 was abandoned by parents or guardians prior to
April 1, 1998 and has remained abandoned [Sec. 902(b)(1)(C)(iii) of PL 105-277]
Spouse of HE6
Child of HE6
Unmarried son or daughter of HE6
IRCA and Cuban-Haitian entrant related
Cuban-Haitian entrant[ Sec. 202 of PL 99-603]
Spouse of an alien granted legalization under Sec 210, 245A, or Sec. 202 of PL 99-603 (Cuban-Haitian entrant) [Sec. 112 of PL
101-649]
Child of an alien granted legalization under Sections 210, 245A, or Sec. 202 of PL 99-603 (Cuban-Haitian entrant) [Sec. 112 of PL
101-649]
Spouse of alien granted legalization under Sec 210, 245A, or Sec 202 of PL 99-603 (Cuban-Haitian entrant) - conditional. [Sec. 112
of PL 101-649 and Sec. 216]
Child of alien granted legalization under Sec 210, 245A, or Sec. 202 of PL 99-603 (Cuban-Haitian entrant) - conditional. [Sec. 112
of PL 101-649 and Sec. 216]
Alien previously granted temporary resident status (legalization) who illegally entered the United States without inspection prior to
Jan. 1, 1982 [Sec. 245A(b)]
Alien previously granted temporary resident status (legalization) who entered the United States as a nonimmigrant and overstayed
visa prior to Jan. 1, 1982 [Sec. 245A(b)]
Alien previously granted temporary resident status (legalization) from a country granted blanket extended voluntary departure
(EVD) [Sec. 245A(b)]
Late amnesty applicants (IRCA) [LIFE Act (Legal Immigration Family Equity) and LIFE Act amendments of 2000
SAW (Seasonal Agricultural Worker) Group 1 -worked at least 90 days during each year ending on May 1, 1984, 1985, and 1986
SAW (Seasonal Agricultural Worker) Group 2 - worked at least 90 days during the year ending on May 1, 1986 [Sec. 210(2)(B)]
NACARA (Nicaraguan Adjustment and Central American Relief Act, PL 105-100)
Nicaraguan or Cuban national granted adjustment of status
Nicaraguan or Cuban national spouse of NC6
Nicaraguan or Cuban national child of NC6
Nicaraguan or Cuban national unmarried son/daughter of NC6
Northern Mariana Islands [Sec. 201(b)(2)(A)(i)and PL 94-241]
Parent of U.S.C. presumed to be a Permanent Resident
Spouse of U.S.C. presumed to be Permanent Resident
Child of U.S.C. presumed to be Permanent Resident
VTVPA (Victims of Trafficking and Violence Protection Act, PL 106-386)
Victim of severe form of trafficking (T1 nonimmigrant) granted adjustment of status
Page 3

Adjust
Y64
R86
RE6
RE7
RE8
RE9
RE4
AS6
AS7
AS8
SY6
SY7
SY8
HA6
HA7
HA8
HA9
HB6
HB7
HB8
HB9
HC6
HC7
HC8
HC9
HD6
HD7
HD8
HD9
HE6
HE7
HE8
HE9
CH6

LB1

LB6

LB2

LB7

CB1

CB6

CB2

CB7
W16
W26
W36
W46
S16
S26
NC6
NC7
NC8
NC9
MR0
MR6
MR7
ST6

2010FOIA4519.000390

Immigrant Code

Basis of eligibility upon which permanent residence granted

Entry

Spouse of ST6
Child of ST6
Sibling of ST6
Parent of ST6
Victim of criminal activity (U1 nonimmigrant) granted adjustment of status
Spouse of SU6
Child of SU6
Parent of SU6
Other Special adjustment programs
Cuban refugee [Sec. 1 of PL 89-732]
Non-Cuban spouse or child of CU6.
Alien covered by Chinese Student Protection Act [Sec. 245 as amended by PL 101-649 and PL 102-404]
Spouse of alien covered by Chinese Student Protection Act.
Child of alien covered by Chinese Student Protection Act.
Natives of Tibet who have continuously resided in Nepal or India (Displaced Tibetan) [Sec. 134 of PL 101-649]
Spouse of DT1 or DT6.
Child of DT1 or DT6.
Iraqi National - whose application for aslyum was processed in Guam between September 1,1996 and April 30, 1997, adjusting to
lawful permanent residence in the U.S. [Sec. 128 of PL 105-277]
Spouse of GA6
Child of GA6
Indochinese refugee [Sec. 101 of PL 95-145]
Spouse or child of an Indochinese refugee not qualified as a refugee on his or her own.
Indochinese Parolee [Sec. 586 of PL 106-429]
Certain parolees from the Soviet Union, Cambodia, Laos, or Vietnam who were denied refugee status and paroled between Aug.
15, 1988 and Sep. 30, 1999. [Sec. 599(E) of PL 101-167]
Refugee-escapee previously admitted for lawful permanent resident status [Fair Share Refugee Act, PL 86-648]
Hungarian parolee previously admitted for lawful permanent resident status [Hungarian Refugee Act, PL 85-559]
Polish or Hungarian nationa paroled into U.S. between Nov. 1, 1989 and Dec. 31, 1991 [Sec. 646 as added by PL 104-208]
Special Immigrants
Person who lost U.S. citizenship through marriage [Sec. 101(a)(27)(B) and 324(a)]
Person who lost U.S. citizenship by serving in foreign armed forces [Sec. 101(a)(27)(B) and 327]
Minister of religion [Sec. 101(a)(27)(C)(ii)(I)]
Spouse of SD1 or SD6.
Child of SD1 or SD6.
Certain employees or former employees of the U.S. government abroad [Sec. 101(a)(27)(D)]
Spouse of SE1 or SE6.
Child of SE1 or SE6.
Employee of U.S. Mission in Hong Kong [Sec. 152 of PL 101-649]
Certain former employees of the Panama Canal Company or Canal Zone Government [Sec. 101(a)(27)(E)]
Spouse or child of SF1 or SF6.
Certain former employees of the U.S. Government in the Panama Canal Zone[ Sec. 101(a)(27)(F)]
Spouse or child of SG1 or SG6.
Certain former employees of the Panama Canal Company or Canal Zone Government employed on Apr. 1, 1979 [Sec.
101(a)(27)(G)]
Spouse or child of SH1 or SH6.
Foreign medical school graduate licensed to practice in the United States on Jan. 9, 1978 [Sec. 101(a)(27)(H)]
Spouse or child of SJ6.
Certain retired international organization employees [Sec. 101(a)(27)(I)(iii)]
Spouse of SK1 or SK6[ Sec. 101(a)(27)(I)(iv)]
Certain unmarried sons or daughters of international organization employees [Sec. 101(a)(27)(I)(i)]
Unmarried son or daughter of an employee of an international organization [Section 312 of IRCA]
Certain surviving spouses of deceased international organization employees [Sec. 101(a)(27)(I)(ii)]
Juvenile court dependent[ Sec. 101(a)(27)(J)]
Alien recruited outside the U.S. who has served, or is enlisted to serve, in the U.S. Armed Forces for 12 years (became eligible
after Oct. 1, 1991) [Sec. 101(a)(27)(K)]
Spouse of an alien classified as SM1 or SM6.
Child of an alien classified as SM1 or SM6.
Alien recruited outside the U.S. who has served, or is enlisted to serve, in the U.S. Armed Forces for 12 years (eligible as of Oct.
1, 1991) [Sec. 101(a)(27)(K)]
Spouse or child of an alien classified as SM4 or SM9.
Certain retired NATO-6 civilian employees. [Sec 101(a)(27)(L)]
Spouse of SN1 or SN6
Certain unmarried sons or daughters of SN1 or SN6
Certain surviving spouses of deceased NATO-6 civilian employees
Religious worker [Sec. 101(a)(27)(C)(ii)(II) and (III)]
Spouse of SR1 or SR6.
Child of SR1 or SR6.
Born subsequent to issuance of IV [Sec. 211(a)(1)]
Child born subsequent to the issuance of a visa. Parent is employment-based preference immigrant.
Page 4

Adjust
ST7
ST8
ST9
ST0
SU6
SU7
SU8
SU0

DT1
DT2
DT3

CU6
CU7
EC6
EC7
EC8
DT6
DT7
DT8
GA6
GA7
GA8
IC6
IC7
ID6
LA6
M83
M93
PH6

SC1
SC2
SD1
SD2
SD3
SE1
SE2
SE3
SEH
SF1
SF2
SG1
SG2

SC6
SC7
SD6
SD7
SD8
SE6
SE7
SE8
SEK
SF6
SF7
SG6
SG7

SH1

SH6

SH2

SH7
SJ6
SJ7
SK6
SK7
SK8

SJ2
SK1
SK2
SK3
SK3
SK4
SL1

SK9
SL6

SM1

SM6

SM2
SM3

SM7
SM8

SM4

SM9

SM5
SN1
SN2
SN3
SN4
SR1
SR2
SR3

SM0
SN6
SN7
SN8
SN9
SR6
SR7
SR8

XE3

2010FOIA4519.000391

Immigrant Code

Basis of eligibility upon which permanent residence granted

Entry

Child born subsequent to the issuance of a visa. Parent is a family-based preference immigrant.
Child born subsequent to the issuance of a visa. Parent is not a family-based preference, employment-based preference, or
immediate relative immigrant.
Child born subsequent to the issuance of a visa. Parent is an immediate relative immigrant.
Other
Person presumed to have been admitted for permanent residence [8 CFR 101.1; OI 101.1]
Person granted permament residence under Sec. 249 based on entry prior to July 1, 1924.
Person granted permanent residence under Sec. 249 based on having entered U.S. after June 30, 1924 and prior to June 28,
1940.
Person granted permanent residence under Sec. 249 based on entry on or after June 28, 1940 and prior to Jan. 1, 1972
Private law, immediate relative of a U.S. citizen or special immigrant.
American Indian born in Canada (nonquota) [Sec. 289]
Foreign government official, immediate relative of a U.S. citizen or special immigrant. [Sec. 13 of PL 85-316]
Creation of record of Permanent Resident status for person born under diplomatic status in the U.S. [8 CFR 101.3]
Cancellation of removal/Suspension of Deportation
Cancellation of removal (VAWA) - granted suspension of deportation or cancellation of removal
Cancellation of removal (NACARA) - granted suspension of deportation or cancellation of removal and permanent residence [Sec
203 of PL 105-100]
Cancellation of removal - granted suspension of deportation (other than a crewman) and adjusted as an immediate relative of a
U.S.C or a special immigrant [Sec. 244[
Cancellation of removal - granted suspension of deportation after entry as a crewman on or before June 30, 1964, and adjusted as
an immediate relative of a U.S.C. or a special immigrant [Sec. 244]
Cancellation of removal - granted suspension of deportation (other than crewman) and adjusted as preference or non-preference
immigrant [Sec. 244(a)(5)]
Cancellation of removal - granted suspension of deportation after entry as crewman on or before June 30, 1964, and adjusted as
preference or non-preference immigrant [Sec. 244]

Page 5

Adjust

XF3
XN3
XR3
XB3
Z33
Z03
Z66
Z43
S13
Z83
DS1
Z14
Z15
Z13
Z56
Z11
Z57

2010FOIA4519.000392